Maki v. Bremerton School District

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 WENDY A. MAKI, CASE NO. 3:19-cv-05901-RJB 11 Plaintiff, ORDER ON DEFENDANTS’ 12 v. MOTION TO EXCLUDE REPORT AND TESTIMONY OF JUDITH 13 BREMERTON SCHOOL DISTRICT, BILLINGS UNDER DAUBERT LINDA SULLIVAN-DUDZIC, and her AND RULE 702 14 marital community, SUSAN K. STONE, and her marital community, 15 Defendants. 16 17 THIS MATTER comes before the Court on Defendants’ Motion to Exclude Report and 18 Testimony of Judith Billings under Daubert and Rule 702. Dkt. 57. The Court has considered 19 the pleadings filed regarding the motion and the remaining file. 20 Plaintiff, Wendy Maki, is a former special education teacher in the Bremerton School 21 District. Dkt. 6. Plaintiff brings multiple claims against three defendants, the Bremerton School 22 District, Susan Stone, her former school principal, and Linda Sullivan-Dudzic, the school district 23 Director of Elementary Education and Special Programs. Id. The claims primarily relate to 24 1 allegations that Plaintiff was locked in a classroom with a student who was known to be violent. 2 Id. 3 Plaintiff retained Judith Billings to review Defendants’ policies and practices related to 4 the incident at issue. Dkt. 60. Defendants move to exclude Billings’ report and testimony for

5 three reasons: 6 (1) although admittedly not a medical expert nor has she reviewed plaintiff’s mental healthcare records, yet repeatedly opines that the School District caused harm to 7 plaintiff’s ‘physical and emotional health and safety’; (2) legally concludes that the School District’s alleged acts or omissions rise to the standard of ‘deliberate 8 indifference,’ and that the District violated plaintiff’s ‘liberty rights’ under the Eight [sic] Amendment; (3) written report contains a full recitation of what she 9 believes the facts to be, then testifies about the credibility and weight of the witnesses’ version of facts, directly invading the jury’s province.” 10 Dkt. 57 at 1–2. 11 Under Federal Rule of Evidence 702: 12 A witness who is qualified as an expert by knowledge, skill, experience, training, 13 or education may testify in the form of an opinion or otherwise if:

14 (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 15 (b) The testimony is based on sufficient facts or data; (c) The testimony is based on sufficient facts or data; 16 (d) The expert has reliably applied the principles and methods to the facts of the case. 17 Courts have “a gatekeeping role” in deciding the admissibility of evidence under Rule 702. 18 Daubert v. Merrell Dow Pharm., 509 U.S. 579, 597 (1993). Evidence must be both “relevant” 19 and “reliable.” Id. 20 Judith Billings should not be excluded as a witness. She has specialized knowledge 21 about the school system and its policies, and that knowledge may help the trier of fact understand 22 facts in issue. She is certainly a qualified expert. Nevertheless, she should not be allowed to 23 testify about all the matters in her report and deposition. A few examples follow: 24 1 1. An expert can testify to the evidence she assumed to be true in reaching opinions, 2 provided her assumptions are supported by the record. She cannot testify as to her opinion about 3 the credibility of witnesses and cannot be turned into a fact witness. Any testimony about facts 4 assumed should clearly indicate to the jury that they are assumptions.

5 2. Ms. Billings is not offered as a fact witness or a medical witness, and she cannot 6 opine on Plaintiff’s medical, emotional or mental status, or the causal relationship of that status 7 to acts of Defendants. 8 3. Although Ms. Billings is a trained, and qualified, lawyer, she is not allowed to 9 render legal opinions in court. For example, she cannot testify that someone was “deliberately 10 indifferent” or “negligent.” Those are terms of legal art, and legal meaning, and to have a 11 qualified lawyer testify in such terms is unfair. See ER 703. She may, however, testify as to 12 what assumed facts or other evidence, might lead the jury to those conclusions in regard to 13 negligence. In further example, she may testify about duty, breach and, perhaps, causation 14 without using the term “negligence,” or opining that there was “negligence” on the part of a

15 party. Evidence Rule 704(a) does not apply here due to, in part, Ms. Billings’ status as a lawyer. 16 Such issues are matters of admissibility and can be addressed at trial – or can be removed 17 as issues by careful questioning by counsel, and by full understanding of evidentiary limitations 18 on the part of the witness. 19 The listing of the foregoing examples is not intended to be a full list of possible issues. 20 Exclusion of the witness is not required. 21 Defendants’ Motion to Exclude Report and Testimony of Judith Billings under Daubert 22 and Rule 702 (Dkt. 57) is DENIED. 23 IT IS SO ORDERED.

24 1 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 2 to any party appearing pro se at said party’s last known address. 3 Dated this 30th day of November, 2020. A 4

5 ROBERT J. BRYAN United States District Judge 6

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