Gier By and Through Gier v. Educational Service Unit No. 16, 94-3497

• Citation: 66 F.3d 940
• Decision Date: 28 September 1995
• Docket Number: No. 94-3497,94-3497
• Parties: 103 Ed. Law Rep. 660, 42 Fed. R. Evid. Serv. 1196, 12 A.D.D. 717 Joel L. GIER, By and Through His Parents and Next Friends; Jack L. GIER; Mary E. Gier; Amanda Petska, By and Through Her Parents and Next Friends; Roger D. Petska; Kathleen R. Petska; Lisa L. Kummer, By and Through Her Parent and Next Friend; Theresa M. Kummer; Heather A. Duncan, By and Through Her Parents and Next Friends; James P.L. Duncan; Kathryn J. Duncan; Thomas W. Lute, By and Through His Parents and Next Friends; Lewis O. Lute; Carol V. Lute; Kelly V. Christianson, By and Through Her Parent and Next Friend; Virginia L. Christianson; Harold Lutkehus, II, By and Through His Parent and Next Friend; Connie K. Lutkehus, Appellants, v. EDUCATIONAL SERVICE UNIT NO. 16; Marge Lehman; Marge Veatty, Appellees. Department of Social Services, State of Nebraska, Interested Party.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 940

66 F.3d 940

103 Ed. Law Rep. 660, 42 Fed. R. Evid. Serv. 1196,

12 A.D.D. 717

Joel L. GIER, By and Through His Parents and Next Friends;

Jack L. GIER; Mary E. Gier; Amanda Petska, By and Through

Her Parents and Next Friends; Roger D. Petska; Kathleen R.

Petska; Lisa L. Kummer, By and Through Her Parent and Next

Friend; Theresa M. Kummer; Heather A. Duncan, By and

Through Her Parents and Next Friends; James P.L.

Duncan; Kathryn J. Duncan; Thomas W. Lute, By and Through

His Parents and Next Friends; Lewis O. Lute; Carol V.

Lute; Kelly V. Christianson, By and Through Her Parent and

Next Friend; Virginia L. Christianson; Harold Lutkehus,

II, By and Through His Parent and Next Friend; Connie K.

Lutkehus, Appellants, v. EDUCATIONAL SERVICE UNIT NO. 16; Marge Lehman; Marge

Veatty, Appellees.

Department of Social Services, State of Nebraska, Interested Party.

No. 94-3497.

United States Court of Appeals,

Eighth Circuit.

Submitted May 17, 1995.

Decided Sept. 28, 1995.

Dana C. Bradford, III, Omaha, NE, argued (James R. Welsh, on the brief), for appellant.

William Thomas Wright, Kearney, NE and Brian David Nolan, Omaha, NE, argued, for appellee.

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

BOWMAN, Circuit Judge.

Appellants, who are the plaintiffs in this case, seek reversal of the order of the District Court ¹ granting summary judgment in favor of the defendants, Educational Service Unit No. 16 (ESU), a political subdivision of the State of Nebraska that provides educational services to handicapped individuals, and Marge Beatty and Marge Lehman, supervisors of ESU. For the reasons set forth below, we affirm the judgment of the District Court.

I.

Appellants are minors who are all mentally and physically handicapped. They attended ESU at various times from 1973 through 1988. During late 1987 and early 1988, the parents of appellants Joel L. Gier, Lisa L. Kummer, Kelly Christiansen, and Harold Lutkehus II took their children to the Boys Town Institute for Abused Handicapped Children where, after conducting psychological testing and evaluation, two of appellants' experts, Drs. Sullivan and Scanlan, determined that these appellants had been emotionally, physically, or sexually abused while attending ESU. A similar determination was subsequently made with respect to appellants Heather Duncan, Thomas Lute, and Amanda Petska by appellants' third expert witness, Dr. Jones, a psychologist in Colorado who purportedly used the same methodology employed by Drs. Sullivan and Scanlan.

Appellants then filed this action seeking general monetary damages under 20 U.S.C. Secs. 1400-75 (Supp. V 1993) (Individuals with Disabilities in Education Act) (IDEA) and 42 U.S.C. Sec. 1983 (1988). In addition, appellants brought state law claims under the Nebraska Political Subdivision Tort Claims Act, Neb.Rev.Stat. Secs. 13-901 to 13-926 (1991 & Supp.1994), invoking the District Court's pendent jurisdiction. The District Court entered an order for partial summary judgment against appellants, (1) holding that claims that appellants' parents had assigned to their children were barred by the statute of limitations; (2) excluding evidence regarding the sexual habits, proclivities and relationships of a teacher at ESU; and (3) ruling that appellants' IDEA claims were barred because appellants failed to exhaust their administrative remedies.

Following an evidentiary hearing, the District Court also entered a separate order in limine precluding the admission of much of the testimony of Drs. Sullivan, Scanlan and Jones on grounds that their methodology lacked sufficient indicia of reliability under Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Gier v. Educational Service Unit No. 16, 845 F.Supp. 1342, 1351-53 (D.Neb.1994). The parties then filed a joint stipulation which stated in relevant part:

2. The sole basis for the allegations as set forth in the plaintiffs' Second Amended Complaint ... are the opinions of [plaintiffs' experts] John Scanlon, M.D., Patricia Sullivan, Ph.D. and Marilyn Jones, Ph.D. as identified in the Motions in Limine filed by the defendants in this case on January 7, 1994, Filings nos 282 and 285, and as excluded by this Court's order of February 2, 1994, Filing [302; 309].

3. That in the absence of these opinions, the plaintiffs cannot meet essential elements of their burden of proof against any defendant:

a. That during the attendance of the plaintiff children ... at a school operated by ESU and defendants Marge Lehman and Marge Beatty in North Platte, Nebraska for the trainable mentally retarded, they were physically, sexually and emotionally abused.

b. That any physical, sexual, or emotional abuse was the result of either the deliberate indifference of the defendants to a known risk of harm to the children or negligence.

Filing 328 at 2, quoted in Gier v. Educational Service Unit No. 16, No. 7:CV92-5000, Mem. & Order at 4 (D.Neb. Sept. 12, 1994). On the basis of appellants' concession in the stipulation that they were unable to meet their burden of proof absent the expert opinion testimony excluded by the Court's motion in limine, the District Court granted summary judgment in favor of ESU. This appeal then was timely filed.

We review a district court's evidentiary decisions for clear abuse of discretion, Adams v. Fuqua Industries, Inc., 820 F.2d 271, 273 (8th Cir.1987), and its grant of summary judgment de novo, Maitland v. University of Minnesota, 43 F.3d 357, 360 (8th Cir.1994).

II.

The appellants' principal argument on appeal is that the District Court erred in precluding testimony of appellants' expert witnesses. Specifically, the District Court ordered appellants' experts not to testify "to any conclusion that any plaintiff was abused in any way," "to any opinion based on such a conclusion," or "to any opinion that plaintiffs' behavior is consistent with abuse of any kind." See Gier, 845 F.Supp. at 1354.

The basis for the District Court's order was an analysis of the appellants' proffered testimony under the criteria set forth by the Supreme Court in Daubert. Prior to Daubert, scientific evidence was admissible only if the scientific principles underlying the evidence were "sufficiently established to have gained general acceptance in the particular field in which [they] belong[ ]." Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). The Supreme Court held in Daubert, however, that Federal Rule of Evidence 702 displaced the Frye "general acceptance" test. Thus, under Daubert, a district court must engage in an assessment "of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, --- U.S. ----, 113 S.Ct. at 2796; see also McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1406 (8th Cir.1994).

The District Court's Daubert assessment was based on its review of the psychological evaluations of the appellants conducted by Drs. Sullivan, Scanlan and Jones, which evaluations formed the foundation for their proffered testimony. See Gier, 845 F.Supp. at 1345. The evaluation of the appellants consisted of (1) reviewing Child Behavior Checklists (CBCs) completed by the appellants' parents; (2) conducting clinical interviews with appellants that involved role playing with anatomically correct dolls; and (3) interviews with appellants' parents and assessment of their credibility. The clinical interviews purportedly were conducted in accordance with a protocol developed by Dr. Sullivan.

The District Court first expressed general reservations regarding the use of psychological evaluations as evidence in cases of alleged child abuse, whether the abuse at issue be physical, emotional, or sexual. The court cited cases from a number of...