Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Murphy v. Wheelock

United States District Court, D. Minnesota

August 6, 2019

Tenner Murphy, by his guardians Kay and Richard Murphy; Marrie Bottelson; Dionne Swanson; and on behalf of others similarly situated, Plaintiffs,
Pam Wheelock[1] in her capacity as Acting Commissioner of The Minnesota Department of Human Services, Defendant.

          Joseph 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 Plaintiffs.

          Aaron Winter, Brandon L. Boese, Janine Wetzel Kimble, and Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney General's Office, counsel for Defendant.

          Pari McGarraugh, Esq., and Samuel D. Orbovich, Esq., Fredrikson & Byron, counsel for amicus ARRM.




         This 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.


         The 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.[2] 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.

         Plaintiffs 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.)

         Defendants 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.)

         Price 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.)


         I. Legal Standard

         Before 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.”[3] David E. Watson, P.C. v. U.S., 668 F.3d 1008, 1015 (8th Cir. 2012).

         A duly 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.

         In 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.

         In 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. Id.

         The 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.

         A. Plaintiffs' Motion

         Plaintiffs 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.) ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.