Law Offices of James
Office of Counsel
Attorney for Faith J. Myers, Respondent
IN THE SUPERIOR COURT FOR THE STATE OF
JUDICIAL DISTRICT, AT
In The Matter of the Hospitalization )
FAITH J. MYERS )
) Case No. 3AN 03-277 P/S
Memorandum in Support of Motion in Limine to Exclude Psychiatric Testimony
Respondent has moved to exclude the psychiatric testimony of Dr. Robert Hanowell. This is not done lightly, but Dr. Hanowell’s deposition testimony demonstrates that he can not permissibly allowed to testify as an expert witness in this matter.
v. Merrill Dow Pharmaceuticals, Inc., 509
Equally important, the Daubert court held that
trial judges must perform a “gate keeping role,” which requires them to “screen
[ ] proffered expert testimony.”
In order to qualify as “scientific evidence” [under FRE 702], an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation . . . i.e., “good ground,” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability.
The burden of showing the reliability of challenged expert evidence is on the proponent of such evidence. See, e.g., Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 note 10 (9th Circuit), cert denied 516 U.S. 869 (1995).
The Daubert ruling was expanded and refined in Kumho
Tire Company, Limited v. Carmichel, 526 U.S. 137 (1999). Therein, the Supreme Court answered two
important questions concerning the scope and application of Daubert. First, the court held that the trial
court’s “gate keeping” role applies to all expert testimony, whether it is
based on scientific knowledge or on experience.
In State v. Coon, 974 P.2d 386 (
(1) The relevance of the proposed testimony under ARE 401;
(2) The qualifications of the expert under ARE 702(a);
(3) The reliability of the opinions under ARE 702(a);
(4) The factual basis is of the type reasonably relied on under ARE 703;
(5) The probative value is not outweighed by unfair prejudice.
Coon, 974 P.2d at 393.
The court also adopted, and vigorously defended, the “gate keeping” function that Daubert assigns to trial judges. Coon, 974 P.2d at 395-97. Thus, the court “required trial courts to insure that scientific evidence is both relevant and reliable.” Coon, 974 P.2d at 390. In performing the gate keeping role, trial courts should consider the four factors identified in Daubert:
(1) Whether the proffered scientific theory or technique can be (and has been) empirically tested (i.e. whether the scientific method is falsifiable and refutable);
(2) Whether the theory or technique has been subject to peer review and publication;
(3) Whether the known or potential error rate of the theory or technique is acceptable, and whether the existence and maintenance of standards controls the techniques operations; and
(4) Whether the theory or technique has attained general acceptance.
Coon, 974 P.2d at 395.
The Alaska Supreme Court also noted that since Daubert,
federal courts “are giving rigorous consideration to the reliability of
scientific evidence,” before admitting
it. Coon, 974 P.2d at 397 and
66. This view is consistent with the
U.S. Supreme Court’s own assessment, i.e., Daubert and its progeny grant
the trial court broad “discretion to choose among reasonable means of excluding
expertise that is fausse and science that is junky.” Kumho Tire, 526
In order to prevail on its petition to commit the Respondent, among the elements the state must prove is that the Respondent is a danger to herself or others. This is both required under AS 47.30.730 and the unequivocal Opinions of the United States Supreme Court as what is required to pass United States Constitutional Muster. At page 25, line 14 of his Deposition, a copy of which is attached here, Dr. Holloway admits “We are not able to specifically predict [violence in the future].
United States Supreme Court has issued clear guidance as to when it is
Constitutionally permissible to confine someone for anything other than the
commission of a crime. In Foucha v.Louisiana, 504
Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others. Proof beyond a reasonable doubt was not required, but proof by preponderance of the evidence fell short of satisfying due process. [footnote omitted]
Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982). "It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Jones, supra, 463 U.S., at 361, 103 S.Ct., at 3048 (internal quotation marks omitted). We have always been careful not to "minimize the importance and fundamental nature" of the individual's right to liberty. Salerno, supra, 481 U.S., at 750, 107 S.Ct., at 2103.
In the very recent case of Kansas v. Crane, 534 U.S. 407, 409, 122 S.Ct. 867, 869 (2002), the US Supreme Court explicitly re-affirmed the necessity of compliance with these due process standards as follows:
"[W]e have consistently upheld such involuntary commitment statutes" when (1) "the confinement takes place pursuant to proper procedures and evidentiary standards," (2) there is a finding of "dangerousness either to one's self or to others," and (3) proof of dangerousness is "coupled ... with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality.' "
Very important in Crane, is the that the U.S. Constitution requires specific admissible evidence proving both mental illness and dangerousness and a finding by the court as to both of them. And, as provided in Foucha, supra., this proof must be by clear and convincing evidence to pass constitutional muster. Dr. Hanowell’s admission that he can not predict dangerousness precludes him from giving expert testimony on this element. See, page 25, line 14 of the deposition.
Implicit in the proceeding to have the court decide whether the Respondent can competently choose to refuse medication is that, if not, the court must substitute its judgment, aided by whatever competent evidence might exist. However, as set forth in the Motion to Dismiss (although not phrased quite this way), the question isn’t whether the Respondent’s decision is the best one, but whether the benefits of the proposed course are so overwhelming as compared to the known effects, possible side effects and risks that no person in their right mind would refuse to take the medication. Dr. Hanowell has stated that he doesn’t follow the professional literature and studies that one would need to in order to be able to provide any expert testimony to the court about the risks and rewards of such a course of treatment under the Daubert, Kumho Tire, and Coon cases. See, pp 30-31 of the attached Deposition.
In addition to the above mentioned facts which require Dr. Hanowell not be allowed to testify as to dangerousness, nor allowed to testify as to his opinion of why the course of medication he is suggesting should be administered against the Respondent’s express wishes, Respondent respectfully suggests Mr. Hanowell can not be allowed to testify as an expert witness in this case because he is unable to provide the types of information required by Daubert, Kumho Tire, and Coon as well as his failure to comply with a properly issued Subpoena Duces Tecum. In both cases, these are not just what might be called nit picky technical requirements, but they go to the very heart of the process for determining whether a proffered expert witness may be allowed to testify. Dr. Hanowell was ordered to bring:
1. Your curriculum vitae.
2. The Respondent's entire medical chart and all other records or other documents pertaining to the Respondent, including any and all records relating to treatment team meetings and decisions.
3. Your written report prepared and signed by you to be presented at the hearing. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by you in forming your opinions; any exhibits to be used as a summary of or support for the opinions; your qualifications as an expert witness, including a list of all publications authored by you within the preceding ten years; and a listing of any other cases in which you have testified at a civil commitment or court approval of administration of psychotropic medication hearing or by deposition within the preceding four years.
4. All documents you reviewed, considered or relied upon in arriving at your conclusions, or any combination thereof, including without limitation, any and all of the following:
· Medical, psychiatric or other types of treatises, texts, manuals, studies, or other materials or authorities that you used in arriving at your opinion.
· Reports prepared by you or others.
· Results of all tests undertaken by you or others.
· All of your time records relating to time spent on this matter.
· All other records and documents pertaining to the Respondent, including without limitation, any notes.
· All correspondence, communications or other documents generated or prepared by you or received by you pertaining to the Respondent, this matter and your forming an opinion or opinions in this matter.
· All notes, memoranda, photographs, video tapes or other documents relating to inspections and observations made by you.
5. The substance of all communications to and from the Respondent.
See, Exhibit 1. He did not do so. See Hanowell Deposition pp. 4, line 12 to page 8, line 25; page 10 passim,
It is apparent from these parts of the deposition, continuing for some time that Dr. Kletti, the Medical Director was unable or unwilling to refrain from inappropriate behavior and even repeated defied repeated requests that he leave the room for failing to do so. See, e.g., pp. 12-13. 14, lines 8 to 20, page 15, lines 5-10, page 16, lines 4 and 11-14. Dr. Kletti was telling Dr. Hanowell what his answers should be and Dr. Hanowell was following those instructions. See, eg Hanowell Deposition page 10, lines 19-22, and page 16, lines 11 -14. Dr. Kletti should be instructed this behavior is totally inappropriate and any further exhibitions of such behavior is grounds for a contempt of court citation. Moreover, Respondent respectfully suggests this answering for the deponent by the Medical Director alone fatally taints Dr. Hanowell's testimony as an objective expert.
Most substantively, Dr. Hanowell did not provide the scientific sources as directed by the Subpoena Duces Tecum (Item 4, first bullet, above), upon which he relied in forming his opinions and indicated he would not be able to do so. Respondent respectfully suggests this mandates exclusion of Dr. Hanowell's testimony.
For the foregoing reasons, Respondent respectfully suggests her Motion in Limine is well take; her Motion in Limine must therefore be granted and Dr. Hanowell can not be allowed to testify in this hearing.
Law Offices of James B. Gottstein
James B. Gottstein
 As suggested in the Motion to Dismiss this same date, it is possible the Alaska Supreme Court will demand an even higher standard under the Alaska Constitution when it is called upon to answer the question.
 The United States Supreme Court does not permit a person to be committed because that person is mentally ill and only “gravely disabled” but not dangerous. Thus, only if "gravely disabled" means dangerous under AS 47.30. is it constitutional.
Standards for commitment to mental institutions are constitutional only
if they require a finding of dangerousness to others or to self. Suzuki v. Quisenberry, supra, at
1121-1126; Doremus v. Farrell, 407
F.Supp. 509, 514- 15 (D.Neb.1975). See also O'Connor
v. Donaldson, 422
Doe v. Gallinot, 486 F. Supp. 983 (C.D. California 1979). See, also, Stamus v. Leonhardt, 494 F. Supp. 439, 451 ( (S.D. Iowa 1976), citing Doremus v. Farrell, 407 F.Supp. 509 (D. Neb. 1975):
Due process and equal protection require that the standards for commitment must be (a) that the person is mentally ill and poses a serious threat of substantial harm to himself or to others; and (b) that this threat of harm has been evidenced by a recent overt act or threat. The threat of harm to oneself may be through neglect or inability to care for oneself.
The State has admitted that the allegation of gravely disabled in the Petition for Commitment is not one that the Respondent is a danger to herself. See, attached Deposition at pp 25 line 15 to page 26, line 9.
 It should be noted here that Dr. Hanowell admitted that the Respondent understood the benefits and risks of the medication and the sole reason that he was of the opinion she was incompetent to make the decision was because she disagreed with him. See, pages 21, line 3 to page22, line 12 of the Deposition.
 There was some floundering around about not having the Doctor's CV and other records and the hospital's ultimate refusal to provide it to the court reporter. (The court can note that exhibit 2 to the Deposition is missing. That is because the hospital refused to provide it after agreeing on the record to doing so. See, Hanowell deposition page 3, line 11 and page 10, lines 14-25.