Brief in support of plaintiff s motion in limine by wuzhenguang

VIEWS: 2 PAGES: 32

									                         IN THE UNITED STATES DISTRICT COURT
                      FOR THE EASTERN DISTRICT OF MICHIGAN
                                   SOUTHERN DIVISION


UNITED STATES OF AMERICA,


                     Plaintiff,                                 Case No. 03-73034
                                                                Hon. Anna Diggs Taylor
and                                                             Magistrate Judge Capel, Jr.


JOYCE GRAD,


                     Intervening Plaintiff,
       v.


ROYALWOOD COOPERATIVE APARTMENT, INC.,
SCHOSTAK BROTHERS & COMPANY, INC., and
RICHARD A. CAIL,
                     Defendants.
________________________________________________________________________
                                              ______
Craig S. Morford                                   Patrick K. Rode (P35591)
United States Attorney                             Meyer, Kirk, Snyder & Lynch, PLLC
Eastern District of Michigan                       100 W. Long Lake Rd. #100
                                                   Bloomfield Hills, MI 48304
Judith E. Levy (P55882)                            Phone: (248) 647-5111
Assistant U.S. Attorney                            Fax: (248) 647-6079
Eastern District of Michigan                       Attorney for Defendants
211 W. Fort Street #2001
Detroit, MI 48226
Phone: (313) 226-9727
Fax: (313) 226-3271
Attorney for Plaintiff United States


Gabrielle S. Frampton (P59499)
Amy E. Maes (P45787)
Michigan Protection & Advocacy Service, Inc.
4095 Legacy Parkway, Suite 500
Lansing, MI 48911
Phone: (517) 487-1755
Fax :(517) 487-0827
Attorneys for Intervening Plaintiff Joyce Grad
________________________________________________________________________
                                            _____
              BRIEF IN SUPPORT OF PLAINTIFF=S MOTION IN LIMINE TO
            EXCLUDE THE REPORT AND TESTIMONY OF SHEILA STYRON




                                       ISSUES PRESENTED


I.     Does Sheila Styron Possess the Specialized Knowledge in Psychiatric Disabilities to
       Provide Relevant and Reliable Testimony to Qualify as an Expert Under FRE 702?


       Plaintiff Answer: No.


II.    Does Sheila Styron Possess the Specialized Knowledge in FHA and Requests for
       Accommodation to Provide Relevant and Reliable Testimony to Qualify as an Expert
       under FRE 702 or 703?


       Plaintiff Answer: No.
- iii -
                                             TABLE OF CONTENTS


I.       INTRODUCTION


         A.       Ms. Grad Is Handicapped Within The Meaning of The Fair Housing Act
                  as Amended (AFHA@). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .1


         B.       Defendants Knew or Should Have Known of Ms. Grad=s Handicap. . . . . . .
                  ....2


         C.       Requested Accommodation Is Reasonable And Necessary To Afford Ms.
                  Grad an Equal Opportunity to Use And Enjoy Her Property. . . . . . . . . . . .
.....2


II.      LEGAL STANDARD ................................................................................................... 3


III.     ARGUMENT


         A.       Sheila Styron Does Not Possess The Specialized Knowledge in Psychiatric
         Disabilities to Provide Relevant And Reliable Testimony to Qualify as an
                  Expert Under FRE 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .7


                  1.        Ms. Styron=s Education And Work Experience Do Not Qualify Her
                            as an Expert. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .8


                                                           - iv -
                   2.        Ms. Styron Is Not Qualified as an Expert as to Whether Ms. Grad
                             Is Disabled Under FHA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .8


                   3.     Ms. Styron Is Not Qualified as an Expert as to Whether This Dog
                          or Any Animal Lessens The Effects of Ms. Grad=s Disability And
                   Therefore Qualifies as a Reasonable Accommodation Under The
                           FHA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . 10

         B.        Sheila Styron=s Testimony And The Information The Report Is Based Upon
                   Is Not Reliable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .16


IV.      CONCLUSION ..........................................................................................................19


V.       RELIEF REQUESTED ..............................................................................................19


                                                              ***
TABLE OF AUTHORITIES .................................................................................................... iv


LIST OF EXHIBITS ............................................................................................................... v


                                              TABLE OF AUTHORITIES


CASES                                                                                                                    Page


Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994)............................................... 5, 7, 8




                                                              -v-
Bronk v. Ineichen, 54 F. 3d 425 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .3




Clark v. Chrysler Corp., 310 F.3d 461 (6th Cir. 2002) .............................................................. 5




Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 597 (1993) . . . . . . .1, 4,
5, 6, 16, 17




General Elec. Co. v. Joiner, 522 US 136, 142 (1997). .................................................... 4




Glaser v. Thomson Med. Col. Inc., 32 F. 3d 969, 972 (6th Cir. 1994) ............................. 6




Greenwell v. Boatwright, 184 F. 3d 492, 497 (6th Cir. 1999) ............................................ 6




HUD v. Dutra, 1994 WL 497536, FHFL &26058 ..................................................................... 3


Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 ............................................ 6, 16




Nemir v. Mitsubishi Motors Corporation, 200 F. Supp.2d 770 ......................................... 1, 5, 17


Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.1997) ........................... 6




                                                        - vi -
Smelser v. Norfolk Southern Ry. Co., 105 F. 3d 299, 303 (6th Cir. 1997) ....................... 5




Tyus v. Urban Search Management, 102 F.3d 256, 263 (7th Cir. 1996) ......................... 6




STATUTES




42 U.S.C. '3604 ..................................................................................................................1


42 U.S.C. '3604(f) ............................................................................................................. 3


42 U.S.C. '3604(h) ............................................................................................................ 3


FEDERAL RULES


Rule 702 .............................................................................................................. 1, 4, 16, 19


Rule 703 .............................................................................................................. 1, 4, 16, 19
                                                   LIST OF EXHIBITS




1.        Resume and Report of Sheila Styron


2.        Deposition of Raul J. Guerrero, M.D.


3.        Deposition of William Barnett, Ph.D.

                                                               - vii -
4.   Report of Susan Duncan, R.N.


5.   Deposition of Sheila Styron




                                    - vi -
                                    I.        INTRODUCTION


       On September 9, 2004, Defendant=s proposed expert, Sheila Styron, provided deposition

testimony in this case. As made clear through her testimony, Ms. Styron=s opinion testimony lacks

any valid specialized knowledge or firsthand experience to establish a foundation. Ms. Styron=s

testimony fails to satisfy the standards of evidentiary reliability the Supreme Court established in

Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and will not assist the trier of fact

to understand the evidence or determine a fact in issue as required by Federal Rules of Evidence

(FRE) 702 and 703. Ms. Styron=s testimony and her Areport@ are therefore inadmissable.

       [Note: Defendants, as the proponent of this expert testimony, have the burden to prove its

       reliability and relevance by a preponderance of the evidence. Nemir v. Mitsubishi Motors

       Corporation, 200 F. Supp.2d 770, 773.]

       Ms. Styron proffered an opinion that, A...since Joyce Grad did not claim to have a disability

which would have entitled her to have a service animal, and her dog was referred to as a pet, Ms.

Grad=s dog was a pet, not a service animal. (Ex.1, Sheila Styron=s Areport@ at 1-2)

A.     MS. GRAD IS HANDICAPPED1 WITHIN THE MEANING OF THE FAIR                                HOUSING



       1
           The Fair Housing Act as Amended uses the term Ahandicap@ as a person who has

                                                - vii -
ACT AS AMENDED (AFHA@).


       Ms. Grad has been diagnosed with Bipolar II Disorder with psychotic features, Major


Depression recurrent, Generalized Anxiety Disorder, which manifests itself as a extreme phobic


reaction to touch, and Post Traumatic Stress Disorder, (Ex. 2, Guerrero Dep. at 7; Ex. 3,


Barnett Dep. at 17-20). These disorders substantially limit Ms. Grad in her ability to work,


sleep and interact with others.


B.     DEFENDANTS KNEW OR SHOULD HAVE KNOWN OF MS. GRAD=S
       HANDICAP.


       On or around November 2000, Ms. Grad=s treating psychiatrist, Dr. Guerrero, and


treating psychologist, Dr. Barnett, believed that Ms. Grad needed an animal, preferably a dog,


to ameliorate her anxiety, phobias, self-injurious behavior and inability to touch another living


being. (Ex. 2, at pp. 67-68, 72, 77; Ex. 3, at 91-93, 99-111). On November 10, 2000,


Ms. Grad sent a letter to Richard Cail (ACail@). In the first sentence of that letter, Ms. Grad



a physical or mental impairment which substantially limits a major life activity, instead of the
more generally accepted term Adisability.@ 42 U.S.C. ' 3604. However, both terms have the
same legal meaning.


                                              -2-
identifies herself as a person with a disability. Ms. Grad requested that Royalwood waive its


no pet policy as a reasonable accommodation under the FHA. Ms. Grad attached letters from


Dr. Guerrero and Dr. Barnett in support of this request. Both doctors invited further inquiry


should there be a need. Neither Royalwood nor Cail requested further information before


denying Ms. Grad=s request for accommodation.


C.     REQUESTED ACCOMMODATION IS REASONABLE AND NECESSARY TO
       AFFORD MS. GRAD AN EQUAL OPPORTUNITY TO USE AND ENJOY HER
       PROPERTY.


       Ms. Grad moved from Royalwood in January 2001 and obtained a dog, Lady. Lady


performs a variety of tasks for Ms. Grad as outlined in the Report of Susan Duncan, RN.


(Attached hereto as Ex. 4.) Ms. Duncan=s report specifies a number of tasks which Lady


performs which lessen the effects of Ms. Grad=s disability and in turn affords her an equal


opportunity to use and enjoy her property as a non-disabled person would.


       As more fully discussed below, Ms. Styron=s testimony and Areport@ are irrelevant and


unreliable. Accordingly, this Court should exclude Ms. Styron=s Areport@ and her testimony in


this case.

                                            -3-
                                II.       LEGAL STANDARD


       The Fair Housing Amendments Act (FHA), 42 U.S.C. ' 3604(f) makes it unlawful:


       (2) To discriminate against any person in the terms, conditions or privileges of
       the sale or rental of a dwelling, or on the provision of services or facilities in
       connection with such dwelling, because of handicap . . . (a) that person; or (b)
       a person residing in or intending to reside in that dwelling after it is so sold,
       rented or made available; or 8 any person associated with that person.
       (3) For the purposes of this subsection, discrimination includes . . . (b) a
       refusal to make reasonable accommodations in rules, policies, practices or
       services, when such accommodations may be necessary to afford such person
       qual opportunity to use and enjoy a dwelling.




       A AHandicap,@ as that term is defined by 42 U.S.C. '3604(h), is a physical or mental


impairment which substantially limits one or more of such person=s major life activities.


       The elements necessary to establish a prima facie case for failure to make a


reasonable accommodation are; (1) plaintiff is handicapped as defined by FHA ; (2)


defendants knew or should       be expected to know of the handicap; (3) the requested


accommodation may be necessary to afford the plaintiff an equal opportunity to use and enjoy


the premises and does not present an undue hardship on the defendant; and (4) defendant



                                             -4-
refused to make such an accommodation. HUD v. Dutra, 1994 WL 497536, FHFL & 26058.


The 7th Circuit amplified element three of the prima facie case by requiring that the requested


accommodation be both Areasonable@ and Anecessary.@ Bronk v. Ineichen, 54 F.3d 425


(1995).   Reasonableness involves a balancing between the benefit to the person requesting


the accommodation versus the burden on the housing provider. Necessity, Arequires at a


minimum the showing that the desired accommodation will affirmatively enhance a disabled


plaintiff=s quality of life by ameliorating the effects of the disability.@ Id at p.429.


       This framework is what a proposed expert must assist the trier of fact to understand.


Here the salient issues are whether Ms. Grad is disabled as defined by FHA and whether the


requested dog is both reasonable and necessary to be considered a reasonable


accommodation. A proposed expert must possess the requisite knowledge, skill, experience,


training or education in order to do so. Rule 702, governs who may qualify as an expert.


FRE 702 states:


       If scientific, technical, or other specialized knowledge will assist the trier of fact
       to understand the evidence or to determine a fact in issue, a witness qualifies
       as an expert by knowledge, skill, experience, training, or education, may testify


                                               -5-
         thereto 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.


FRE 703 establishes what constitutes a reliable basis for opinion testimony by the expert.


FRE 703 states:


         The facts or data in the particular case upon which an expert bases an opinion
         or inference may be those perceived by or made known to the expert at or
         before the hearing.   If of a type reasonably relied upon by experts in the
         particular field in forming opinions or inferences upon the subject, the facts or
         data need not be admissible in evidence in order for the opinion or inference to
         be admitted.    Facts or data that are otherwise inadmissable shall not be
         disclosed to the jury by the proponent of the opinion or inference unless the
         court determines that their probative value in assisting the jury to evaluate the
         expert=s opinion substantially outweighs the prejudicial effect.


         The admissibility of expert evidence remains within the sound discretion of the trial


court.    General Elec. Co. v. Joiner, 522 US 136, 142, (1997) (district court must screen


expert testimony); Daubert v . Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 597 (1993)


(district court must perform a Agatekeeping@ role when considering admissibility of expert


testimony).     Therefore the trial court must determine admissibility of expert testimony by



                                               -6-
applying FRE 702 and 703.


       Before an expert may render an opinion, the trial court must determine whether that


testimony and the basis of that opinion are reliable and relevant. Id;


       To determine reliability, Daubert suggests several factors that trial judges may
       consider: (1) whether the proposed hypothesis is testable, (2) whether the theory or
       technique has been subject to peer review or publication, (3) the known or potential
       error rate, and (4) whether the theory or technique is >generally accepted.= These
       suggested factors are not presented as a >definitive checklist= but are offered to
       assist the trial judges in their >flexible= inquiry as to the reliability of expert
       testimony. In addition to these Daubert factors, the Sixth Circuit has added a fifth
       factor: >whether the experts are proposing to testify about matter growing naturally
       and directly out of research they have conducted independent of litigation, or whether
       they have developed their opinions expressly for purposes of testifying because the
       former provides important objective proof that the research comports with the
       dictates of good science. (Internal citation omitted)

       An expert witness may also rely on her experience as the basis for her testimony. If
       the witness is relying solely or primarily on experience, then she must explain
       how that experience leads to the conclusion reached, why that experience is a
       sufficient basis for the opinion, and how that experience is reliably applied to
       the facts. (Emphasis added) Nemir v. Mitsubishi Motors Corporation, 200 F.
       Supp.2d 770, 774 (2002).

See also Clark v. Chrysler Corp., 310 F.3d 461 (6th Cir. 2002) (in determining whether to admit

expert testimony, the trial court must decide whether an expert's testimony is both relevant and

reliable). This inquiry looks to the expert=s training and qualifications and how those relate to


the subject matter of the expert=s proposed testimony. Smelser v. Norfolk Southern Ry. Co.,


105 F.3d 299, 303 (6th Cir. 1997). The trial court does not examine Athe qualifications of


the witness in the abstract, but whether those qualifications provide a foundation for a witness

                                               -7-
to answer a specific question.@ (Emphasis added)            Id. Berry v. City of Detroit, 25 F.3d


1342 (6th Cir. 1994).         A proper foundation for a technical expert must demonstrate


Afirsthand familiarity@ with the subject of the testimony.     Berry, 25 F.3d at 1350. See also


Smelser, 105 F. 3d at 305 (expert testimony excluded where subject of testimony exceeded


expert=s qualifications). The trial court may use a Daubert analysis to determine the admissibility


of non-scientific expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). The

"focus, of course, must be solely on principles and methodology, not on the conclusions they

generate." Daubert, 509 U.S. at 595. Thus, the court should confirm whether "the factual

underpinnings of the expert's opinion were sound." Greenwell v. Boatwright, 184 F.3d 492, 498 (6th

Cir.1999).

       In addition to examining the reliability of expert testimony, Daubert requires the trial


court to consider the relevancy of such evidence.       Glaser v. Thomson Med. Col. Inc., 32 F.


3d 969, 972 (6th Cir. 1994). In order to be relevant, expert testimony must Aassist the trier


of fact to understand the evidence or to determine a fact in issue.@ If scientific, technical or


other specialized knowledge will assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness who qualifies as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based



                                                -8-
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. This


framework established in Daubert for assessing expert testimony applies to social science


experts, just as it applies to experts in the hard sciences.                Tyus v. Urban Search


Management, 102 F.3d 256, 263 (7th Cir. 1996). The trial judge must be satisfied that the


expert is being as careful as she would be in her regular professional work outside her paid


litigation consulting. Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.1997).




                                      III.        ARGUMENT


A.     SHEILA STRYON DOES NOT POSSESS THE SPECIALIZED KNOWLEDGE IN
       PSYCHIATRIC DISABILITIES                TO    PROVIDE       RELEVANT        AND     RELIABLE
       TESTIMONY TO QUALIFY AS AN EXPERT UNDER FRE 702.

       To be considered an expert, Ms. Styron must possess some scientific, technical or other

specialized knowledge which will assist the trier of fact in this disability discrimination case. To be

                                                 -9-
relevant, a foundation must be established to demonstrate that the intended expert possesses such

knowledge. Specialized knowledge may be obtained by firsthand knowledge, skill, experience,

training or education. Ms. Styron possess no specialized knowledge as to psychiatric disabilities.

       Ms. Styron obtained her Bachelor of Arts in Music in 1973, and has held various


positions in the music industry as a singer/songwriter since 1974. Ms. Styron has been a


background singer for Wayne Newton, performed in concert with Tony Bennett, is a private


vocal coach and composes music for television, commercials and other organizations (Ex. 1,


Resume and Report of Sheila Styron). Currently Ms. Styron is unemployed. (Ex. 5, at 7)


Ms. Styron has been a consumer advocate for Aguide dog and other blindness related issues.


. .@ Ms. Styron has never qualified as an expert in a civil rights case. (Ex. 1, Sheila Styron,


Dep. at 9)


       In Berry, the court drew the distinction between scientific and non-scientific testimony:

       By way of illustration, if one wanted to explain to a jury how a bumblebee is able to
       fly, an aeronautical engineer might be a helpful witness. Since flight principles have
       some universality, the expert could apply general principles to the case of the
       bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be
       qualified to testify, as long as he was familiar with the component parts.

       On the other hand, if one wanted to prove that bumblebees always take off into the
       wind, a beekeeper with no scientific training at all would be an acceptable expert
       witness if a proper foundation were laid for his conclusions. The foundation would
       not relate to his formal training, but to his firsthand observations. In other words,
       the beekeeper does not know any more about flight principals than the jurors, but he


                                               - 10 -
       has seen a lot more bumblebees than they have. (Emphasis added) Berry at page
       1349-1350.

In this case, as evidenced below, Ms. Styron would not be the Aaeronautical engineer@ because she

has no formal education or training regarding psychiatric disabilities, the Fair Housing Act,

reasonable accommodations or whether Ms. Grad=s dog is necessary to lessen the effects of her

disability so that she may use and enjoy her property. Ms. Styron also would not be the Abee

keeper@ - since she has no firsthand observations of people with psychiatric disabilities and how

animals may lessen the effects of their disabilities in the housing context. Ms. Styron can offer no

relevant or reliable testimony because she has no specialized knowledge to assist the jury in

understanding the evidence or a fact at issue in this case.

       1.  MS. STYRON=S EDUCATION AND WORK EXPERIENCE DO NOT
       QUALIFY HER AS AN EXPERT.

        Ms. Styron obtained her BA in Music and has worked as a singer/songwriter since 1974, and
she does not have any education or work experience which would qualify her as an expert as to
psychiatric disabilities, the FHA, whether a reasonable accommodation is both reasonable and
necessary to afford Ms. Grad equal use and enjoyment of her property.

       2.   MS. STYRON IS NOT QUALIFIED AS AN EXPERT AS TO WHETHER
       MS.GRAD IS DISABLED UNDER FHA.

       Ms. Styron does not have any training which is relevant to this case. Ms. Styron has not


received any training on the FHA and has not read the Fair Housing Act in its entirety. Ms.


Styron does not have any training in how to determine whether a person is disabled, does not


have specific training in psychiatric illnesses and does not know how the FHA defines a


disability. (Ex. 5, at 22-24) Ms. Styron testified in her deposition at page 24:

                                                - 11 -
(By Ms. Levy)

17:    Do you have any training in how to determine whether a person is disabled?


1:     I do not.


17:    Okay. Do you have any specific training in psychiatric illnesses?


1:     I do not.


17:    And do you know how the Fair Housing Act defines a disability?


1:     I do not specifically know how the Fair Housing Act defines a disability.


Again at page 28 of Ms. Styron=s deposition transcript:

17:    Are you familiar with Bipolar 2 disorder?


1:     No. I=m not.


17:    Are you familiar with Bipolar with psychotic features?


1:     No.


17:    Major Depression Recurrent, the same question, are you familiar with that syndrome?


1:     I=ve heard of the language but I=m not an expert, the details of what they actually mean.


17.    Okay, Are you familiar with the diagnosis of post traumatic stress disorder?


1:     Casually.


17.    Okay, but not in a professional capacity?


1:     No.


                                                   - 12 -
17:      Generalized Anxiety disorder, are you familiar with that?


1.       Yes the same answers.


17:      That you=re not B


1:       (Interposing) That I=m not familiar with it professionally . . .


Finally, at pages 31-32 of her deposition transcript, Ms. Styron testifies that she is not an expert in regards to


psychiatric disabilities:


1:       I truly don=t believe I know enough about these medical conditions or Ms. Grad personally or the


         way the law considers all of these issues to be able to provide you with that information or with an


         opinion in that area.


Based on her own testimony, Ms. Styron is not an expert in this case.


         3.        MS. STYRON IS NOT QUALIFIED AS AN EXPERT AS TO WHETHER                                THIS DOG


OR ANY ANIMAL LESSENS THE EFFECTS OF MS. GRAD=S                               DISABILITY AND THEREFORE


QUALIFIES AS A REASONABLE                             ACCOMMODATION UNDER THE FHA.


         Ms. Styron testified, at pages 47-48 of her deposition,     that she is not qualified as an expert in

regards to how a dog would work for a person with a psychiatric disability.

By Ms. Levy:

17:      And although it=s under work or school she discusses the problems that mental illness can have with


         respect to sleep and depression in particular and talks about dogs being trained to respond to alarm



                                                       - 13 -
        clocks. Such as hearing dogs do. Are you familiar with hearing dogs that respond to alarm clocks and


        wake up their human partner?


1:      Yes.


17:     And is it your opinion that there=s any difference when a severely depressed person or somebody who


        is medicated with psychotropic meds and is unable to wake up and the same thing happens, is that


        different to you from a hearing dog?


1:      I would have to know more about the training process and the actual set of events with that activity to


        be able to give an answer.


17:     Okay. But if hypothetically a dog were trained to respond to the alarm clock and lick the face or nuzzle


        or do whatever it is that the hearing dog does but with a person with a psychiatric disability.


1:      I don=t feel I=m qualified to answer that question.


        Ms. Styron=s lack of knowledge relevant to this case became more apparent when she was questioned


about the opinions and observation made by Plaintiff=s expert, Susan Duncan. When questioned about Susan


Duncan=s report. Ms. Styron at page 67 testified:


17:     Okay. And do you have any reason to disagree with the assessment that Susan Duncan conducted?


1:      The large B the majority, the bulk of what I read in terms of task training is obedience training that all


        good pets should have.       I really didn=t see anything in there that showed me that this dog was


        performing tasks that a service animal would be trained to do to mitigate a disability.


                                                     - 14 -
17:     Okay. On page 5 of the report Ms. Duncan delineates just what you=re discussing, Atrained tasks that


        were observed or demonstrated during the interview: A. That the dog accepts physical handling.@


1:      That=s petting.


17:     Do you understand B I just want to repeat one question I think bears repeating B do you understand the


        difference between someone who has a psychiatric illness and someone who is sad?


1:      Yes, I do.


17:     And do you understand that if someone is sad pets a dog that it can have a different effect on that


        person than somebody who is suicidal, self-injurious, psychotic, do you understand that can have a


        different B this same conduct can have a different effect?


1:      I cannot give you an expert opinion to what that difference is. I=m more than willing to accept the


        validity of that situation, but I have to add here that a dog who can lovingly accept petting and affection


        and stroking and snuggling is not necessarily a dog that is trained to do a task that qualifies it to be a


        service animal.


17:     Are you talking about a service animal in the public accommodation sense of the ADA or a reasonable


        accommodation in the Fair Housing sense?


(Mr. Rode=s objection omitted)


1:      I know what the legal definition of a service animal is and I know what a pet is and I am not qualified




                                                     - 15 -
         to really make a judgment or render an expert opinion about other animals who are not pets or


         service animals. My opinion, if it=s not a service animal then I don=t know how to qualify it other than


         a pet.


17:      Okay. But you=re not an expert in psychiatric assistance animals?


1:       There is no such thing as a psychiatric assistance animal.


17:      Are you an expert in reasonable accommodations under the Fair Housing Act?


1:       No, I=m not an expert in that area.


17:      Are you an expert in psychiatric, the needs of someone with a psychiatric illness?


1:       No, that=s not my field of expertise.


         Again at page 79-80 of Ms. Styron=s deposition transcript - she testifies that she does not have the


expertise in evaluating the benefits of the individual tasks that the dog performs as that relates to a person with a


psychiatric disability and whether those tasks ameliorate the effects of a persons disability:


17:      In this case, on the day that Susan Duncan evaluated Joyce when she did this she was not in a panic


         attack, she was showing her the commands that she can do, but when Joyce has a panic attack it=s


         different from me yelling to my dog Alet=s go for a walk@ and the dog knows where the door is,


         because we=re talking about somebody who is in crisis and needs to find a way out.


1:       I don=t have the expertise to understand how Ms. Grad could be simultaneously in a situation where




                                                       - 16 -
        she has the presence of mind to give the dog this command but she is unable to go towards the exit.


        The dog is not large enough to lean on, the dog isn=t strong enough to pull her like a husky. There


        appears to be a contradiction in those two pieces of the scenario.


17:     Okay. Let=s look at letter D, AResponse to panic attack behavior@. It reads, Out of the apartment Ms.


        Grad demonstrated the position she assumes during a panic attack (on the floor, arms covering her


        head). The dog immediately went to Ms. Grad=s head trying to lick her face. When I attempted to


        coax it away or pull it by the leash, the dog sat and would not move away from Ms. Grad.@ Do you


        see that behavior on the part of the dog as something that can be trained?


1:      I believe that a dog could be taught to respond to a person assuming a particular position. I don=t


        have the expertise to know that when a person is experiencing a panic attack that they automatically go


        into that position and are able to stay there until the dog responds. That=s beyond my field of expertise


        to be able to explain that.


Again Ms. Styron, at page 84 of her deposition transcript stated, that she did not have the expertise to determine


whether Ms. Grad=s dog ameliorates the effects of Ms. Grad=s disability as specified in Susan Duncan=s report.


17:     But do you think this ameliorates the effects B if we presume that depression and abandoning hygiene


        and being unable to care for one=s self, if we assume that=s a disability, it is your opinion that a dog


        that does this ameliorates the effects of a disability.




                                                      - 17 -
1:      I don=t have the expertise to know if a dog, whether trained or untrained, reacting to an alarm clock


        ameliorates a particular disability. I really don=t think I can say any more about that than I=ve already


        said.


        Ms. Styron admitted that she was not qualified, or did not have enough knowledge to be able to


understand how this animal could benefit a person with a psychiatric disability, when questioned about each task


Ms. Grad=s dog performs as specified in Ms. Duncan=s report. Ms. Styron responded, at page 85- 87, AI


don=t have enough knowledge about a particular condition to know how a person could be at the same time


unable to find a familiar place like an apartment if they were not totally blind and how they could C other than


a problem locating it with eyesight, how they could remain in control of the dog and the leash and be safe


enough to be out traveling with that dog . . . That=s a difficult one for me to understand not being an expert


in that disability or condition.   At page 87, line 2 in response to the question regarding the effects of


psychotropic medications on an individual, AI have no expert knowledge in that area.@ When further asked to


discuss under what circumstances an animal, particularly a dog, could be considered an accommodation under


the Fair Housing Act, Ms. Styron at pages 93- 94 testified: ABecause it=s been decided this way in one instance


does not convince me that B I don=t see B I don=t understand, I don=t have the expert knowledge and all the


information required to know how, let=s say, for instance, a therapy hamster, whatever that is, it=s not defined,


is different than having a pet. If the fact that a person has a psychiatric disability and has a pet makes it not a




                                                      - 18 -
pet, I haven=t seen the justification so far and maybe it=s time for that kind of information to be solidified.


Again Ms. Styron testified, at pages 96 - 97, that she is not qualified to provide expert testimony in this case.


17.      . . .First of all, do you consider yourself an expert in assessing whether somebody has a substantial


        impairment in a major life activity, is that your area of expertise?


A.      No, it is not.


17:     So you=re not B I could provide you with umpteen pages of psychiatric progress notes and you


        wouldn=t be B you=re not an expert in that. Correct? It wouldn=t help you make an assessment


        because your not trained in that area. Correct?


1:      That=s true, but I still don=t have B haven=t been presented with any situations that have led me to


        understand that is the case with Ms. Grad.


17:     But you aren=t qualified B you don=t have the B


1:      (Interposing) Nobody has told me B


17.     (Interposing) Excuse me, I want to finish my question . . . No matter what we told you, you don=t


        have the qualifications to make that determination in a professional sense. Correct?


1.      Absolutely true.


On page 99, Ms. Styron again testified, AI am not qualified to really address the specific terminology and




                                                      - 19 -
qualifications of animals that are not strictly pets and not strictly service animals3. . . .


        Any testimony that Ms. Styron could or would provide would come from her firsthand experience as a


blind person who uses a guide dog: Who also advocates for other blind people who benefit from the use of their


guide dogs. Ms. Styron has absolutely no experience regarding persons with psychiatric disabilities and their


assistance animal. Therefore, Ms. Styron has no relevant expertise which would assist the trier of fact as to


whether Ms. Grad is disabled as a result of her psychiatric illness. Ms. Styron has no relevant knowledge or


expertise as to whether Royalwood should have granted Ms. Grad, as a person with a disability,   a reasonable

accommodation under the FHA. Ms. Styron has no relevant knowledge as to whether the requested

accommodation was both reasonable and necessary to afford Ms. Grad an equal opportunity to use

and enjoy her property at Royalwood. For all of the reasons stated above, Ms. Grad respectfully

requests that Ms. Styron=s report and testimony be excluded from trial.

B.      SHEILA STYRON=S TESTIMONY AND THE INFORMATION THE REPORT IS
        BASED UPON IS NOT RELIABLE.

        The second inquiry as outlined in Daubert and FRE 703, is whether the basis for the expert=s

opinion is reliable. Rules 702 and 703 grant expert witnesses, the latitude to testify as to their

opinions based upon the assumption that the expert=s opinion will have a reliable basis in the

knowledge and experience of his discipline. Kumho Tire Company at p.139. The Daubert court



        3
            This is the seminal question of this case - whether the dog qualifies as a reasonable
accommodation and need not be a service animal. Ms. Styron admits that she is not qualified
to address the issues and cannot be an expert.


                                                      - 20 -
discussed four factors to determine reliability: (1) Testing; (2) peer review; (3) error rates and;

(4)Aacceptability@ in the relevant scientific community B which might prove helpful in determining

the reliability of a particular scientific theory or technique. Id at p. 139. The trial judge may

consider one or more of the Daubert factors. The emphasis on the word Amay@ reflects Daubert=s

description of this inquiry as a flexible one. The Daubert factors do not constitute a definitive

checklist or test, and the gatekeeping inquiry must be tied to the particular facts. In Nemir, the

witness relying solely on experience must explain how that experience leads to the conclusion and

why there is a sufficient basis. Ms. Styron=s testimony is based on none of the aforementioned

factors and is therefore unreliable. Ms. Styron testified, at page 42, regarding her preparation for this

case and what information she considered as the basis of her opinion:

17.     Okay. Now prior to today you=ve never met Joyce Grad. Correct?


1.      No, I haven=t.


17.     So you have never done any assessment of her or the dog that she works with now, Lady. Correct?


1.      That=s correct.


17.     Have you been provided any information about the training Lady has had?


1.      I read Susan Duncan=s report.


Ms. Styron further testified at pp. 9-10, regarding her preparation for this case. Ms. Styron said that she only


read Defendant=s Motion for Summary Judgement, Ms. Grad=s November 10, 2000 letter to Mr. Cail and the




                                                    - 21 -
two letters that were attached and a portion of Susan Duncan=s report4. Ms. Styron has not reviewed the


complaint in this case, she did not review any of the deposition testimony or medical records and she reviewed


none of the articles referenced in Ms. Duncan=s reports.


        Ms. Styron claims in her Areport@ to have written numerous articles (Ex. 1 ).   However, her testimony

revealed that none of these articles dealt with service animals or reasonable accommodations related

to persons with psychiatric disabilities. Ms. Styron=s consumer advocacy work appears to be

exclusively related to issues involving guide dogs and other Ablindness related issues@5. This A

report@ is nothing more than pure advocacy on the part of Ms. Styron. Despite many efforts to

determine the exact basis for Ms. Styron=s opinion - namely that Ms. Grad is not disabled and that

her dog is a pet, and after 100 pages of testimony counsel for Plaintiff and Intervening Plaintiff are

none-the-wiser for the effort. In her report Ms. Styron wrote:

        The rights of people with disabilities are threatened, the value of their efforts and
        accomplishments diminished and the spirit of the law is tarnished when an admittedly
        uninformed public is further confused by at best well-meaning, non-disabled people
        claiming special treatment and public access with pets whose company they desire
        but do not have to depend on in order to accomplish ordinary tasks because major life
        functions are not impaired. (Ex. 5 at 101)

When asked:


        4
            In an effort to respect Ms. Styron=s time constraints on the day of her deposition,
Plaintiff=s counsel forwarded Susan Duncan=s report to Ms. Styron, via defense counsel, so
that Ms. Styron could review this report prior to her deposition. It is unclear whether Ms.
Styron would have reviewed this document otherwise.

        5
            Directly quoted from Sheila Styron=s Resume.


                                                     - 22 -
17.      Is that an opinion in this case, is that applying your knowledge to the facts of this case?


Ms. Styron replied:


1.       No, that is an opinion developed as a result of what is going on in the world at large and it=s an


         opinion rendered because of the need many of us in the disability movement feel to have clearer


         guidelines and better definitions.


         Ms. Styron pointed to the Agenerally accepted@ position of the Aworld at large@ and Amany in the


disability movement@ but provided not one shred of evidence to support this position.        Therefore her testimony


is unreliable and inadmissable.


         For the reasons stated above, Ms. Grad respectfully requests that Ms. Styron=s report and testimony be


excluded on the basis that it is unreliable and will not assist the jury to understand any issue or fact in this case.




                                           IV.          CONCLUSION


         The trial court has broad discretion to ensure that expert testimony is relevant and


reliable. In this instance, Plaintiff has shown that the testimony of Sheila Styron fails to meet


the relevancy and reliability standards as set forth in Rules 702, 703 and relevant case law.


Accordingly, Sheila Styron=s Areport@ and any testimony should be excluded.



                                                       - 23 -
                               V.        RELIEF REQUESTED


       Wherefore, Plaintiff requests that this Honorable Court grant her Motion in Limine to


exclude the testimony of Sheila Styron and grant all other just relief, including but not limited


to all costs and attorney fees associated with bringing this motion.




                                            Respectfully Submitted:

                                            Michigan Protection & Advocacy Service, Inc.




                                     Gabrielle S. Frampton (P59499)
                                            4095 Legacy Parkway, Suite 500
                                            Lansing, MI 48911
                                            Phone: (517) 487-1755
                                            Fax :(517) 487-0827
                                            Attorney for Intervening Plaintiff Joyce Grad
Date: October 20, 2004




                                             - 24 -

								
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