United States District Court, D. Minnesota
Tenner Murphy, by his guardians Kay and Richard Murphy; Marrie Bottelson; Dionne Swanson; and on behalf of others similarly situated, Plaintiffs,
Pam Wheelock in her capacity as Acting Commissioner of The Minnesota Department of Human Services, Defendant.
W. Anthony, Esq., Peter McElligott, Esq., and Steven M.
Pincus, Esq., Anthony Ostlund Baer & Louwagie PA; Laura
Farley, Esq., and Steven Andrew Smith, Esq., Nicholas Kaster
PLLP; Barnett I. Rosenfeld, Esq., and Justin H. Perl, Esq.,
Mid-Minnesota Legal Aid; Eren Ernest Sutherland, Esq., Justin
M. Page, Esq., and Steven C. Schmidt, Esq., Mid-Minnesota
Legal Aid, Minnesota Disability Law Center, counsel for
Winter, Brandon L. Boese, Janine Wetzel Kimble, and Scott H.
Ikeda, Assistant Attorneys General, Minnesota Attorney
General's Office, counsel for Defendant.
McGarraugh, Esq., and Samuel D. Orbovich, Esq., Fredrikson
& Byron, counsel for amicus ARRM.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion to
Exclude Expert Testimony of John Patterson (Doc. No. 488),
and Defendant's Motion to Exclude Plaintiffs' Expert
Testimony, Reports, and Opinions (Doc. No. 468). For the
reasons set forth below, the Court grants Plaintiffs'
motion, and denies Defendant's motion.
Court previously detailed the background of this case in its
May 18, 2017 Memorandum Opinion and Order (Doc. No. 54), and
the Court only briefly summarizes the facts
here. In short, Plaintiffs are individuals with
disabilities and Medicaid recipients who receive Home and
Community Based Disability Waivers (“Disability
Waivers”) from the State of Minnesota under the
direction of Defendant Pam Wheelock
(“Defendant”), Acting Commissioner of the
Minnesota Department of Human Services (“DHS”).
Plaintiffs reside in Community Residential Setting
(“CRS”) facilities- otherwise known as corporate
adult foster care-and wish to access various individualized
housing services available under the Disability Waivers to
pursue more integrated housing options. Plaintiffs assert
that their current living situations isolate and segregate
them from their communities in violation of federal law. To
access the services they seek in a timely manner and with
proper due process, Plaintiffs seek declaratory and
injunctive relief to reform Defendant's administration of
the Disability Waiver programs. The Court supplements the
relevant facts as needed, below.
move to exclude the expert testimony of Defendant's
expert, John Patterson (“Patterson”). (Doc. No.
488.) Patterson serves as Minnesota Housing's Director of
Planning, Research, and Evaluation. (Doc. Nos. 491
(“Page Aff.”) ¶ 3; 491-1, Ex. 2
(“Patterson Report”) at 6.) He holds a Bachelor
of Arts in Economics from Middlebury College, and a Master of
Public Affairs from the Woodrow Wilson School of Public and
International Affairs at Princeton University. (Id.
at 102.) He has over twenty-five years of professional
experience-eleven in his current capacity. (Id. at
101.) His testimony and opinions relate to the availability
of affordable housing in Minnesota. (Page Aff. ¶ 2; Doc
No. 491-1, Ex. 1 (“Expert Disclosure”) at 2.)
move to exclude the expert testimony, reports, and opinions
of Plaintiffs' experts, David Michael Mank, Ph.D.
(“Dr. Mank”), and Dennis F. Price
(“Price”). (Doc. No. 468.) Dr. Mank holds a
Bachelor of Arts in Psychology and English from Rockhurst
College, a Master of Science in Special Education from
Portland State University, and a Doctor of Philosophy in
Special Education and Rehabilitation from University of
Oregon. (Doc. Nos. 494 (“Winter Decl. Part 1”)
¶ 41; 498 (“Winter Decl. Part 3”), Ex. 40
(“Dr. Mank Report”), Ex. A (“Dr. Mank
Resume”) at 2.) Dr. Mank worked for 5 years as a
resident assistant in an Oregon Intermediate Care Facility
for people with intellectual and developmental disabilities.
(Dr. Mank Report at 2.) He then worked as a Research
Assistant, and later, Associate Professor at the University
of Oregon on projects related to community living and
integrated employment for people with intellectual and
developmental disabilities. (Id.) From 1996 to
September 2016, Dr. Mank was director of the Indiana
Institute on Disability and Community at Indiana University.
(Id.) Mank's testimony and opinions relate to
the nature of segregation and extent of choice in Corporate
Foster Care (“CFC”) facilities versus
individualized housing options (“IHOs”) in
Minnesota. (Id. at 1.)
holds a Bachelor of Arts in Psychology from Oakland
University. (Doc. Nos. 310 (“Schmidt Aff.”)
¶ 5; 310-1, Ex. 4 (“Price Report”) at 21.)
He has worked for over 40 years as a professional in the
social services field. (Id. at 20.) For the past 30
years, he developed and oversaw the creation and continuous
improvement of a variety of alternative means of supporting
individuals with disabilities in the community, including
housing. (Id. at 20-24.) Price's professional
experience includes oversight of the Dakota County Housing
and Resource Development Unit. (Id. at 22.) His
opinions relate to: (1) whether Minnesota's
Olmstead Plan is an effectively working plan
ensuring that individuals with disabilities who live in CFC
facilities are provided with reasonable choice and
opportunity in their housing and appropriate assistance if
they chose to move to IHOs; (2) whether the policies and
practices of DHS are providing individuals with disabilities
who live in CFC facilities with adequate choice and
opportunity to reside in individualized housing options; (3)
whether Plaintiffs' requested relief constitutes
reasonable modifications to DHS's Disability Waiver
service system that will assist individuals with planning or,
moving to, and living in individualized housing options that
are the most integrated settings appropriate to their needs;
and (4) whether Plaintiffs' requested relief
fundamentally alters DHS's Disability Waiver Service
System. (Id. at 19.)
accepting the testimony of an expert witness, the trial court
is charged with the “gatekeeper” function of
determining whether an opinion is both relevant and reliable.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
589-90 (1993); Aviva Sports, Inc. v. Fingerhut Direct
Mktg., Inc., 829 F.Supp.2d 802, 820 (D. Minn. 2011). The
Eighth Circuit extended the Daubert holding to apply
to non-scientific experts qualified by their experience,
education, skill, or expertise in their field. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 147 (1999). When the
district court sits as a finder of fact, “there is less
need for the gatekeeper to keep the gate when the gatekeeper
is keeping the gate only for himself.” David E.
Watson, P.C. v. U.S., 668 F.3d 1008, 1015 (8th
qualified expert may testify if: (1) “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”; (2) “the testimony is
based on sufficient facts or data”; (3) “the
testimony is the product of reliable principles and
methods”; and (4) “the expert has reliably
applied the principles and methods to the facts of the
case.” Fed.R.Evid. 702; see also Lauzon v. Senco
Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001).
“Expert testimony which does not relate to any issue in
the case is not relevant, and ergo, non-helpful.”
Daubert, 509 U.S. at 591 (internal quotation marks
and citation omitted). Finally, expert testimony is
appropriate when “it relates to issues that are beyond
the ken of people of ordinary experience.” U.S. v.
Clapp, 46 F.3d 795, 802 (8th Cir.1995) (internal
quotation marks and citation omitted). “Where the
subject matter is within the knowledge or experience of
laymen, expert testimony is superfluous.” Id.
determining whether the proposed expert testimony is
reliable, the Court can consider: (1) whether the theory or
technique can be and has been tested; (2) whether the theory
or technique has been subjected to peer review and
publication; (3) the known rate of potential error; and (4)
whether the theory has been generally accepted. Id.
at 593-94. The purpose of these requirements “is to
make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field.” Kuhmo Tire Co., 526 U.S. at 152.
Kuhmo Tire, the Supreme Court determined, “the
trial judge must have considerable leeway in deciding in a
particular case how to go about determining whether
particular expert testimony is reliable.” 526 U.S. at
152. In other words, a trial court should consider
the specific factors identified in Daubert where
there are reasonable measures of the reliability of expert
testimony. Id. The objective of that requirement is
to ensure the reliability and relevancy of expert testimony.
Court also notes that “Rule 702 reflects an attempt to
liberalize the rules governing the admission of expert
testimony, ” and it favors admissibility over
exclusion. Lauzon, 270 F.3d at 686 (quoting
Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir.
1999)). When examining an expert opinion, a court applies a
general rule that “the factual basis of an expert
opinion goes to the credibility of the testimony, not the
admissibility, and it is up to the opposing party to examine
the factual basis for the opinion in
cross-examination.” Bonner, 259 F.3d at 929-30
(quoting Hose v. Chicago Nw. Transp. Co., 70 F.3d
968, 974 (8th Cir. 1995)). “[I]f the expert's
opinion is so fundamentally unsupported that it can offer no
assistance to the jury, ” then it must be excluded.
Id. at 929-30.
move to exclude the expert testimony of John Patterson.
Patterson intends to testify with respect to “issues
related to the availability and affordability of housing in
Minnesota; the supply of low-income housing in Minnesota;
[and] the Minnesota Housing Finance Agency's work to
address issues related to low-income housing in Minnesota.
(Page Aff. ¶ 2, Expert Disclosure at 2.) Patterson's
report consists of four documents: (1) Minnesota Housing:
Statewide Analysis of Gaps in Affordable Housing, dated March
2015; (2) Minnesota Housing Memorandum: Updated Gaps
Analysis, dated September 7, 2017; (3) a PowerPoint entitled,
Minnesota Housing: Key Trends in Housing, dated, January
2018; and (4) Minnesota Housing: The Loss of Naturally
Occurring Affordable Housing, dated May 2, 2018.
(See Patterson Report at 6.) ...