Opinion
CIVIL ACTION FILE NO. 1:21-cv-04278-WMR
2023-08-21
Jane DOES 1-4, Plaintiffs, v. RED ROOF INNS, INC., et al., Defendants.
Amanda Kay Seals, John Earl Floyd, Juliana Mesa, Manoj Sam Varghese, Michael Rosen Baumrind, Tiana Scogin Mykkeltvedt, Bondurant Mixson & Elmore, LLP, Atlanta, GA, Jonathan Tonge, Patrick J. McDonough, Andersen, Tate & Carr, P.C., Duluth, GA, for Plaintiffs. Admir Allushi, Charles Kyle Reed, P. Michael Freed, Lillian Kate Henry, Emma Jeanette Fennelly, Lewis, Brisbois, Bisgaard & Smith, LLP, Atlanta, GA, Marcella Coladangelo Ducca, Greenberg Traurig, LLP, Atlanta, GA, C. Ashley Saferight, Pro Hac Vice, Chelsea R. Mikula, Pro Hac Vice, Tucker Ellis, LLP, Cleveland, OH, Sandra Wunderlich, Pro Hac Vice, Tucker Ellis, LLP, St. Louis, MO, for Defendants Westmont Hospitality Group, Inc., Red Roof Inns, Inc., Red Roof Franchising, LLC, RRI West Management, LLC, RRI III, LLC. Admir Allushi, Charles Kyle Reed, P. Michael Freed, Emma Jeanette Fennelly, Lewis, Brisbois, Bisgaard & Smith, LLP, Atlanta, GA, Marcella Coladangelo Ducca, Greenberg Traurig, LLP, Atlanta, GA, C. Ashley Saferight, Pro Hac Vice, Chelsea R. Mikula, Pro Hac Vice, Tucker Ellis, LLP, Cleveland, OH, Sandra Wunderlich, Pro Hac Vice, Tucker Ellis, LLP, St. Louis, MO, for Defendant FMW RRI NC, LLC. C. Shane Keith, Elliott Crawford Ream, Warner S. Fox, Hawkins Parnell & Young, LLP, Atlanta, GA, for Defendant Varahi Hotel, LLC.
Amanda Kay Seals, John Earl Floyd, Juliana Mesa, Manoj Sam Varghese, Michael Rosen Baumrind, Tiana Scogin Mykkeltvedt, Bondurant Mixson & Elmore, LLP, Atlanta, GA, Jonathan Tonge, Patrick J. McDonough, Andersen, Tate & Carr, P.C., Duluth, GA, for Plaintiffs. Admir Allushi, Charles Kyle Reed, P. Michael Freed, Lillian Kate Henry, Emma Jeanette Fennelly, Lewis, Brisbois, Bisgaard & Smith, LLP, Atlanta, GA, Marcella Coladangelo Ducca, Greenberg Traurig, LLP, Atlanta, GA, C. Ashley Saferight, Pro Hac Vice, Chelsea R. Mikula, Pro Hac Vice, Tucker Ellis, LLP, Cleveland, OH, Sandra Wunderlich, Pro Hac Vice, Tucker Ellis, LLP, St. Louis, MO, for Defendants Westmont Hospitality Group, Inc., Red Roof Inns, Inc., Red Roof Franchising, LLC, RRI West Management, LLC, RRI III, LLC. Admir Allushi, Charles Kyle Reed, P. Michael Freed, Emma Jeanette Fennelly, Lewis, Brisbois, Bisgaard & Smith, LLP, Atlanta, GA, Marcella Coladangelo Ducca, Greenberg Traurig, LLP, Atlanta, GA, C. Ashley Saferight, Pro Hac Vice, Chelsea R. Mikula, Pro Hac Vice, Tucker Ellis, LLP, Cleveland, OH, Sandra Wunderlich, Pro Hac Vice, Tucker Ellis, LLP, St. Louis, MO, for Defendant FMW RRI NC, LLC. C. Shane Keith, Elliott Crawford Ream, Warner S. Fox, Hawkins Parnell & Young, LLP, Atlanta, GA, for Defendant Varahi Hotel, LLC. ORDER WILLIAM M. RAY, II, United States District Court Judge
This matter is before the Court on Defendants Red Roof Inns, Inc., FMW RRI NC, LLC, Red Roof Franchising, LLC, RRI West Management, LLC, and RRI III, LLC's (collectively "Red Roof Defendants") joinder in the Motion to Exclude Melanie J. Bliss, Ph.D. [Doc. 164; Doc. 219]. Upon consideration of the arguments presented, the applicable law, and all appropriate matters of record, the motion to exclude is DENIED.
This motion was originally filed by Defendant Varahi Hotels, LLC. (Doc. 164). Later, the Red Roof Defendants filed their Motion for Joinder (Doc. 219) in the motion, specifically adopting and incorporating all of Varahi's arguments. As Varahi has now indicated that it has reached a settlement with Plaintiffs which involves Plaintiffs' dismissal of their claims against Varahi, the Court will allow the Red Roof Defendant's to proceed with the motion to exclude as if it were solely their motion.
I. BACKGROUND
Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 bring claims against the Red Roof Defendants for damages resulting from their alleged trafficking at certain Red Roof hotels. All four Plaintiffs allege the Red Roof Defendants: (1) violated the Georgia Racketeer Influenced and Corrupt Organizations Act ("RICO"), O.C.G.A § 16-14-4(a) and (c), and are subject to civil liability for their operation of the hotel(s); (2) violated the Trafficking Victims Protection Reauthorization Act ("TVPRA"), 18 U.S.C. § 1595, and are subject to civil liability for their operation of the hotel(s); and (3) were negligent in failing to keep the hotel(s) safe and secure.
In their respective complaints, Plaintiffs allege that they have suffered repeated acts of sexual violence over the course of months or even years at the Red Roof hotels and that they were forced or coerced into a life of sexual servitude. As part of their case at trial, Plaintiffs intend to introduce the testimony of Melanie J. Bliss, Ph.D., a psychologist who they claim is an expert in sexual trauma. According to Plaintiffs, Dr. Bliss's testimony will help the jury understand how sexual trauma, in general, may affect a victim's brain, memories, and reactions to the trauma—in essence, to explain how victims of sexual trauma are easily manipulated and why they may be unwilling or unable to report the sexual abuse. (See Doc. 241 at 3, 10-13). In their motion to exclude Dr. Bliss's testimony, the Red Roof Defendants argue that that Dr. Bliss's proffered expert testimony fails to meet the admissibility requirements under Federal Rules of Evidence 702 and 403 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) because her opinions are not relevant or reliable and because her opinions are cumulative of other evidence.
II. LEGAL STANDARDS
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
Fed. R. Evid. 702. Thus, the admissibility inquiry under Rule 702 requires district courts to consider three basic factors: (1) qualifications; (2) reliability; and (3) relevance. Moore v. Intuitive Surgical, Inc., 995 F.3d 839, 850-51 (11th Cir. 2021). The burden of laying the proper foundation for the admission of expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 n.10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).(a) 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;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert reliably applied the principles and methods to the facts of the case.
Federal Rule of Evidence 403 provides that:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.Fed. R. Evid. 403. Because Rule 403 provides the district court with discretion to exclude evidence that is both relevant and probative, Rule 403 exclusion "is an extraordinary remedy which should be used sparingly." Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1069 (2014) (citation omitted). When assessing a Rule 403 motion, "courts must look at the evidence in a light most favorable to admission, maximizing its probative value and minimizing its undue prejudicial impact." Id. (citation omitted).
III. DISCUSSION
A. Rule 702 Analysis
1. Dr. Bliss's qualifications as an expert on the effects of sexual trauma
Dr. Bliss has a Ph.D. in clinical psychology from Georgia State University, where she wrote a dissertation addressing women's responses to abuse, and in particular, sexual abuse. (Doc. 161 at 159). She completed a one-year residency with a specialization on women and trauma. (Id.) According to her report, Dr. Bliss specializes in working with people who have experienced trauma, specifically intimate partner violence and sexual assault. She is an adjunct faculty member in the Department of Psychiatry at the Emory University School of Medicine. She was a consultant and former board member for the Georgia Network to End Sexual Assault, was certified as a Peace Officer Guest Trainer in the area of sexual assault, and for the past 14 years she has conducted multiple workshops a year to law enforcement on the neurobiology of trauma and effects of sexual assault. She has also served as a consultant for Partnership Against Domestic Violence, as well as a consultant to EMSTAR Research, Inc. where she evaluated a residential treatment facility for sex offenders and perpetrators. (Id. at 156). Her other relevant experience includes: (1) conducting "over 50 diagnostic interviews at Metro State Women's Prison with incarcerated women about their experiences with abuse"; (2) conducting "clinical research and interventions with abused women and adolescents at Grady Memorial Hospital"; and (3) serving "as a therapist at a Child Advocacy Center" where she helped sexual assault survivors. (Id.) Lastly, Dr. Bliss has previously provided expert testimony in numerous court cases involving sexual assault. (Id. at 162-63). Based on the foregoing, the Court finds that Plaintiffs have clearly established by a preponderance of the evidence that Dr. Bliss is qualified as an expert on the effects of sexual trauma.
The Court notes that the Red Roof Defendants, in seeking to exclude Dr. Bliss's testimony, do not challenge her qualifications on the topic of sexual assault and its effects, nor do they claim that she is unqualified to provide the opinions expressed in her report. Instead, the Red Roof Defendants argue that Dr. Bliss's inexperience with a specific category of sexual assault victims—victims of sex trafficking—should disqualify her from testifying in this case. Specifically, they argue that Dr. Bliss should not be permitted to testify specifically about sex trafficking because she hasn't worked with known sex trafficking victims or traffickers. (See Doc. 164-1 at 17-18). But Dr. Bliss does not purport to be an expert on sex trafficking and, according to the proffer, she would not be providing testimony about sex trafficking specifically. As Dr. Bliss explained in her deposition, she would be testifying regarding the effects of sexual assault in general. (See Doc. 161 at 8 (Depo. transcript pp. 23-24)). Thus, the Red Roof Defendants' qualification arguments appear to be more of a challenge to relevance.
Because this case involves allegations of repeated acts of sexual assault and its effects, and because the Red Roof Defendants do not challenge Dr. Bliss's qualifications in that area, this Court has no basis to exclude her testimony based on any purported lack of qualifications.
2. Reliability of Dr. Bliss's opinions regarding the effects of sexual trauma
The Red Roof Defendants challenge the reliability of Dr. Bliss's opinions, faulting her "methodology." Although the principles set out in Daubert apply in determining the reliability of a pyschologist's expert testimony, "social science research, theories, and opinions cannot have the exactness of hard science methodologies, and peer review, publication, error rate, etc. are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert." Carrizosa v. Chiquita Brands Int'l, Inc., 47 F.4th 1278, 1318 (11th Cir. 2022). Thus, in the context of a social science such as psychology, where experimental conditions and controls are not available, "other indicia of reliability are considered under Daubert, including professional experience, education, training, and observations." Id. (citation and internal quotation marks omitted).
The Red Roof Defendants do not challenge Dr. Bliss's education, training, or professional experience, which themselves have an indicia of reliability. Instead, they contend that Dr. Bliss's opinion testimony is unreliable because she did not seek out "contrary scientific literature" to rebut her own opinions. (See Doc. 164-1 at 13-14). The Red Roof Defendants rely on In re Rezulin Products Liab. Litig., 369 F. Supp. 2d 398, 425 (S.D.N.Y. 2005) and Abarca v. Franklin County Water Dist., 761 F. Supp. 2d 1007 (E.D. Cal. 2011) to support their argument that an expert's failure to account for contrary evidence in their methodology makes the expert's opinion unreliable. However, neither of the cited cases involved expert testimony in the social science context. Rather, both of these cases were toxic tort cases in which the reliability of the experts' opinions could be determined by reference to the typical hard science methodologies such as scientific experiments, testing, potential rates of error in results obtained, peer review, etc. Moreover, in both cases, the issue was not that the experts failed to seek out contrary evidence; rather, the issue was that the experts had such evidence and simply ignored it. Unlike moving parties in Rezulin and Abarca, the Red Roof Defendants do not identify any contrary evidence that Dr. Bliss purportedly ignored. They simply contend that, because Dr. Bliss did not identify any literature that undermines her opinions, "[o]ne must assume that the data would not support her [opinions]." [Doc. 164-1 at 6]. The Red Roof Defendants cite no authority to support such an assumption. The Court finds that the Red Roof Defendants are free to question Dr. Bliss about evidence they hope might undermine her conclusions—assuming they find any—but the mere possibility of contrary evidence does not warrant excluding her testimony altogether.
In sum, Dr. Bliss based her opinions on her experience, education, and training, none of which the Red Roof Defendants challenge. The Court notes that other courts across the country have admitted testimony about the dynamics of sexual assault based on these indicia of reliability. See, e.g., United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006) (collecting cases). The fact that Dr. Bliss also reviewed literature to locate additional support for what she knew to be true merely shows that her opinions are more reliable, not less. Therefore, the Court finds that Dr. Bliss's opinions are sufficiently reliable for the purposes of admissibility under Rule 702.
3. Relevancy of Dr. Bliss's opinions regarding the effects of sexual trauma
"[E]xpert testimony is relevant if it will assist the trier of fact to understand the evidence or to determine a fact at issue in the case." Ahuja v. Cumberland Mall, 821 F. Supp. 2d 1317, 1322 (N.D. Ga. 2011) (citing Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309 (11th Cir. 1999)). As noted above, this case involves allegations that Plaintiffs were forced or coerced into a life of sexual servitude where they endured repeated acts of sexual abuse at the Red Roof hotels. Plaintiffs seek to introduce Dr. Bliss's testimony to help the jury understand how the repetitive, sexually traumatic events may have impacted Plaintiffs. Upon review of the report, the Court finds that Dr. Bliss's opinions on the effects of repetitive sexual abuse would be helpful in understanding such matters as: why Plaintiffs may have been more vulnerable and easily manipulated by the traffickers; why Plaintiffs remained in the abusive environment with their traffickers despite the appearance of opportunities to escape; why they may have been reluctant to seek help and failed to report the sexual abuse sooner; and why the Plaintiffs previously had (and may continue to have) difficulty recalling details of their traumatic past. Most, if not all, of these issues would have a direct impact on the jury's consideration of the Plaintiffs' credibility as victim witnesses. Yet, a thorough understanding of the effects of repetitive sexual trauma is beyond the kin of the average juror or layperson. Thus, Dr. Bliss's expert opinion would assist the jury by allowing them to understand and consider these effects when determining the Plaintiffs' credibility. Therefore, the Court finds that Dr. Bliss' opinions regarding the effects of sexual trauma are relevant and helpful in this case.
In so ruling, the Court is not swayed by the Red Roof Defendants' argument that Dr. Bliss's opinion testimony is not relevant because she did not consider the Plaintiff's specific allegations when forming her opinions. But there is no requirement under Rule 702 that an expert testify regarding the specific facts in the case. To the contrary, the Eleventh Circuit has held that "Rule 702 allows an expert witness to opine about a complicated matter without firsthand knowledge of the facts of the case." United States v. Lewis, 762 F. App'x 786, 797 (11th Cir. 2019) (citation omitted) (expert on sexual trauma dynamics could testify about the "psychological and emotional relationships that prostitutes form with pimps" without applying this knowledge to the facts of the case), vacated on other grounds, — U.S. —, 140 S. Ct. 613, 205 L.Ed.2d 380 (2019). Courts in other circuits have reached similar conclusions. See United States v. Charles, 691 F. App'x 367, 370 (9th Cir. 2017) (holding that an expert witness can explain "the general dynamics of sexual assault situations" because it provided jury with information "about which many jurors would not have sufficient background knowledge," without delving into the specific facts of the case); United States v. Anderson, 560 F.3d 275, 281-82 (5th Cir. 2009) (affirming admission of expert testimony on the dynamics of pimps and prostitutes in general).
For all the above reasons, the Court finds that Dr. Bliss's opinions meet the qualifications, reliability, and relevance requirements for admissibility of expert testimony under Rule 702.
B. Rule 403 Analysis
The Red Roof Defendants argue that Dr. Bliss's expert testimony should be excluded under Rule 403 because her testimony does not address issues that are central to the case, her testimony poses a significant risk of undue prejudice, and her testimony would be cumulative of other evidence. (See Doc. 164-1 at 19-21). The Court shall address each argument in turn.
First, the Red Roof Defendants challenge the probative value of Dr. Bliss's opinions on the basis that her testimony would not address the central issues of the case—specifically, whether sex trafficking occurred on the Red Roof properties and whether the Red Rood Defendants had actual or constructive knowledge of it. However, to establish their claims, Plaintiffs' will likely have to rely heavily on their own testimony and, as discussed above, Dr. Bliss's testimony would provide the jury with valuable information to consider when assessing the credibility of the Plaintiffs' claims. Thus, the Court finds that Dr. Bliss's testimony has probative value. Defendants' argument on this point is without merit.
Second, the Red Roof Defendants argue that Dr. Bliss's testimony poses a significant risk of undue prejudice because they are concerned that Dr. Bliss will "try to 'get inside the heads' of the Plaintiffs" and tell the jury "this is how it always happens" or "this is how victims always react." (Doc. 164-1 at 20). But, according to the proffer, Dr. Bliss does not intend to testify about Plaintiffs specifically or that sexual assault survivors always react the same way. Instead, she intends to explain to the jury that certain reactions to repeated sexual trauma—including faulty memories and returning to the abuser, which may seem unusual to a lay jury—are actually quite common. The Red Roof Defendants have not attempted to explain why this type of testimony would be unfairly prejudicial. While the Court notes that this type of testimony may be adverse to the Red Roof Defendants because it could make it more difficult for them to challenge Plaintiffs' credibility on the basis of faulty memories, their failure to report the sexual abuse, or their failure to leave their traffickers, "[t]here is a difference between unfairly prejudicial evidence, which may be excluded under Rule 403, and evidence that is simply adverse to an opposing party. Rule 403 calls for the exclusion of the former, not the latter." Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1285 (11th Cir. 2015) (citation and internal quotation marks omitted). The Court finds that Dr. Bliss's testimony would not be unfairly prejudicial.
Lastly, the Red Roof Defendants argue that Dr. Bliss's testimony would be needlessly cumulative of another witness for the Plaintiffs, Anique Whitmore, who was the counselor that interviewed the Plaintiffs and has formed opinions about them. (See Doc. 164-1 at 20-21). According to Plaintiffs, Ms. Whitmore is a sex trafficking expert who will testify about the common dynamics specifically between sex traffickers and their victims based on her extensive experience working with sex trafficking victims. She will also provide testimony about the specific sex trafficking that each Plaintiff has endured. (See Doc. 241 at 25).
In support of their cumulative argument, the Red Roof Defendants identify two areas of purported overlap in the testimony of the two experts: "experienced trauma and the effect on memory." (See Doc. 164-1 at 20). While it may be true that both experts would touch on these topics, the Court notes that "[t]estimony on the same topic by different experts . . . is not needlessly cumulative where the experts will testify from different professional perspectives." Sampson v. Carnival Corp., No. 15-24339-Civ-KING/TORRES, 2016 WL 11547658, at *2 (S.D. Fla. Dec. 12, 2016) (citations omitted); accord Griffin v. Coffee County, 623 F.Supp.3d 1365, 1379 (S.D. Ga. Aug. 19, 2022) (denying motion to exclude expert testimony as cumulative because the experts have "differences in their perspective and experiences"). According to Plaintiffs, Dr. Bliss and Ms. Whitmore have had different professional experiences and bring different expertise to the table. Dr. Bliss derives her expertise regarding the effects of sexual assaults from her doctoral education as well as her training and experience in treating sexual assault survivors. Ms. Whitmore, on the other hand, derives her expertise from her work specifically with sex trafficking victims. Thus, while Dr. Bliss will testify as to the common dynamics in sexual assault cases generally, Ms. Whitmore will testify as to the dynamics that are specific to sex trafficking. Moreover, unlike Dr. Bliss, Ms. Whitmore interviewed each Plaintiff and can thus apply her expertise to the specific facts of the case. These differences show that the testimony of these two experts would not be needlessly cumulative.
The Court acknowledges that, prior to trial, the issue of whether an expert's testimony may be cumulative is largely speculative. That is why challenges to cumulative testimony are best made at trial "so the Court can ascertain whether the evidence is cumulative of other admissible evidence in the proper context." Griffin, 623 F.Supp.3d at 1379; accord Sampson, 2016 WL 11547658, at *3 (collecting cases). At this stage of the proceedings, however, the Court finds that Dr. Bliss's testimony does not appear to be so cumulative that it should be excluded under Rule 403.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the Motion to Exclude Melanie J. Bliss, Ph.D. [Doc. 164], as joined and adopted by Defendants Red Roof Inns, Inc., FMW RRI NC, LLC, Red Roof Franchising, LLC, RRI West Management, LLC, and RRI III, LLC [Doc. 219], is DENIED.
SO ORDERED, this 21st day of August, 2023.