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Doe v. Russell County School Board

United States District Court, W.D. Virginia, Abingdon Division

March 1, 2018

JOHN DOE, AN INFANT, BY HIS NEXT FRIEND, REELIA WATSON, Plaintiff,
v.
RUSSELL COUNTY SCHOOL BOARD D/B/A RUSSELL COUNTY PUBLIC SCHOOLS, ET AL., Defendants.

          Monica H. Beck and Douglas E. Fierberg, The Fierberg National Law Group, PLLC, Traverse City, Michigan, and Paul R. Thomson, III, The Thomson Law Firm, PLLC, Roanoke, Virginia, for Plaintiff;

          Christopher S. Dadak and Jim H. Guynn, Jr., Guynn & Waddell, P.C., Salem, Virginia, and Mary Katherine Patton, Chafin Law Firm P.C., Lebanon, Virginia, for Defendant Russell County School Board d/b/a Russell County Public Schools

          OPINION AND ORDER

          James P. Jones United States District Judge

         In this action under Title IX and 42 U.S.C. § 1983 against a local school board (“School Board”) as a result of molestation of a young student by a school custodian, the plaintiff John Doe has filed a motion in limine to exclude new disclosures of two experts retained to testify at trial for the School Board. Doe also requests that I order the School Board to pay reasonable expenses associated with filing the motion to exclude. The motion has been fully briefed and orally argued and is ripe for decision.

         In his motion, Doe argues that any new testimony by either expert - Elisabeth Counselman-Carpenter, Ph.D., and Alex Redcay, Ph.D. - should be excluded from trial because the new disclosures of this testimony are untimely and not truly supplemental. For the reasons that follow, I will grant in part and deny in part Doe's motion.

         I will take up each expert's new disclosure separately.

         Dr. Counselman-Carpenter.

         Dr. Counselman-Carpenter's original expert report was disclosed to Doe on October 20, 2017, a deadline date informally stipulated to by the parties, although some months after the expert disclosure date set forth in the court's Scheduling Order entered March 20, 2017.[1] Doe's counsel deposed Dr. Counselman-Carpenter based on this report on November 27, 2017. On December 12, 2017, the School Board provided the new report in question.

         Both Dr. Counselman-Carpenter's original and new reports set forth her opinions on Doe's projected mental health outcome and future treatment needs. Her original report concluded that “solely based on the symptoms Dr. Epstein [plaintiff's expert] reports, the diagnosis of [“Posttraumatic Stress Disorder] is likely accurate, but remains inconclusive.” Mot. Lim. Exclude Expert Reports Ex. 8, at 2-3, ECF No. 92-8. Dr. Counselman-Carpenter similarly testified in this regard during her deposition:

A. It is my opinion that Dr. Epstein's diagnosis of PTSD is inconclusive.
Q. Okay. So you have no opinion as to whether Doe is suffering from PTSD or not?
A. My opinion is that Dr. Epstein's opinion does not provide enough information for that diagnosis to stand.
Q. So you have no opinion as to whether Doe has PTSD or not?
A. I don't have enough information to make - - to share an opinion either way.
Q. Okay. Your report says that the diagnosis of PTSD is likely accurate. So are you now - - are you now trashing your own statement?
A. No.
Q. So you still agree that the diagnosis of PTSD is likely ...

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