United States District Court, W.D. Virginia, Harrisonburg Division
JOHN DOE, by and through his next friend, NELSON LOPEZ, on behalf of himself and all persons similarly situated, Plaintiffs,
SHENANDOAH VALLEY JUVENILE CENTER COMMISSION, Defendant.
Elizabeth K. Dillon, United States District Judge
and the class he represents bring this action against
Shenandoah Valley Juvenile Center Commission (Commission).
The members of the class (the Detainees) are Latino immigrant
youths who are or may be confined in the future at the
Shenandoah Valley Juvenile Center (the Center). (Second Am.
Compl. 1-2; Dkt. No. 68.) Doe 4 is a seventeen-year-old
Honduran citizen who came to the United States to seek
protection as a refugee. (Id. at 3.) Doe 4 and the
Detainees who came into the United States without proper
authorization are detained at the Center, per the decision of
the U.S. Department of Health and Human Services' Office
of Refugee Resettlement (ORR). (Id. at 1.) The
Center holds both unaccompanied alien children (UAC) and
United States citizens who have been adjudicated as juvenile
delinquents. (Id. at 6.)
Detainees allege that they are subjected to unconstitutional
conditions and have consequently engaged in self-harm and
suffered abuse. (Id. at 1-2.) They bring this action
under 42 U.S.C. § 1983, alleging excessive use of force,
failure to provide adequate mental health services, and
discrimination on the bases of race and national
origin. (Id. at 22-28.)
seek declaratory and permanent injunctive relief.
Specifically, they ask that the court declare the
Commission's acts and omissions unconstitutional, that
the Commission be ordered to cease its alleged
unconstitutional policies and practices, and that the
Commission be ordered to provide class members with care that
satisfies constitutional standards. (Id. at 2, 29.)
Motions to Exclude Experts
Defendant has filed three motions in which it seeks to
exclude the testimony and/or reports of opposing experts. The
motions to exclude are based on an alleged lack of
qualifications of a given expert or on assertions that the
testimony is inadmissible under Federal Rule of Evidence 702
and the standards established in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
702 governs the admissibility of expert testimony. It states:
A 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's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
Rule 702, a district court acts as gatekeeper to ensure that
“any and all scientific testimony or evidence admitted
is not only relevant, but reliable.” Daubert v.
Merrell Dow Pharms., 509 U.S. 579, 588 (1993). The
proponent of the testimony must establish its admissibility
by a preponderance of proof, although it need not prove its
expert's theory is correct. Cooper v. Smith &
Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001);
Maryland Cas. Co. v. Therm-O-Disc, Inc.,
137 F.3d 780, 783 (4th Cir. 1998).
Fourth Circuit has explained the Daubert standard as
a “two-step gatekeeping function” required of
trial courts. First, the trial court must ask whether
proffered scientific evidence is valid and reliable.
United States v. Barnette, 211 F.3d 803, 815 (4th
Cir. 2000). The second question is whether the evidence will
help the trier of fact, which is generally a question of
relevance, or “fit”: assuming the evidence is
reliable, will it “assist the trier of fact to
understand or determine a fact in issue.” Maryland
Cas. Co., 137 F.3d at 784 (quoting Daubert, 509
U.S. at 592).
Defendant's Motion in Limine to Exclude Expert Testimony
of Paul Diver, Ph.D.
first moves to exclude the report and testimony of Dr. Paul
Diver. Dr. Diver is a senior managing consultant with
experience teaching and applying statistical techniques in a
wide variety of industries. Plaintiffs have retained Dr.
Diver as an independent statistical expert in this case. In
his report, he purports to analyze incidents at the Center
involving class members spending time in seclusion and the
use of force against class members, although it appears
non-class members may be included. He analyzes these
incidents before and after the defendant implemented a change
in its behavioral management program, and he also analyzes
when these incidents occurred against class members who were
exhibiting self-injurious behavior. (Report of Dr. Diver, Ex.
2, Dkt. No. 104-2.) To create his report, Dr. Diver reviewed
reports and documents related to the relevant incidents and
compared this data against the defendant's internal
standards regarding force and restraints, the Juvenile
Detention Alternatives Initiative (JDAI) standard, and the
American Medical Association (AMA) standard. (Id. at
argues that Dr. Diver's expert testimony should be
excluded for three reasons: his analysis is 1) irrelevant
under Federal Rule of Evidence 702(a), 2) lacks an adequate
factual foundation under Rule 702(b), and 3) is fundamentally
flawed and unreliable under Rule 702(c).
defendant argues that Dr. Diver's analysis is irrelevant
because, although the data he relied on pertained to 131
UACs, only three of those UACs were residents at the Center
when the class was certified. Further, defendant asserts that
the timeframe employed by Dr. Diver is irrelevant because it
spanned from June 2015 to May 2018, while plaintiffs defined
the relevant time period in their discovery requests as
October 4, 2015, to May 1, 2018. Last, because Dr. Diver did
not consider all the incidents that did not lead to
force or confinement, he improperly limited his relied-upon
data. Defendant suggests, then, that the report ...