Challenge to Child Abuse Expert Testimony Partially Granted

Plaintiff’s child abuse expert was allowed to provide opinions on child abuse case, except where testimony was speculative or unduly prejudicial.

Facts: This case (United States of America v. Dakota Lane Williston – United States District Court – Eastern District of Oklahoma – May 11th, 2015) involves the death of a two year old girl. The defendant, Dakota Lane Williston, was charged in the death of the daughter of his fiance. The plaintiff’s called Sarah Passmore, D.O. as an expert in child abuse. The defendant has filed a motion to exclude her testimony in that they do not meet the requirements under Daubert and Kumho Tire.

The court sent the motion for a hearing pursuant to Daubert/Kumho to a magistrate judge for a report and recommendations. A hearing was conducted on April 28th, 2015. The judge considered many aspects of the rules of Daubert, including whether Dr. Passmore was qualified to testify in this case, if her testimony was reliable, if it will assist the trier of fact, and if any of her opinions speculative or unduly prejudicial.

Discussion: First, the judge turned to the issue of qualifications. Dr. Passmore disclosed that she has been a pediatrician for fourteen years and has specialized in child abuse for the past eleven years. She is a board certified child abuse pediatrician and is Oklahoma’s Chief Child Abuse Examiner, sees 1,000 children a year who have possibly been the victim of child abuse. Dr. Passmore has testified in over 100 cases and has never had her testimony excluded in child abuse cases. The judge there found that Dr. Passmore is, thus, qualified to testify in this case.

Next, the judge moved to the issue of reliability. In order to testify in the present case, Dr. Passmore reviewed five records from hospitals and police departments regarding the suspected child abuse. The defendants argued that Dr. Passmore only reviewed documents provided to her by the plaintiff, not the defense; to which she replied that even if she had reviewed the documents produced by the defense, she would still opine that child abuse was present in this case. In addition, Dr. Passmore discussed “red flags” that were present in this case that would indicate a situation at home where child abuse was present. Based on this information, the judge concluded that her skill set, as well as her experience, would enable her to reliably conclude that child abuse was the cause of death.

We next turn to whether Dr. Prassmore’s testimony would assist the trier of facts. The judge decided that the testimony that the cause of death was child abuse would be helpful to the jury and that these issues are not common knowledge of a juror. The experts opinion, in this case, was not cumulative and prejudicial.

Last, the judge does note that certain parts of Dr. Prassmore’s testimony is speculative and unduly prejudicial. Such comments by Dr. Prassmore (ie, that this case was one of the two worst cases that she has seen, that the victim would have been crying and the beating would have been loud) should be excluded as it not based on her observations of the evidence in the case.

Held: The magistrate judge will propose the following: The expert testimony is granted in part and denied in part.

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