United States District Court, N.D. Ohio, Eastern Division
MONTY BAUCH, individually and as natural parent and next friend of O.B. his minor child, et al., Plaintiffs,
RICHLAND COUNTY CHILDREN SERVICES, et al., Defendants.
OPINION AND ORDER
CHRISTOPHER A. BOYKO United States District Judge
matter comes before the Court upon the Motion (ECF DKT #200)
of Defendants, Family Life Counseling and Psychiatric
Services, Steven Burggraf and Debora Van Romer, for Summary
Judgment. At the same time, the Court will also consider the
Motion (ECF DKT #203) of Plaintiffs, Monty Bauch and O.B.,
for Summary Judgment against Defendants, Family Life
Counseling & Psychiatric Services, Steven Burggraf and
Debra (sic) Van Romer and Motion to Strike Expert
Report of Farshid Afsarifard, Ph.D.
lawsuit arises out of the alleged wrongful removal of a
four-year old child, O.B., from her father's (Monty
Bauch's) home in January of 2011 by Richland County
Children Services. O.B. was placed in foster care for nearly
three years and referred to Family Life Counseling &
Psychiatric Services (“Family Life”) for sexual
abuse counseling which lasted nearly two years. Plaintiffs
allege that they suffered significant injury because O.B. was
treated for sexual abuse when there was no evidence of sexual
abuse, no proper diagnosis of sexual abuse and no court
finding nor adjudication of sexual abuse.
Life is a 501(C)(3) non-profit Ohio corporation with a
principal place of business located in the City of Mansfield,
County of Richland, State of Ohio. Steven Burggraf is the
Executive Director of Family Life. Debora Van Romer is
employed by Family Life as a Licensed Professional Counselor
- Clinical Residence.
the Stipulated Dismissal (ECF DKT #216) of a number of claims
in Plaintiffs' Second Amended Complaint (ECF DKT #123),
the remaining claims against the Family Life Defendants are
Count Six - Intentional Infliction of Emotional Distress;
Count Nine - Negligent Training, Supervision and Retention;
Count Twelve - Loss of Companionship; and Count Fourteen -
addition to the Cross Motions for Summary Judgment on the
merits of Plaintiffs' claims, Plaintiffs also move to
strike the report and testimony of Defendants' expert,
Dr. Farshid Afsarifard, because it is incomplete and because
he is not qualified to serve as an expert to opine on
Defendants' standard of care.
LAW AND ANALYSIS
56 Standard of Review
judgment shall be granted only if “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
See Fed.R.Civ.P. 56(a). The burden is on the moving
party to conclusively show no genuine issue of material fact
exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Lansing Dairy. Inc. v. Espy, 39 F.3d 1339,
1347 (6th Cir. 1994). The moving party must either point to
“particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show
“that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the
fact.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A
court considering a motion for summary judgment must view the
facts and all inferences in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Once the movant
presents evidence to meet its burden, the nonmoving party may
not rest on its pleadings, but must come forward with some
significant probative evidence to support its claim.
Celotex, 477 U.S. at 324; Lansing Dairy, 39
F.3d at 1347.
Court does not have the responsibility to search the record
sua sponte for genuine issues of material fact.
Betkerur v. Aultman Hospital Ass 'n., 78 F.3d
1079, 1087 (6th Cir. 1996); Guarino v. Brookfield
Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992).
The burden falls upon the nonmoving party to “designate
specific facts or evidence in dispute, ” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and
if the nonmoving party fails to make the necessary showing on
an element upon which it has the burden of proof, the moving
party is entitled to summary judgment. Celotex, 477
U.S. at 323. Whether summary judgment is appropriate depends
upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Amway Distributors Benefits Ass 'n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003)
(quoting Anderson, 477 U.S. at 251-52).
702 and Daubert challenges
702 of the Federal Rules of Evidence states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Rule 703 states:
An expert may base an opinion on facts or data in the case
that the expert has been made aware of or personally
observed. If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on
the subject, they need not be admissible for the opinion to
be admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them
to the jury only if their probative value in helping the jury
evaluate the opinion substantially outweighs their
judge must ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, (1993). The objective of Daubert's
“gatekeeping” function is to ensure the
reliability and relevancy of expert testimony. Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). The
Supreme Court has held this “gatekeeping”
obligation applies not only to scientific testimony, but to
all expert testimony. Id. at 147. Courts are not
required to hold a formal hearing on Daubert
challenges. See Greenwell v. Boatwright, 184 F.3d
492, 498 (6th Cir.1999). “[N]o matter how good”
experts' “credentials” may be, they are
“not permitted to speculate.” Tamraz v.
Lincoln Elec. Co., 620 F.3d 665, 671 (6th Cir. 2010),
quoting Goebel v. Denver & Rio Grande W.
R.R. Co., 215 F.3d 1083, 1088 (10th Cir.2000).
“The party offering expert testimony bears the burden
of establishing the foundational elements of admissibility by
a preponderance of proof.” Jones v.
Pramstaller, 874 F.Supp.2d 713, 718 (W.D. Mich. 2012),
citing Nelson v. Tennessee Gas Pipeline Co., 243
F.3d 244, 251 (6th Cir.2001). “Nevertheless, Rule
702's requirements are applied liberally, leaving
‘[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof [as]
the traditional and appropriate means of attacking shaky but
admissible evidence.'” Jones, 874
F.Supp.2d at 718, quoting Daubert, 509 U.S. at 596.
consideration of the proffered expert opinions is key to the
Court's analysis of Plaintiffs' Professional
Malpractice and Negligent Training claims, the Court will
address Plaintiffs' Motion to Strike first.
Farshid Afsarifard is a clinical and forensic psychologist
who has been retained by Defendants to opine on the care and
treatment of O.B. by the staff and employees of Family Life
Counseling and Psychiatric Services. On February 9, 2016, Dr.
Afsarifard prepared his report of ...