United States District Court, D. Vermont
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,
HARTFORD SCHOOL DISTRICT, Defendant.
OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO
STRIKE THE REPORT AND TESTIMONY OF EXPERT WITNESS DR. FABIAN
M. SALEH TO THE EXTENT HE RENDERS OPINIONS ON THE CREDIBILITY
OR RELIABILITY OF THE STATEMENTS OF FACT WITNESSES (Doc.
Christina Reiss, District Judge United States District Court
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.)
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.
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
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.
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.)
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).
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.
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.) ...