IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN
AND FOR DUVAL COUNTY, FLORIDA
Case No.: 16-2014-DR-XXXXX
Division: FM-B
IN RE THE MARRIAGE OF:
HUSBAND,
Wife,
and
WIFE,
Husband,
______/
MOTION TO STRIKE OR EXCLUDE TESTIMONY
OF DR. NO
Husband, David Wallace, by and through the undersigned counsel, moves this court to strike or limit the testimony of Dr. NO, hereinafter referred to as “Dr. NO”. Specifically, Husband moves to exclude any testimony from Dr. NO as to timesharing issues, best interest of the child, proposed parenting schedules, or other issues related to parenting, and as grounds therefore states as follows:
1. Dr. NO’S testimony is inadmissible under the Daubert Standard for scientific evidence, as found in Florida Statute Section 90.702 and defined by subsequent case law, and Dr. NO’S testimony is inadmissible under Section 90.403, Florida Statutes.
ANTICIPATED TESTIMONY
2. The above referenced matter is a Dissolution of Marriage case with minor children. Dr. NO performed a social investigation and issued a report that included a recommendation on timesharing. The report offers opinions not based upon reliable methodologies. The report also offers opinions that differ from the generally accepted principles within the social investigation community.
STANDARD OF ADMISSIBILITY
3. To be admissible, expert testimony must be: 1) relevant and, 2) based on reliable methodologies that were reliably applied to the facts. Daubert, 509 U.S. at 589, 592-593, 597; Kumho Tire, 526 U.S. at 147; United States v. Marji, 158 F.3d 60, 62 (2d Cir. 1998). Daubert, applies to all expert testimony, whether based on scientific, technical or other specialized knowledge. See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
4. Florida Statutes Section 90.702 codified Daubert and governs testimony by experts. Florida Statutes Section 90.072 states if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case; however, the opinion is admissible only if it can be applied to evidence at trial.” In Giaimo v. Fla. Autosport, Inc., 2014 Fla. App. Lexis 19498 (Fla. 1st DCA 2014), the appellate court examined the basis of opinions rendered by an expert on impairment in a workmen’s compensation case and found them to be wanting under the new Daubert standard in Florida Statutes Section 90.702. Holding that the testimony was not scientifically grounded, the court noted that testimony previously acceptable as pure opinion under Florida law no longer suffices under Section 90.702. Similarly, the Third District Court of Appeal found the trial court properly granted summary judgment for a former employer on a negligence claim because the medical experts proposed testimony lacked any scientific support for his opinion. See Perez v. Bell South, 2014 Fla. App. Lexis 5785 (Fla. 3d DCA 2014.
5. Judges serve as evidentiary “gatekeepers” who decide whether an expert’s testimony meets Daubert admissibility requirements. See Daubert, 509 U.S. at 597; Kumho Tire, 526 U.S. at 152; Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997); Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir. 2000). The purpose of the gatekeeping requirement is to ensure an expert “employs in the court room the same level of intellectual rigor that characterizes the expert’s practice in the relevant field.” Kumho Tire, 526 U.S. at 152.
6. The court in Sunbeam TV Corp. v. Mitzel, 83 So. 3d 865 (Fla. 3d DCA 2012) stated general opinion testimony not factually based on evidence or information specific to the case at hand was found to be prejudicial in employment discrimination cases. Judges may evaluate the data offered to support an expert’s opinions to determine if that data provides adequate support to conclude the expert’s testimony is reliable. A Judge may conclude there is too great an analytical gap between the data and the opinion proffered. Milward v. Acuity Specialty Prods. Grp., 639 F. 3d 11, 15 (1st Cir. 2011). The focus of the inquiry is to determine whether the expert’s conclusions were reached by a reliable methodology, not on the conclusions the expert reached. Joiner, 522 U.S. at 146; Amorgianos v. Nat’l R.R. Passenger Corp., 137 F. Supp. 2d 147, 162 (E.D.N.Y. 2001).
7. The proper method of challenging the admissibility of an expert is by a motion to strike or motion in limine containing specific objections sufficient to place the Judge on notice of the deficiencies of the challenged expert. See Rushing v. Kansas City Southern Ry., 185 F.3d 496, 506 (5th Cir. 1999). Experts must lay a predicate for the basis of their opinion. A motion to admit must be supported by evidence in the form of expert affidavits, expert deposition testimony, expert reports, learned articles (i.e. publications in medical journals), etc., that support the proposition that the opinion is relevant, and based on a reliable methodology that was reliably applied. An expert opinion must “at least include the factual basis and the process of reasoning which makes the conclusion viable.” Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993); Kuhn v. Wyeth, Inc., 686 F. 3d 618, 625 (8th Cir. 2012) (proposed testimony must be supported by “good grounds” “based on what is known”).
DEPOSITION TESTIMONY OF DR. NO
8. On April 12, 2016, Dr. NO’s deposition was taken when he made the following statements regarding his report and the methodology he used to conduct it. When Dr. No was asked if he reviewed the ABA guidelines on parenting plan evaluations at some point during his career, he claimed he had (No Dep. 46: 3-5 Apr. 12, 2016). He further claimed he is not bound by said guidelines because he is not a psychologist, and the guidelines do not provide any specific standards for him to follow (NO Dep. 46: 10-12). Dr. NO went to claim that each doctor is free to develop their own process when conducting a social investigation in the state of Florida (NO Dep. 46: 19-25; 47: 1-2).
9. When Dr. NO was questioned about a statement made by him in his report “it is not in the best interest of a child to not have a place to call home, which is what a 50/50 arrangement creates” he was asked if that statement was based on any scientific study or was it his opinion. He stated it was his opinion (NO Dep. 73:14-20). Dr. NO goes on to claim that what he has found, through his years of experience, is that he has had enough years’ experience to see the result of different parenting plans and their results ten to fifteen years later (NO Dep. 36: 14-17). Further, He has also had parents call him, and he would explain to them going into the parenting plan and what the Judge had ordered, that they just have to be the best parent they can and ultimately the children will sort it all out (NO Dep. 37:7-11). When Dr. NO was asked if he believed a child’s relationship to their parent corresponds to how much time they spend with that parent, he claimed that it does not (NO Dep. 44:19-23). Consider the following exchange from Dr. NO’S deposition:
Q. You also go on to say, “It is not in the best interest of a child to not have a place to call home, which is what a 50/50 arrangement creates.”
A. That’s correct.
Q. Is that based upon a scientific study or your opinion?
A. My opinion.
Dr. NO’S testimony was clear and definitive regarding his perception on equal time sharing. The fact that nothing scientific was relied upon, makes Dr. NO’S testimony inadmissible under the Daubert Standard.
TIME-SHARING RESEARCH
10. A common misconception among family law practitioners is that scientific research on shared parenting is conflicting. To the contrary, studies have consistently proven that children whose parents share time relatively equally are less depressed, less anxious, and less dissatisfied with life, than their peers who reside with primarily one parent. Children under relatively equal time-sharing parenting plans, onaverage, achieve better grades in school, are less likely to abuse drugs and alcohol, and are less likely to engage in misbehavior. Furthermore, children that share time relatively equally report better attachments with both parents.
11. A legitimate conflict does not exist amongst social scientists. The current scientific data conclusively suggests that someone performing a social investigation must begin with the presumption that relatively equal time sharing is in the child’s best interest, and only then, working away from that premise if a justification for doing so exists[1].
12. In 2014, the Journal of Divorce and Remarriage published Linda Nielsen’s “Shared Physical Custody.” In that study, Nielsen reviewed 40 recent studies of children from divorced families. In total over 220,000 children were followed to determine whether children who spent relatively equal time with both parents fared better or worse later in life. As Nielson framed the issue, her study aimed to answer if the children in those families are better or worse off than children living primarily with their mother and living less than 35% of the time with their father.
13. Nielson reviewed 40 studies that measured children from divorced families with one primary home, versus children of divorce who shared time relatively equally. The 40 studies reviewed conclusively favor equal time sharing. Every study reviewed found that children performed equal or better in the following areas: grades and cognitive development; aggression, drugs or alcohol use, misbehavior, hyperactivity; physical health and stress, illness; father-child relationship or baby-mother attachment. When measuring for anxiety, depression, and self-esteem, the overwhelming majority of studies found that children do better when living in an equal time sharing arrangment.
14. Nielsen further dispelled a myth that high conflict divorces shouldn’t exercise equal time sharing. Nielsen finds having closer relationships with both parents seems to offset the negative impact of the parents’ conflicts in those families where the conflict remained high. Studies produced similar results domestic and abroad. A 2014 study by Dr. Warshark concluded that “shared parenting should be the norm for parenting plans for children of all ages.” His study was endorsed by 111 experts.
15. Nielson’s study conclusively found shared parenting was linked to better outcomes for children of all ages across a wide range of emotional, behavioral, and physical health measures. Expanding on the above, Neilson also concludes in her studies, there was not any convincing evidence that overnighting or shared parenting was linked to negative outcomes for infants or toddlers. Lastly, Nielson claims, even though shared parenting couples tend to have somewhat higher incomes, and somewhat less verbal conflict than other parents, these two factors alone do not explain the better out comes for the children.
16. Similarly in 2013, The Causal Effects of Father Absence was published by the Annual Review of Sociology. Similar to Neilson’s conclusions, the results were that there was strong evidence found, throughout the studies performed, that father absence negatively affects children’s social-emotional development particularly by increasing externalizing behavior. Concluding further, those effects may be more pronounced if father absence occurs during early childhood than during middle childhood, and they may be more pronounced for boys than for girls. These effects on social-emotional development do not stop during middle childhood. The studies found effects on social-emotional development persist into adolescence, for which there was strong evidence found that father absence increases adolescents’ risky behavior and negative effects on high school graduation.
17. Part II of Dr. Nielson’s study conducted in 2014, found most of the children fared as well or better than those in maternal residence- especially in terms of the quality and endurance of their relationships with their fathers. Also, parents do not have to be exceptionally cooperative, without conflict, wealthy, and well educated or mutually enthusiastic about sharing the residential parenting in order for the child to benefit. Part II of the study further concluded, young adults who have lived in these families say this arrangement was in their best interest. In contrast to those who lived with their mothers after their parents’ divorced.
18. A study examining college students’ perspectives found that most children who had relatively equal time sharing were satisfied with the arrangement and children who lived primarily with one parent were less so.
19. In 2012, The American Journal of Family Therapy published “Arguments for an Equal Parental Responsibility Presumption in Contested Child Custody”. This article presents sixteen arguments in support of equal parental responsibility and previous scientific documentation to support every conclusion. These arguments are as follows:
1. Equal parenting preserves children’s relationships with both parents.
2. Equal parenting preserves parents’ relationships with their children.
3. Equal parenting decreases parental conflict and prevents family violence.
4. Equal parenting respects children’s preferences and views about their needs and best interest.