Law Offices of James
B. Gottstein
Office of Counsel
907-274-7686 phone
907-274-9493 fax
Attorney for Faith J.
Myers, Respondent
IN THE SUPERIOR COURT FOR THE STATE OF
THIRD
JUDICIAL DISTRICT, AT
In The Matter of the
Hospitalization )
)
of )
)
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.
In Daubert
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.
Kumho, 526
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.[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
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
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.
The
[I]n civil commitment proceedings the State must establish
the grounds of insanity and dangerousness permitting confinement by clear and convincing evidence
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,[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.
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:
Law
Offices of James B. Gottstein
By:
James
B. Gottstein
[1] Freye
v.
[2] 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.
[3] 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.
[4] 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.
[5] 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.