Parnes v. Orange County School Board

• Court: District Court, M.D. Florida
• Decided: September 24, 2024
• Docket: 6:23-cv-00854
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION JOY PARNES and BRIAN PARNES, Plaintiffs, Vv. Case No. 6:23-cv-854-JA-LHP ORANGE COUNTY SCHOOL BOARD, Defendant.

ORDER Before the Court is the Daubert motion of Defendant, Orange Count School Board (the Board).! (Doc. 53). Based on the Court’s review of the parties submissions, the motion must be granted in part and denied in part. I. BACKGROUND In May 2023, Joy and Brian Parnes filed this lawsuit against the Boar for disability discrimination and retaliation related to the education of thei minor daughter, S.P. (Doc. 1 at 15-25). Pursuant to Rule 702, the Parnese seek to introduce the opinion testimony of Timothy Conway, Ph.D. in support o their theory that S.P. requires accommodations and the cost of thos accommodations including private schooling. Fed. R. Evid. 702. The Board nov

1 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

moves to exclude all of Dr. Conway’s testimony. II. LEGAL STANDARD Federal Rule of Evidence 702 governs the admissibility of expert opinio testimony and “compels” the Court “to perform [a] critical ‘gatekeepin: function.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (e banc) (quoting Daubert, 509 U.S. at 589 n.7, 597); see Fed. R. Evid. 702 □□ witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if: (a) the expert’ scientific, technical, or other specialized knowledge will help the trier of fact t understand the evidence or to determine a fact in issue; (b) the testimony i based on sufficient facts or data; (c) the testimony is the product of reliabl principles and methods; and (d) the expert has reliably applied the principle and methods to the facts of the case.”). To decide the admissibility of an expert’s opinions, the Court “engage|[s in a rigorous three-part inquiry” and considers (1) whether the expert i qualified to provide the opinions, (2) whether “the methodology by which th: expert reache[d the opinions] is sufficiently reliable,” and (3) whether it providing the opinions, the expert will help the factfinder “understand th: evidence or... determine a fact in issue.” Frazier, 387 F.3d at 1260 (quotin; City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). To determine whether the expert’s methodology is reliable, the Cour

applies factors from Daubert and Joiner?: (1) whether the expert’s theory o technique can be (and has been) tested; (2) whether the expert’s theory o technique has been subjected to peer review and publication; (3) what the theor or technique’s known or potential rate of error is, and whether there ar standards controlling its operation; (4) whether the theory or technique i generally accepted in the field; and (5) whether there is an analytical ga between the data and the opinion proffered. Daubert, 509 U.S. at 593-94 Joiner, 522 U.S. at 146; see United States v. Pon, 963 F.3d 1207, 1220 (11th Cin June 29, 2020). “The party offering the expert has the burden of” establishin: the expert’s qualifications, the methodology’s reliability, and the opinions helpfulness to the factfinder “by a preponderance of the evidence.” Rink tu Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). Ill. DISCUSSION Dr. Conway was retained by the Parneses to opine on several issues it this case, including the accommodations that S.P. requires to catch up with he peer group and to participate in public or private school and S.P.’s need for anc costs of healthcare services and private schooling. (Doc. 53 at 3, 16; Doc. 61 a 2, 4; Doc. 61-4 at 4). Dr. Conway wrote in his expert report (Doc. 61-4) that S.P “needs high intensity, high frequency, evidence-based intervention for he:

2 Gen. Elec. Co. v. Joiner, 522 U.S. 186, 146 (1997).

[s]pecific [l]earning [d]isorders, AD/HD and her [d]evelopmental [c]oordinatio: [djisorder.” (Doc. 61-4 at 3). Dr. Conway opines based on his experienc “helping students with severe and many deficits,” his review of S.P.’s medica and school records, his evaluation of S.P., and speaking to the Parneses an family members. (Jd. at 4; Doc. 61 at 7—8; Doc. 61-3 17, 23, 35, 36). In fact, Dr. Conway evaluated S.P.’s records pertaining to her possibl enrollment in the online program “Neuro-development of Words, LLC (NOW!)—an EdTech company that Dr. Conway is affiliated with. (Doc. 61 at 7 Doc. 61-4 at 1-2, 4-5). Having done so, Dr. Conway opines that “only in-perso1 treatment... will improve [S.P.’s]...developmental difficulties that ar essential for paper and pencil, desktop and board to paper academic activities. (Doc. 61 at 7; Doc. 61-4 at 1-2, 4-5). And he opines that S.P. will need “6 hour per day, five days per week of one-to-one... treatment .. . to fully develop he academic skills to her oral language skills and abilities.” (61-4 at 4; Doc. 61 a 7-8; Doc. 61-3 J 17, 23, 35, 36). Those one-to-one services would “likely” hav a duration of “6 months, with a re-evaluation . .. and then perhaps another 4- months of... interventions, with post treatment testing at the end to facilitat transition to a proper school environment.” (Doc. 61-4 at 4-5). He states tha if at the end of “the 12 month intensive, transdisciplinary team interventio1 [S.P.] is still in need of ongoing supports . . . then she will likely need placemen in a small-class, private school environment.” (Jd.).

And Dr. Conway recommends that S.P. “receive ongoing [occupation therapy] and speech-language therapy on a daily basis for a minimum of 20-3 minutes.” (Id.) He estimates that one year of services would cost □□□□ $168,000, plus an additional $5,000 for pre-treatment testing and $3,500 fo mid-point testing. (/d.). Other costs that he estimates include $20,000 a yea in private school tuition and $10,000 a year for weekly occupational therapy an speech-language therapy services until S.P. graduates from high school. Ud. a 5-6). A. Dr. Conway is Qualified to Provide Opinion Testimony As an initial matter, contrary to the Board’s argument, Dr. Conway’ experience, training, and education qualify him to testify to the accommodation that S.P. requires to catch up with her peer group and to participate in publi or private school. (Doc. 53 at 3 (citing Fed. R. Civ. P. 37, Fed. R. Evid. 702 Daubert, 509 U.S. at 597)). “Experts may be qualified in various ways, including by “knowledge, skill, experience, training, or education.” Frazier, 38' F.3d at 1260 (emphasis omitted) (quoting Fed. R. Evid. 702). From 1989 until 2008, Dr. Conway “completed supervised pre-doctora and post-doctoral training in the diagnosis and treatment o [nJeurodevelopmental [dJisorders in children and adults at The Morris Cente [(TMC)].” (oc. 61-4 at 1, 2). Dr. Conway received his bachelor’s degree i psychology, and he holds a Ph.D. in clinical psychology with a concentration i

neuropsychology. (Doc. 61-2 at 1). After completing his Ph.D., he completed post-doctoral fellowship at the VAMC3-Brain Rehabilitation Research Center « Excellence. (/d.). Since 2008, Dr. Conway has owned or managed TMC clinics in □□□□□ Florida; Ponte Vedra Beach, Florida; Birmingham, Alabama; Port of Spair Trinidad and Tobago, West Indies; and NOW!, an EdTech company. (Doc. 61- at 1-2). Also, since 2008, he has been training and directing teams of healthcar professionals (occupational therapy, speech-language therapy, clinics psychology/neuropsychology) and educators in the transdisciplinary assessmen and treatment of neurodevelopmental disorders. (Doc. 61-2 at 1). And he ha co-authored numerous publications, (see id. at 7-10; Doc. 61-4 at 1-2), an provided training courses and workshops to professionals, (see Doc. 61-2 at 11. 12). Dr. Conway is “professionally trained and published in lifespan neuropsychology, neurorehabilitation, neuroimaging ([single-photon emissio1 computed tomography], [functional magnetic resonance imaging], and [diffusio1 tensor imaging]) and neurodevelopmental transdisciplinary team assessmen and team treatment of [n]eurodevelopmental [d]isorders for children, teenager and adults.” (Doc. 61-3 {| 1; see also Doc. 61-4 at 1-2). Nonetheless, the Board claims that because Dr. Conway is not licensed i1

8 Veterans Affairs Medical Center.

Florida or another state, he is unqualified to serve as an expert in □□□□□□□□□□ school psychology, occupational therapy, speech-language pathology, or K-1 educational needs. (Doc. 53 at 8-9). Here, the Board points to the lack information in Dr. Conway’s expert report or curriculum vitae that he is licensed psychologist, school psychologist, licensed occupational therapist, o licensed speech-language pathologist in Florida (or any other state). Ud. at 9 12 (citing §§ 490.003(7), 490.003(8), 490.005, 490.006, 490.013, Fla. Stat.)). Alsc the Board asserts that he is unqualified because he has never taught in a K-1 classroom in Florida and he is not a licensed educator in Florida. (Id. at 12). To the extent that the Board argues that Dr. Conway is unqualifie: because he is unlicensed in Florida, it has not stated how “this renders [Dr Conway] unqualified in this case.” State Farm Mut. Auto. Ins. v. Complete Car Cirs., LLC, No. 6:20-CV-1240-WWB-EJK, 2022 WL 16844858, at *3 (M.D. Fla Sept. 21, 2022) (citing Balthazar Mgmt., LLC v. Beale St. Blues Co., No. 17-cv 81214, 2018 WL 6928698, at *4 (S.D. Fla. Oct. 30, 2018)). Moreover, the Boar fails to explain its arguments that he is not licensed as a speech-languag pathologist in any jurisdiction or as an educator in Florida. See State Farm Mut Auto. Ins., 2022 WL 16844858, at *3. This argument goes to the weight that □ trier of fact might give the testimony, but it does not preclude admissibility. Id (citing McDowell v. Brown, 392 F.3d 1283, 1297 (11th Cir. 2004), and □□□□□□□□□

v. Blair Corp., No. 3:09-CV-8438, 2012 WL 2464000, at *9 (M.D. Ala. June 2’ 2012)). Finally, the Board argues that Dr. Conway is unqualified because h “never personally treated, evaluated, or assessed S.P. in a clinical or schox setting.” (Doc. 53 at 12). The Board fails to provide any basis for this □□□□□□□□□ which Dr. Conway expressly rebuts in his declaration. (Doc. 61-3 at 6—7). Th Parneses submit that Dr. Conway has evaluated S.P., reviewed her medical an school records (including those that the Board produced), and has spoken wit S.P. and her parents on “numerous occasions regarding [her] education.” (Ic { 14, 17, 23, 35, 36; Doc. 61 at 7-8 & n.2). Indeed, his expert report (Doc. 61 4) “was based on evaluation, information, and the status of [S.P.] at that time. (Doc. 61-3 35, 36).4 His “conclusions and recommendations for her treatmen plan will likely be modified if she is to enroll in [his] program.” (Id. {{ 36). Thus he took “the appropriate steps to evaluate” S.P. (Id. § 35). Accordingly, Dy Conway is sufficiently qualified to opine as an expert in this case. (Doc. 61 a 4), B. Dr. Conway is Not Offering a Causation Opinion Next, the Board argues that Dr. Conway’s report is limited to S.P.’

4 The Parneses state that it was unnecessary for Dr. Conway to perform anothe assessment or evaluation of S.P. because the Board does not dispute that she suffer from disabilities. (Doc. 61 at 8). Thus, Dr. Conway’s attention was focused on th remediation of S.P.’s education, brain development, and learning. (Id.).

present treatment, education, and schooling needs, and thus the Court shoul exclude his “causation” opinions. (Doc. 53 at 3, 7; Doc. 61 at 2). The Boar submits that the “causation” opinions that Dr. Conway will offer are: (1) th alleged acts or omissions on the part of the Board, (2) the adequacy an appropriateness of any services and supports the Board provided S.P., and (3 whether the Board damaged or harmed S.P. (Doc. 53 at 3, 7; Doc. 61 at 2). Th Parneses explain that Dr. Conway’s report does not opine as to “causation because he is not going to offer a “causation” opinion. (Doc. 61 at 2~3). Thus Dr. Conway will not be permitted to provide a “causation” opinion. C. Reliability of Dr. Conway’s Methodology Next, the Board argues that Dr. Conway’s proposed opinions are not basec on a reliable methodology and are simply ipse dixit that will not assist the jury (Doc. 53 at 3). The Board says the Parneses failed to demonstrate that hi proposed testimony is scientifically valid because his expert report does no address the four factors identified in Federal Rule of Evidence 702. (Id. at 13) The Court is not persuaded. First, Dr. Conway’s opinions will help the jury to understand the parties positions and the remedies that the parties believe are appropriate o1 inappropriate. (Doc. 61 at 12). Unlike the Board’s citation to Clarke, Dr Conway’s opinion will assist the jury. (/d. at 18-19 (citing Clarke v. Schofield 632 F. Supp. 2d 1350, 1368-70 (M.D. Ga. 2009))). In Clarke, the court precludec

a doctor from opining as an expert on a decedent’s cause of death. 632 F. Sup] 2d at 1368-70. The court found that the doctor, an emergency room □□□□□□□□□ would clearly qualify “as an expert in a medical malpractice case against physician practicing family medicine or emergency medicine, but [the] case [dic not involve standard of care questions or questions about the diagnosis o treatment of (DVT) [deep venous thrombosis] or (PE) [pulmonary emboli].” Jc at 1357. Thus, the doctor was not allowed to opine as an expert because h would be “testifying . . . about questions that go beyond the scope of his regula medical practice.” Id. While the doctor may have permissibly opined “in generc about diagnosing and treating DVT and PE,” he could not opine as an expert “i determining the location of a DVT or the cause or etiology of a DVT ina specifi case.” Id. The doctor did “not treat dead patients” and he could not “perforn the standard clinical examination that he uses for live patients to form opinion about a corpse.” Jd. at 1358. Here, unlike in Clarke, Dr. Conway’s opinions are not so speculative (o outside the bounds of what he does) that his opinions will fail to assist the jury And while the Board argues that Dr. Conway’s lack of licensure means he wil not assist the jury, as previously discussed “lack of board-certification [or ; license] goes to weight, not admissibility.” State Farm Mut. Auto. Ins., 2022 WI 16844858, at *3 (citing McDowell, 392 F.3d at 1297 and Ledbetter, 2012 WI 2464000, at *9). Thus, Dr. Conway’s opinions will assist the jury.

Second, Dr. Conway’s opinions are based on sufficient facts and data. Th records that Dr. Conway reviewed were produced to the Board and consisted c S.P.’s school records, medical records, and evaluations. (Doc. 61 at 8 & n.2; Doc 61-3 {| 17). Moreover, Dr. Conway interviewed S.P., her parents, and famil members. (Doc. 53 at 15; Doc. 61 at 8). Unlike in Trasylol, which the Boar cites in support of its argument that “good grounds” do not support Dr. Conway’ opinion, Dr. Conway submits that he has reviewed S.P.’s medical records. (Doc 53 at 15 (citing In re Trasylol Prod. Liab. Litig., No. 08-MD-01928, 2013 WI 1080552, at *2, *8 (S.D. Fla. Mar. 14, 2013) (finding physician’s opinion tha decedent died from exposure to pharmaceutical during a surgery was not □□□□ on a reliable methodology where physician did not review records predatin; hospitalization for surgery and did not review complete records o hospitalization))). Dr. Conway “review[ed] all of [S.P.]’s school records coverin; the past six to seven years,...reviewed all evaluations o disabilities[,] . . . [and] reviewed [S.P.’s] IEP plans, notes and records from he: schooling in the Orange County School System and subsequent institution: where her[] parent[s] sought to obtain remediation services.” (Doc. 61-3 § 17). Third and fourth, Dr. Conway’s proposed opinions as to th accommodations that S.P. requires to catch up with her peer group and t participate in public or private school are reliable. The Parneses state that Dr Conway used peer reviewed and accepted principles to evaluate S.P.’s schoo

records and medical records. (Doc. 61 at 10 (citing Doc. 61-4 at 1-4 and Doc. 61 3 at 5-10)). His opinion connects his experience and secondary sources to S.P.’ school and medical records such that it is the product of reliable principles an is based on reliable methodology. (See, e.g., Doc. 61-4 at 2-3). Therefore, D1 Conway’s proposed opinion as to the accommodations that S.P. requires to □□□□ up with her peer group and to participate in public or private school are reliable However, Dr. Conway’s opinions about the costs of private schooling an: healthcare are unreliable. (Doc. 53 at 16). As the Board notes, his compan: may charge certain rates, but there is insufficient information in his exper report to support his testimony as an expert regarding the costs of healthcare educational services, or private school tuition in the community at large. (Id.). Like in Tundidor, Dr. Conway does not provide support for his calculation of th costs of S.P.’s potential treatment. (Id. (citing Tundidor v. Carnival Corp., 19 CV-25137, 2023 WL 2388499, at *4 (S.D. Fla. Jan. 10, 2023))). He provides th: following estimates for healthcare costs: an initial $5,000 flat fee for ; transdisciplinary team assessment that is done pre-treatment to guide o develop the treatment plan;* $14,000 per month for “essential treatmen

5 Here, the Board lumps in Dr. Conway’s opinion about S.P.’s educational need. “until she graduates from high school” in its discussion of the reliability of his cos opinion. However, that opinion is more appropriately grouped with the prio discussion about his opinion on the accommodations that S.P. needs. 6 Transdisciplinary team assessments comprise “comprehensive [occupationa eh [speech-language therapy] and [p]sychoeducational testing.” (Doc. 61-4 a

services at [TMC]” that will “likely . . . span up to one year of services (~ 168,000.00);? and $3,500 for mid-point testing at six months.” (Doc. 61-4 at 4). While these costs may be what TMC charges for healthcare services, no basi for them has been provided. (See Doc. 61-4 at 4). Dr. Conway’s report does nc set forth the cost of individual services or what is included in, for example, th $14,000-a-month figure. Likewise, there is no cost estimate for the onlin program (NOW!) that S.P. is enrolled in; it is not clear whether that program i included in the $14,000 monthly figure or if it is a separate cost. Moreover, Dr. Conway does not submit that he has testified as an exper witness regarding medical coding or the reasonableness of medical billing Compare (Doc. 61-4 at 6), with Serrano v. Fam. Dollar Stores of Fla., LLC, Nc 19-81257-CIV, 2021 WL 3036673 (S.D. Fla. June 9, 2021) (denying motion t exclude physician’s expert opinion because, inter alia, he was a certified medica coding expert, he testified as an expert in several cases about medical codin; and reasonableness of medical billing, and he compared plaintiffs medica billing to Medicare rates and to “several authoritative sources”). And he doe: not submit that his opinion on S.P.’s medical billing was the result of considerin;

7 $168,000 = 14,000 x 12 8 Dr. Conway attests that while the costs may seem high, “the standard rate fo [speech-language therapy] and [occupational therapy] services [is] typically $150/hou and thus a true ‘Cadillac’ level of services . . . would cost $234,000 per year.” (Doc. 61 4 at 4). Dr. Conway’s report indicates that end-of-treatment testing may be a separat cost, but he does not provide any cost attributable to that testing. (Id.).

authoritative sources on the subject. See id. Nor does he explain how h determined “typical” rates in the area, and there is no support fo this determination other than Dr. Conway’s own report. Likewise, Dr. Conway’s opinion on the cost of private schooling i unreliable. He states that “[t]he cost[s] for such private school services are likel

. . . $20,000 per year in school tuition and $10,000 per school year fo [occupational therapy] and [speech-language therapy] services weekly unti [S.P.] graduates from high school.” (Id. at 4-5). As with Dr. Conway’s opinio. on healthcare costs, he fails to provide “any explanation of the basis, facts, o data considered in reaching” his opinion as to S.P.’s continuing treatment □□ educational costs. And he does not cite to any other resource to support hi opinions. As a result, his methodology is insufficiently reliable for him to offe an opinion on the continuing treatment and educational costs in this case. Thus Dr. Conway’s cost opinions must be excluded.

IV. CONCLUSION For the reasons explained above, it is ORDERED that the Board’ Daubert motion (Doc. 53) is GRANTED in part and DENIED in part. Thi Court excludes Dr. Conway’s opinions as to causation, healthcare costs, anc schooling costs. The motion to exclude is otherwise denied. DONE and ORDERED in Orlando, F lorida, on September uF, 2024.

OHNA ON II United States District Judge Copies furnished to: Counsel of Record