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Attorney for Faith J. Myers, Respondent

 

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT, AT ANCHORAGE

In The Matter of the Hospitalization       )

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                                                of         )

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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.

Standards for Admision of Expert Testimoney

In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-89 (1993), the Supreme Court held that the traditional Freye test[1], governing the admissibility of expert scientific testimony, had been superceded by the enactment of the Federal Rules of Evidence.  Under Daubert, the standard of admissibility is “a flexible one” which focuses on whether the proffered testimony has sufficient “scientific validity to assist the trier of fact” in understanding the evidence or determining a material issue in the case.  Daubert, 509 U.S. at 594-95.

            Equally important, the Daubert court held that trial judges must perform a “gate keeping role,” which requires them to “screen [ ] proffered expert testimony.”  Id. at 589, 597.  Under the rules, the trial judge must  insure that any and all scientific testimony or evidence admitted is not only relevant, but also reliable.  Id.  The court further explained:

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.

 

Id. At 590.

 

            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 (9^th 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.  Kumho, 526 U.S. at 152.  Second, the four reliability factors identified in Daubert are neither necessarily applicable, nor exclusive in conducting the reliability inquiry.  Kumho, 526 U.S. at 141-42.

            In State v. Coon, 974 P.2d 386 (Alaska 1999), the Alaska Supreme Court adopted the Daubert standards for purposes of applying ARE 702 and 703.  Coon abandoned the Alaska court’s longstanding approval of the Frye test.  Coon, 974 P.2d, 391, 392-94.  The court found that pursuant to Evidence Rule 104(a), it is the responsibility of the trial judge to determine the following before admitting contested expert testimony:

(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 U.S. at 158-59 (Scalia, J, concurring).

Dr. Holloway Has Admitted he Does Not Have the Expertise to Establish Whether the Respondent Meets Commitment Criteria

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.[2]  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].

The 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 U.S. 71,  112 S.Ct. 1780 (1992), the court ruled on the Constitutional limits of the states’ right to confine someone for mental illness (civil commitment).

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]

504 U.S. at 75-6, 112 S.Ct. at 1783 

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.

Id. 504 U.S. at 80, 112 S.Ct. at 1785 

            The United States Supreme Court then went on to hold that due process requires the state to show that the person is both mentally ill and dangerous.[3]

[I]n civil commitment proceedings the State must establish the grounds of insanity and dangerousness permitting confinement by clear and convincing evidence

Id., 504 U.S. at 86, 112 S.Ct. at 1788.

            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.

Dr. Hanowell’s Opinion Regarding the Benefits and Risks of Psychiatric Medications Can Not Be Accepted

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.

Procedural Reasons Mandating Exclusion of Dr. Hanowell’s Testimony

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,[4] 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,[5]  

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.

Conclusion

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.

            DATED:  February 28, 2003.

 

                                                            Law Offices of James B. Gottstein

 

 

 

                                                            By:                                                                              

                                                                        James B. Gottstein

                                                                        ABA # 7811100