THIS CAUSE comes before the Court for consideration of Defendants’ Daubert Motion to Exclude Testimony of Dr. Alex Redcay, (Dkt. 103), and Plaintiff’s response in opposition thereto. (Dkt. 111) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Defendant’s Daubert Motion. (Dkt. 103)

I. BACKGROUND

Shane Davis filed this action on behalf of his adopted son J.D.D., a minor child ("Plaintiff"), asserting claims pursuant to 42 U.S.C. § 1983 against Mike Carroll ("Carroll"), in his official capacity as Secretary of the Florida Department of Children and Families ("DCF"), Wileen Weaver, n/k/a Randall ("Weaver"), in her official and individual capacities as a Family Services Counselor for DCF, and Pauline Riley ("Riley"), in her official and individual capacities as a Family Services Counselor Supervisor for DCF (collectively, "Defendants"). (Dkt. 17) In Counts I, II, and III of the Second Amended Complaint, Plaintiff asserts claims against Weaver and Riley for violating J.D.D.’s federal statutory rights to Early Periodic Screening, Diagnosis, and Treatment ("EPSDT") and "outreach services" under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. and for violating J.D.D.’s constitutional right to due process under the Fourteenth Amendment for failing to have him tested for HIV while he was in the custody of DCF. (Id. at 11-14) Count IV of the Second Amended Complaint asserts the same federal statutory and constitutional violations as to Defendant Carroll in his official capacity, but seeks only declaratory and prospective injunctive relief for DCF’s ongoing failure to notify J.D.D. and his parents of available Medicaid benefits. (Id. at 15-16) In support of his argument that Weaver and Riley were deliberately indifferent to J.D.D.’s need for HIV screening while in the care and custody of DCF, Plaintiff offers the expert report of Dr. Alex Redcay.

Dr. Redcay received a B.A. in Psychology in 2001, a Masters in Social Work in 2008, and a PhD in Social Work from Rutgers University in 2016. (Dkt. 103-2 at 1) Her Curriculum Vitae ("C.V.") states that her teaching and research interests are in the areas of mental health and substance abuse, child welfare, LGBT issues, and research methods. (Id. ) She is currently an Assistant Professor in the School of Social Work at Millersville University in Pennsylvania, teaching courses in Social Work Field Practicum, Social Work Research, Research Methods, Advanced Research Methods, and LGBT Issues. (Id. ) Dr. Redcay is licensed in Clinical Social Work in Pennsylvania and New Jersey. (Dkt. 112 at 17:14-15) She also testified that she worked with the equivalent of DCF in New Jersey and Connecticut for a number of years. (Id. at 11:1-9) Specifically, Dr. Redcay’s C.V. states that she worked for the Department of Children and Families in Connecticut from March 2005 to August 2010 as a social worker and an investigator. (Dkt. 103-2 at 16-17) She testified that she "consulted" with the N.J. equivalent of DCF for a few years thereafter, (Dkt. 112 at 11:8-16), and has participated in formulating policies and procedures for these agencies in Connecticut, New Jersey, and in Pennsylvania. (Id. at 20:18-25; 21:1) Dr. Redcay also has experience working with children who have HIV, but she has never worked with a newborn who had HIV. (Id. at 23:8-12) However, she testified that the HIV positive children with whom she has worked all contracted the virus at birth. (Id. at 23:20-21; 94:14-16)

Plaintiff advises that Dr. Redcay was retained to discuss the overall reasonableness of Weaver and Riley’s failure to have J.D.D. tested for HIV while he was in the custody of DCF, not their responsibilities and compliance with Florida’s policies and procedures. (Dkt. 111 at 2) Nevertheless, Dr. Redcay’s expert report lists the following as her expert conclusions in this case:

1. J.D.D. was removed and placed into the care, custody, and control of DCF, Weaver, and Riley. (Dkt. 103-1 at 2)

2. DCF, Weaver, and Riley were "entirely and singularly responsible for ensuring a comprehensive medical screening" upon J.D.D.’s removal. (Id. )

3. In view of J.D.D.’s birth mother, Angela Davis’s numerous risk factors, the need for J.D.D.’s comprehensive medical screening was "particularly heightened." (Id. )

4. DCF, Weaver, and Riley did not ensure that a comprehensive medical screening or medical care was conducted for J.D.D. (Id. )

5. J.D.D. developed a life-threatening illness that could have been prevented if appropriate medical referrals were completed. Due to a failure to ensure medical referrals, testing, intervention, and treatment, J.D.D. developed a life-threatening illness. (Id. )

Thus, her report ultimately concludes that:

[Weaver and Riley] were entirely and singularly responsible, but failed to ensure that a comprehensive medical exam was completed, as required by state and federal law, by then-existing administrative rule, and by minimal standards of ensuring child welfare. Despite the extremely high risk for this child’s contracting a range of life threatening illnesses, no testing, screening or medical care was completed. The child, [J.D.D.], has subsequently developed a life-threatening illness that could have been prevented.

It is my expert professional opinion, based upon my education, training and experience in the field of social work and child protective services, that the proper, even minimally protective course of action to be taken when confronted with the level of danger posed to the child by having been born cocaine dependent to a biological mother with a history of drug abuse and lack of prenatal care, would have been to have the child tested for communicable diseases, particularly in light of the fact the birth mother had significant high risk behavior.

(Id. at 5) (emphasis in original) While it is not included in her report, Dr. Redcay also opined in her deposition testimony that Defendants Riley and Weaver were "willfully indifferent" and "significantly neglectful" to J.D.D.’s care. (Dkt. 112 at 135:21-24, 141:21)

Defendants have moved to exclude Dr. Redcay as an expert in this matter. (Dkt. 103) For the reasons that follow, Defendants’ motion is due to be granted.

II. STANDARD

Federal Rule of Evidence 702, which governs expert testimony, states as follows:

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 qualified 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 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.

Rule 702 requires district courts to ensure "that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daubert "requires the trial court to act as a gatekeeper to insure that speculative and unreliable opinions do not reach the jury." McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1237 (11th Cir. 2005). "This function inherently requires the trial court to conduct an exacting analysis of the foundations of expert opinions to ensure they meet the standards for admissibility under Rule 702." United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc) (alterations and internal quotation marks omitted). "The proposed testimony must derive from the scientific method; good grounds and appropriate validation must support it." McClain, 401 F.3d at 1237.

In considering proffered expert testimony, the Court considers that "[t]he burden of laying the proper foundation for the admission of expert testimony is on the party offering the expert, and the admissibility must be shown by a preponderance of the evidence." McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002) (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999) ). In determining the admissibility of expert testimony under Rule 702, the Court applies a "rigorous" three-part inquiry. Frazier, 387 F.3d at 1260. Expert testimony is admissible if: "(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable ...; and (3) the testimony assists the trier of fact ...." Id. ; see also United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001). The admission of expert testimony is a matter within the discretion of the district court, which is accorded latitude in making its determination. Cook v. Sheriff of Monroe County, 402 F.3d 1092, 1103 (11th Cir. 2005); Frazier, 387 F.3d at 1258-59.

The first requirement for the admissibility of expert testimony is that the expert is qualified to testify competently regarding the matters he or she intends to address. Frazier, 387 F.3d at 1260-61. The plain language of Rule 702 provides that a person may qualify as an expert based upon his or her knowledge, skill, experience, training, or education. Id. Determining whether a witness is qualified to testify as an expert "requires the trial court to examine the credentials of the proposed expert in light of the subject matter of the proposed testimony." Jack v. Glaxo Wellcome, Inc., 239 F.Supp.2d 1308, 1314-16 (N.D.Ga. 2002). In other words, a district court must consider whether an expert is qualified to testify competently regarding the matters he intends to address. City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562-63 (11th Cir. 1998).

The second requirement, discrete and independent from the witness’s qualifications, is reliability. Frazier, 387 F.3d at 1261. Courts have "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Id. at 1262 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ). While the inquiry is "a flexible one," the focus "must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786. However, "conclusions and methodology are not entirely distinct from one another ... [and] nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). "Rather, the trial court is free to ‘conclude that there is simply too great an analytical gap between the data and the opinion proffered.’ " Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010) (citing Joiner, 522 U.S. at 146, 118 S.Ct. 512). "The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted." Frazier, 387 F.3d at 1262 (quoting Fed.R.Evid. 702 Advisory Committee Notes (2000 amends.) ) (emphasis in original).

The third requirement for admissibility is that the expert testimony must assist the trier of fact. Frazier, 387 F.3d at 1262. Thus, "expert testimony is admissible if it concerns matters that are beyond the understanding of the average lay person," and "[p]roffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments." Id. at 1262-63. While an expert witness may not offer a legal conclusion, Rule 704(a) provides that an opinion or inference is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact. Cook, 402 F.3d at 1112-13 n.8. However, "courts must remain vigilant against the admission of legal conclusions, and an expert witness may not substitute for the court in charging the jury regarding the applicable law." Id. (quoting United States v. Milton, 555 F.2d 1198, 1203 (5th Cir. 1977) ).

Finally, expert testimony which satisfies these three requirements may nonetheless be excluded under Rule 403 if the probative value of the expert testimony is substantially outweighed by its potential to confuse or mislead the jury, or if it is cumulative or needlessly time consuming. Frazier, 387 F.3d at 1263.

III. DISCUSSION

For the reasons that follow, Dr. Redcay’s conclusions are excluded.

A. Qualifications

In their motion, Defendants argue that Dr. Redcay is not sufficiently qualified to testify as to the reasonableness of Weaver and Riley’s actions or inaction in connection with this matter because she has no practical experience with Florida DCF. (Dkt. 103 at 9-12) Specifically, Defendants contend that while Dr. Redcay has an extensive educational background in social work, her specialty is related to working with adolescents in foster care, not infants, and that she has no relevant experience with Florida DCF that would qualify her to render opinions about Riley and Weaver’s duty, knowledge, or responsibilities in the case at hand. (Id. at 10-11) Plaintiff seemingly concedes this by noting that he did not retain Dr. Redcay as a compliance expert or as an expert concerning Florida DCF’s policies or procedures. (Dkt. 111 at 2) What is at issue in this matter, Plaintiff argues, are the United States Code and the United States Constitution, not state statutes and rules. (Id. ) However, Dr. Redcay’s report and conclusions appear to be based in large part on her understanding of Weaver and Riley’s responsibilities and lack of compliance with Florida statutes and administrative code provisions. (See Dkt. 103-1 at 3, 5) Thus, to the extent that her opinions are informed by these statutes and rules, Dr. Redcay is not a qualified expert.

In her deposition, Dr. Redcay admitted that she has never done any relevant work with the Florida DCF. (Dkt. 112 at 44:3-23) Dr. Redcay also admitted that there is no national license of Clinical Social Work, conceding that, "[c]linical Social Work licenses are per state." (Id. at 17:18-19) As Defendants point out, Dr. Redcay did not testify that the licensing requirements in Florida are the same or substantially similar to those in either Pennsylvania or New Jersey, and she did not indicate that her status as a licensed clinical social worker qualifies her as an expert on the professional responsibilities of social workers licensed in Florida. (Dkt. 103 at 12) Understandably, Dr. Redcay appeared to be very comfortable testifying about the intricacies and "quirks" of Connecticut’s rules and policies pertaining to the obligations of DCF workers. (Dkt. 112 at 14:5-13, 33:11-25, 34:1-7) However, she did not express that same familiarity with Florida’s rules, policies, and procedures, which one would have expected of an expert opining on Florida DCF workers’ responsibilities, obligations, and conduct to possess. (Id. at 36:7-24, 108:6-10) In fact, Dr. Redcay admitted at her deposition that she had not read all of the applicable code provisions. (Id. at 36:21, 42:10-11)

Another Middle District of Florida case has addressed the admissibility of an expert opinion offered to establish that DCF officials were deliberately indifferent to the abuse of a child in their custody. Omar v. Lindsey, et al ., No. 6:02-cv-01063-PCF-KRS, (M.D. Fla. Aug. 27, 2004) (Order granting motion for summary judgment, Dkt. 115), aff’d sub nom. Omar v. Babcock, 177 Fed.Appx. 59 (11th Cir. 2006). The expert in that case, Linda Radigan, was a former Florida DCF official who had worked at the central office for 10 years. Id. During her tenure there, she served in various positions, including Assistant Secretary with responsibility for the program that operated the foster care system. Id. She also claimed that she had "first hand personal knowledge of the statutes, rules, regulations, policies, and procedures pertinent to Florida’s foster care systems and of the various job duties of foster system personnel." Id. Thus, based on her experience, the district court found that Ms. Radigan was qualified as an expert witness to testify on the statutes, rules, regulations, policies, and procedures pertinent to Florida’s foster care system and the various job duties of foster system personnel of the Florida DCF. Id. However, the court ultimately struck other impermissible portions of Ms. Radigan’s opinions, discussed infra . Id.

Unlike Ms. Radigan, Dr. Redcay has no relevant experience with Florida DCF, yet she opines that Weaver and Riley were responsible for ensuring a comprehensive medical exam was completed, (Dkt. 103-1 at 3, 5), that Weaver and Riley’s conduct fell below the appropriate standard of care, (Id. at 142:1-4), and that it was "absolute willful indifference that they have the responsibility to do it and they didn’t." (Id. at 141:3-5) Such testimony is tied in large part to Dr. Redcay’s understanding of Weaver and Riley’s responsibilities under the Florida statutes and administrative code provisions with which she is admittedly not personally or professionally familiar but only examined for the first time in preparation for drafting her report. (Dkt. 112 at 74:23-24, 75:2-4) To this extent, her analysis of Weaver and Riley’s responsibilities under these rules and their failure to act accordingly is insufficient to meet the expert standard. Plaintiff has the burden of proving that Dr. Redcay’s experience with the laws and inner workings of other states’ departments of children and families is sufficiently informed and studied to render her competent to opine as to the propriety of the conduct of Florida DCF workers operating under Florida’s laws and regulations. McCorvey, 298 F.3d at 1256. Plaintiff has not met this burden. Rather, as noted above, Plaintiff seemingly concedes that Dr. Redcay is not qualified to testify on compliance matters. Thus, to the extent that her opinions concern what Weaver and Riley’s responsibilities were under Florida law and whether their inaction was a violation of Florida’s statutes, rules, regulations, policies, and procedures, the Court finds that Dr. Redcay is not qualified.

Defendants also argue that Dr. Redcay is not qualified to render medical opinions about J.D.D.’s illness, including that it "could have been prevented if appropriate medical referrals were completed." (Dkt. 103 at 12-14) While Dr. Redcay is certified in Medicine Administration, and possesses some medical training through her work with Connecticut DCF, in rehabs, and from her work at a camp for children with diabetes, (Dkt. 112 at 16:19-25, 17:1-8, and 17:10), she is not qualified as a medical expert to render an opinion on whether J.D.D.’s illness could have been prevented had it been discovered and treated sooner. Dr. Redcay was unable to articulate what treatment could have prevented J.D.D. from developing HIV/AIDS, the percentage of success if treatment is administered, or the probability of a child who does not receive treatment developing HIV. (Id. at 115:21-25, 117:10-25) Further, in her deposition, Dr. Redcay clarified that she based this opinion on her review of Dr. Tureen’s expert report, as well as "common knowledge." (Id. at 115:13-18) While it is true that an expert’s testimony may be formulated by the use of the facts, data and conclusions of other experts, such expert must make informed findings and not merely regurgitate another expert’s opinion. Eberli v. Cirrus Design Corp., 615 F.Supp.2d 1357 (S.D. Fla. 2009). In the instant case, Dr. Redcay’s opinion that J.D.D.’s illness could have been prevented if proper medical assessment and care had been provided by DCF is merely a regurgitation of Dr. Tureen’s medical opinion, offers nothing further, and is cumulative under Rule 403.

B. Reliability

The Court also has concerns about the reliability of Dr. Redcay’s methodology used to reach her opinions and conclusions, particularly with respect to her reliance on what she considers to be "standard" policies and procedures nationally for DCF workers. To admit expert testimony, the court must assess whether the methodology underlying the proposed testimony is valid and properly applied to facts in issue. Frazier, 387 F.3d at 1261 (citing Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Non-scientific, experience-based testimony, like Dr. Redcay’s, will be admissible only if it is "properly grounded, well-reasoned, and not speculative." Fed.R.Evid. 702 Advisory Committee Notes (2000 amends.) ).

In addition to discussing Weaver and Riley’s responsibilities under Florida law, Dr. Redcay frequently discussed what she considered to be "standard operating procedure" of DCFs nationally as the basis for her opinion that Weaver and Riley’s conduct fell below the standard of care. (See Dkt. 112 at 73:15-23, 74:23-25, 75:2-25, 76: 2-6, 89:20-22, 118:8-11). However, at no point in her deposition could Dr. Redcay point to any written or unwritten "standard" policies or procedures that govern the conduct of social workers nationally. (Id. at 74:21-25; 75:1-13) In fact, Dr. Redcay admitted that her opinions about the standard of care and duties required of DCF workers are based solely on her knowledge and experience with the departments and states with which she has worked, which does not include Florida, and she specifically admitted that she "can’t speak to all 50 [states]" when questioned about these "standard" procedures. (Id. at 75:6-13, 77:5-8) ("I would have to look up the policies to cite them. But it’s true in several departments that I’ve worked with, or several states that I’ve worked with.") Thus, Dr. Redcay’s opinions that are based on alleged national standards for DCF workers, suggesting that Weaver and Riley were responsible for having J.D.D. tested for HIV, should have requested that J.D.D. be tested for HIV, and exhibited "absolute willful indifference" in failing to have him tested, are impermissible as the ipse dixit of Dr. Redcay. (Id. at 59:8-10)

C. Helpfulness

While she does not offer these opinions in her expert report, Dr. Redcay testified at her deposition that Weaver and Riley’s conduct fell below the standard of care and that they were "willfully indifferent." Specifically, when prompted by Plaintiff’s counsel, Dr. Redcay agreed that Weaver and Riley’s conduct fell below the standard of care in performing their duties for the child by not ensuring that an HIV test was done, (Id. at 128:17), and that "they willfully violated his medical care and his __ I don’t know if I can say his rights, because I would understand rights differently, but they were willfully indifferent to his care." (Id. at 135:21-24) Dr. Redcay also testified that Weaver and Riley’s conduct was "significantly neglectful" and that "[i]t is so far away from the standard of care, significantly below the standard of care, that this testing wasn’t done. That’s the significant indifference." (Id. at 141:21-25, 142:1-4) Dr. Redcay also opines that "any reasonable social worker, any reasonable parent would’ve made the request." (U at 137:23-24)

The Court finds that Dr. Redcay’s testimony in this regard consists of impermissible and unhelpful legal conclusions that go to the ultimate legal issue in this case of whether Weaver and Riley were deliberately indifferent, improperly usurping the jury’s role of making this determination. The exclusion of such opinions was upheld by the Eleventh Circuit in Omar v. Babcock, which affirmed the district court’s order striking Plaintiff’s DCF expert’s statements that the defendants acted with deliberate indifference, conscious disregard, and reckless disregard. 177 Fed.Appx. at 59, 63 n.5 (11th Cir. 2006). The Eleventh Circuit upheld the determination that Ms. Radigan was not qualified to testify as to the state of mind of others, nor was her testimony necessary for the jury to understand the facts of the case or to determine the ultimate question. Id. The court further noted that "a plaintiff cannot rely on legal conclusions articulated by an expert to meet his burden of coming forward with relevant evidence." Id. (citing Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991) ). Here the Court likewise finds that Dr. Redcay’s opinions that the Defendants acted with willful indifference are more appropriately left to the judgment of the trier of fact.

The Court notes that "[a]lthough an unpublished opinion is not binding on this court, it is persuasive authority. See 11th Cir. R. 36-2." United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000).

IV. CONCLUSION

Upon consideration of the foregoing and being otherwise fully advised, the Court hereby ORDERS that Defendants’ Daubert Motion to Exclude Testimony of Dr. Alex Redcay, (Dkt. 103), is GRANTED.

DONE and ORDERED in Tampa, Florida, this 27th day of September, 2018.

Davis on Behalf of J.D.D. v. Carroll

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Davis on Behalf of J.D.D. v. Carroll

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