Expert Witness Blog
Plaintiff, parents of John Doe, sued defendant for negligence and loss of parental consortium. Defendant hired a Child Psychiatry Expert Witness to provide testimony. Plaintiff filed a motion to exclude, which wad granted by the court.
Facts: This case (Doe No. 143 et al v. Hartford School District – United States District Court – District of Vermont – February 26th, 2018) involves alleged sexual harassment by one kindergarten student upon another. The parents of the alleged victim sued the defendant (Hartford) alleging negligence and loss of parental consortium. To assist in their case, the defendants have hired Child Psychiatry Expert Witness Dr. Fabian M. Saleh, M.D. to provide testimony on their behalf. The plaintiffs have filed a motion to exclude this expert witness testimony.
Discussion: Dr. Saleh’s testimony involves the credibility or reliability of the statements of fact witnesses. Dr. Saleh is a clinical professor of psychiatry at Harvard Medical School and is the director of the Sexual Violence and Prevention and Risk Management Programs at Beth Israel Deaconess Medical Center in Boston, Massachusetts. His work comprises forensic and diagnostic assessments of sex offenders and children and adolescents who are victims of sexual abuse. After conducting his interviews of fact witnesses, Dr. Saleh opines that he could not conclude whether something of an inappropriate or violent nature happened between the plaintiff and the other kindergartner.
The plaintiff’s allege that Dr. Saleh’s opinions on the reliability of John Doe’s statements should be excluded. The defendant replies that Dr. Saleh can properly offer an expert opinion on the reliability of John Doe’s statements without opining on his credibility.
Dr. Saleh opines that he relied on the inconsistent and, at times, contradictory accounts of John Doe and the other Kindergartner, lack of reliable eye-witness accounts and/or physical evidence.
The court opines that an expert witness is not allowed to opine on a witness’s credibility based on his assessment of inconsistencies as this would usurp the function of the jury. Dr. Saleh’s conclusions would attempt to substitute his judgment for that of the jury and are thus in admissible.
In addition, Dr. Saleh spoke to the effect of suggestive interviewing techniques on the memory of a child. The plaintiffs claim that Dr. Saleh does not connect these assertions with the specific facts on the record. The court opines that expert witness testimony on this issue is generally permissible because it is beyond the knowledge of the average juror. That said, the court opines that not all of Dr. Saleh’s opinions are admissible. While he may opine about interviewing techniques he may not offer an opinion that children are generally unreliable witnesses.
Conclusion: The motion to exclude the expert witness testimony of Dr. Fabian M. Saleh, M.D. is granted.