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Doe v. Hartford School District

United States District Court, D. Vermont

February 26, 2018

JOHN DOE NO. 143, by and through his parents and natural guardians, MOTHER DOE and FATHER DOE, and MOTHER DOE and FATHER DOE, individually, Plaintiffs,


          Christina Reiss, District Judge United States District Court

         Plaintiff John Doe No. 143 ("Plaintiff John Doe"), by and through his parents and natural guardians, Mother Doe and Father Doe, and Mother Doe and Father Doe, as individuals (collectively, "Plaintiffs"), bring this action alleging negligence and loss of parental consortium against Defendant Hartford School District. Plaintiffs allege that another student "repeatedly sexually harassed" Plaintiff John Doe in Kindergarten at the Ottauquechee School in Quechee, Vermont and that this sexual harassment continued after Mother Doe and Father Doe reported it to Defendant's Superintendent and the school's principal, among others. (Doc. 1 at 1.)

         Pending before the court is Plaintiffs' motion to strike the report and testimony of expert witness Dr. Fabian M. Saleh, M.D. to the extent he renders opinions on the credibility or reliability of the statements of fact witnesses. (Doc. 74.) Plaintiffs filed their motion on September 15, 2017. Defendant opposes the motion, filing a response on September 29, 2017. Plaintiffs replied on October 25, 2017 and Defendant filed a sur-reply on October 27, 2017.

         Arick W. Fudali, Esq., Jeff M. Herman, Esq., Jerome F. O'Neill, Esq., Navah C. Spero, Esq., and Stuart S. Mermelstein, Esq. represent Plaintiffs. Richard J. Windish, Esq. represents Defendant.

         I. Factual Background.

         Defendant disclosed Dr. Saleh as a psychiatric expert pursuant to Fed.R.Civ.P. 26(a)(2). An assistant clinical professor of psychiatry at Harvard Medical School, Dr. Saleh is the director of the Sexual Violence Prevention and Risk Management Programs at Beth Israel Deaconess Medical Center in Boston, Massachusetts and was the founding director of the Sexual Behaviors Clinic in Worcester, Massachusetts. His work includes forensic and diagnostic assessments of sex offenders, as well as children and adolescents who are victims of sexual abuse.

         For this case, Dr. Saleh performed a Fed.R.Civ.P. 35 examination of Plaintiff John Doe and produced a Forensic Evaluation ("the Expert Report") which Defendant provided to Plaintiffs on August 10, 2017. On the first page of the Expert Report, Dr. Saleh listed the questions Defendant's counsel asked him to consider, including: "1. Are the statements of the Plaintiff John Doe reliable in which he claims [fellow Kindergartener B.M.] touched him in an inappropriate and sexually abusive manner? (Please address the various allegations, including 'butt touching, ' attempted penis touching, and alleged anal penetration)." (Doc. 82-2 at 1.)

         In offering his opinion, Dr. Saleh stated:

[I]f one were to take Plaintiff John Doe's self-report of "sexual abuse" at face value and consider the allegations in a sheer vacuum, somebody might conclude that Plaintiff John Doe did indeed [fall] victim to the advances of fellow Kindergartener B.M., resulting in repeated acts of sexual violence and digital anal penetration. In my professional opinion, however, this case not only begs for findings of fact, but also should not be analyzed in a vacuum. In fact, in view of the inconsistent and, at times, contradictory accounts, of Plaintiff John Doe and Kindergartner B.M., lack of reliable eye-witness accounts, and/or physical evidence, it is very difficult, if not impossible, to draw any meaningful conclusions as to the timeline and the nature of what actually happen[ed], if anything, between these two kindergarteners.

Id. at 9 (footnote omitted).

         Dr. Saleh also addressed the possibility of manipulation of a child's account of suspected abuse and the unreliability that may result:

With that in mind, it is also of utmost importance to remember, when analyzing what has already been disclosed and "confessed" to, that a child of Plaintiff John Doe's and Kindergartner B.M.'s age [is] susceptible to inaccurately reporting or misinterpreting events, yet not maliciously or deliberately. This is especially important to be considered in a case where "improper" and suggestive interview techniques have been used. For example, repetition of questions by a professional or a concern[ed] parent; leading questions; peer pressure; selective reinforcement; and manipulation of one's emotional tone to direct an interview can result in contaminated or even false disclosures and/or confessions. Along the same lines, it is important to remember that preconceived views about certain events (e.g., what one prematurely may think took place between a child and an alleged perpetrator) can result in contamination and thus inaccurate and outright false disclosures. It is also important to consider the following facts when analyzing a child victim's disclosure and/or a child's confession: 1) children may present with a change in initial memory trace (e.g., through suggestion); 2) children may have difficulty distinguishing between actual and imagined events; and 3) children may have an impaired/deficient mastery of time. Lastly, it is important to be mindful of the fact that people involved in a child abuse case may for various conscious or subconscious reasons fake, embellish, minimize, or just withhold clinical or otherwise relevant information.

Id. at 9-10 (footnote omitted). Based on these concerns, Dr. Saleh could not "conclude - let alone to a reasonable degree of medical certainty - whether something of an inappropriate or violent nature happened between Plaintiff John Doe and Kindergartener" B.M. Id. at 10.

         On September 27, 2017, Plaintiffs deposed Dr. Saleh who testified "[t]hat it's impossible to draw any conclusion even close to [Plaintiff John Doe's] statements being reliable. They have been inconsistent[.] ... He was all over with regard to what may or may not have happened between him and [B.M]." (Doc. 93-4 at 3.) ...

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