ASL Expert’s Testimony on Language Proficiency Excluded
Posted on June 4, 2025 by Expert Witness Profiler
Marie Rose Lennox Wing was deaf and used American Sign Language (“ASL”) to communicate. She passed away after three visits to Dignity Health hospitals over the course of a month.
Her estate and family members brought this lawsuit following her death. It argued that Dignity Health violated state and federal law by requiring family members interpret for Wing during her hospital visits.
Dignity Health’s expert Ann Witter-Merithew opined Wing had “some proficiency in reading and writing English” and could understand non-ASL communications occurring in a hospital setting. She further opined Dignity Health “was prepared to and perhaps offered [interpretive] services,” but Wing declined those services because she preferred to communicate through family members. Finally, Witter-Merithew opined on the dynamic between deaf parents, their children, and medical providers.
Plaintiffs’ Daubert motion challenges the admissibility of Witter-Merithew’s expert opinion under Rule 702 of the Federal Rules of Evidence.
American Sign Language Expert Witness
Ann Witter-Merithew spent over fifty years as an ASL translator and instructor. Her career involved working in complex environments, including interpreting for criminal and civil court cases, family and individual counseling, in-patient treatment programs and healthcare and rehabilitative treatments.
Witter-Merithew has experience interpreting for deaf parents in medical
settings. She also holds a bachelor of professional studies degree in linguistics and interpreting, a master’s degree in education, and multiple certifications.
Discussion by the Court
Qualifications
Plaintiffs challenged Witter-Merithew’s ability to review and interpret Wing’s medical records instead of her general qualifications as an expert on [ASL], ASL interpreting, and deaf culture.
The Court held that Witter-Merithew is a qualified expert based on her skill, training, education, and experience. She can use Wing’s medical records to the extent they allow her to render an opinion within her area of expertise.
To the extent Witter-Merithew lacked experience using medical records or normally does not rely on them when determining if interpretive services were offered, those arguments are best left for cross examination.
Sufficient Facts or Data
Plaintiffs argued that Witter-Merithew’s opinions largely relied “on a cursory review and interpretation of medical records” and demonstrated a lack of firsthand knowledge about the events leading to this lawsuit.
Plaintiffs pointed to portions of Witter-Merithew’s expert report about the use of Video Remote Interpreting (“VRI”) services with Wing. They argued that the report’s reasoning demonstrated that Witter-Merithew lacked “specific knowledge about the VRI system[s] used at [Dignity Health] facilities and [their] effectiveness for Wing.”
To begin with, Witter-Merithew relied on over 2,000 pages of medical records, filings in this case, policy manuals from Dignity Health, and “research and literature from the field of deafness and ASL-English interpreting” to create her opinions.
The Court held that there is no requirement for the experts to have firsthand knowledge about the events leading to a lawsuit.
Experts also can extrapolate on existing facts, such as medical records and the availability of VRI systems, to generate novel theories.
Reliable Principles and Methods
Plaintiffs argued that Witter-Merithew provided two unreliable opinions. The first concerned Wing’s language use and ability to communicate through mediums like ASL and written English. The second concerned family members interpreting for Wing.
The Ninth Circuit Court of Appeals provided unique factors to assess the reliability of experience-based expert testimony in United States V. Holguin, 51 F.4th 841, 855. The Holguin factors are “whether the expert’s experience supports [their] conclusion; whether the expert’s reasoning is circular, speculative, or otherwise flawed; or whether the expert’s reasoning is adequately explained.”
Language Use by Wing
Due to Wing’s death, Witter-Merithew could not conduct a formal language and communication assessment and could not interview Wing “about the quality and effectiveness of [services] she received” from Dignity Health. Witter-Merithew instead had to rely on “the reporting of others” to assess language usage and Wing’s ability to communicate.
Witter-Merithew opined Wing had “some” proficiency in speech, “some proficiency in reading and writing English,” and was fluent in ASL. She further opined Wing could understand non-ASL communications in a hospital setting.
By relying on medical records and family history, Witter-Merithew attempts to determine language proficiency based on third-party accounts of interactions with Wing. How others perceive Wing’s proficiency is relevant to the analysis. But it is too speculative to be the basis of Witter-Merithew’s opinion.
While Witter-Merithew’s experience allowed her to opine on Wing’s language proficiency, the Court held that Wing’s language proficiency depends on her ability to understand and communicate information.
Witter-Merithew’s opinion relied on medical records and family history to determine Wing’s non-verbal language proficiency. This deviates from the customary approach taken in ASL discrimination cases. ASL discrimination experts typically use scientific tests and methods to assess a hearing-impaired individual’s ability to communicate.
The different approach that Witter-Merithew used is not determinative of reliability. The Court held that language proficiency is not something readily discernible from experience alone. In other words, Witter-Merithew, as a knowledge and experience expert, must provide some methodology explaining how she applied her background to the facts of this case.
The Court found that Witter-Merithew did not make such a showing. Her opinion did not identify any knowledge or experience applicable to her analysis of this issue.
Language Brokering
Witter-Merithew did not interview Wing’s family members. She therefore did not opine on the family member’s ASL proficiency or “whether the means of communication family [members] used with Wing and hospital staff was effective.”
However, she concluded that family members interpreting for Wing was likely due to her personal preference, rather than a lack of resources from Dignity Health.
The Court held that Witter-Merithew’s opinions are reliable. Witter-Merithew can opine on language brokering and Wing’s preference for communicating through family members.
Relevance
Plaintiffs argued that Witter-Merithew’s “[o]pinion about the shortage of sign language interpreters” was irrelevant.
While Witter-Merithew opines there is a general shortage of ASL interpreters in the United States, the Court held that she did not explain how this applies to the facts of this case.
Indeed, Witter-Merithew testified at her deposition that the interpreter shortage did not relate to Dignity Health or its treatment of Wing. Relevance requires that expert testimony have underlying knowledge with “a valid connection to the pertinent inquiry.”
Prejudice
Plaintiffs argued that Witter-Merithew’s testimony and opinions about the use of family members for interpreting poses a significant risk of confusion and misleading jurors.
However, Witter-Merithew provided a valid rebuttal opinion that offered an alternative explanation to the opposing expert’s conclusion about Dignity Health refusing to provide interpretive services, forcing family members to interpret for Wing. The Court held that there is no risk of confusion and jurors will not be misled.
Held
The Court granted in part and denied in part the Plaintiffs’ Daubert Motion regarding the testimony of Defendant’s expert Anna Witter-Merithew.
Key Takeaway:
Witter-Merithew was required to explain why her knowledge or experience led her to believe certain facts demonstrated a certain level of proficiency from Wing. Witter-Merithew, by not connecting her knowledge or experience to the opinion, did not adequately explain why she believes Wing was fluent in ASL and somewhat proficient in other forms of non-verbal communication.
Case Details:
| Case Caption: | Macaraeg Et Al V. Dignity Health Et Al |
| Docket Number: | 2:23cv990 |
| Court Name: | United States District Court, Arizona |
| Order Date: | June 3, 2025 |
