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Bauch v. Richland County Children Services

United States District Court, N.D. Ohio, Eastern Division

March 2, 2017

MONTY BAUCH, individually and as natural parent and next friend of O.B. his minor child, et al., Plaintiffs,


          CHRISTOPHER A. BOYKO United States District Judge

         This 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.

         I. BACKGROUND

         This 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.

         Family 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.

         Following 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 - Professional Malpractice.

         In 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.


         Fed.R.Civ.P. 56 Standard of Review

         Summary 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.

         This 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).

         Expert Testimony

         Fed.R.Evid. 702 and Daubert challenges

         Rule 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 methods; 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 prejudicial effect.

         A trial 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.

         Because 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.

         Dr. 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 ...

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