Economics Expert Witness Allowed to Opine on Educational Loss
Posted on January 2, 2025 by Expert Witness Profiler
Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) brought intentional discrimination claims against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.
Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.
Plaintiffs filed a motion to preclude the opinions of Dr. Howard Shane, an anticipated expert witness for the District who will opine on the “effectiveness and appropriateness of using the method known as Spelling to Communicate (S2C) with Alex LePape.”
In response, the District filed a motion to preclude the opinions of Chad Staller, an anticipated expert witness for Plaintiffs who will opine on the damages that Plaintiffs incurred for Alex’s past and future educational services and the future costs for Alex’s psychiatric treatment, and all evidence of educational loss.
Speech-Language Pathology Expert Witness
Howard Shane has been a practicing and licensed Speech Language Pathologist for 49 years. The vast majority of his professional life has been spent working with individuals who are non-speaking as a result of autism, cerebral palsy, or intellectual impairment. He holds a Master’s degree and a Doctoral degree in Speech Pathology with a minor in Developmental Psychology and Audiology. For his doctoral work, he specialized in neurogenic speech problems. Moreover, he completed a Doctoral Fellowship at the Mayo Clinic in Rochester, Minnesota, where he worked with patients who experienced severe motor speech disorders, including Apraxia of Speech.
Economics Expert Witness
Chad L. Staller JD, MBA, MAC, CVA serves as the president of the Center for Forensic Economic Studies and holds extensive experience collaborating with both plaintiff and defense counsel across various civil cases. His expertise involves quantifying losses sustained by diverse plaintiff profiles, including union members, government employees, business proprietors, and injured children. Staller specializes in evaluating claims related to employment discrimination, encompassing calculations of back-pay, front-pay damages, and lost benefits. Additionally, he frequently provides consultation on commercial issues, analyzing claims associated with lost profits and business interruptions. Staller has a substantial record of testifying in jury trials, bench trials, and arbitrations within state and federal court settings.
Discussion by the Court
Chad Staller
Motion to Preclude the Expert Testimony of Chad Staller and All Testimony and Evidence of Educational Loss
The District contended that because it has been judicially determined that the District provided Alex with a free appropriate public education (“FAPE”) and is not entitled to recover compensatory education or tuition reimbursement under the Individuals with Disabilities Education Act (“IDEA”), Plaintiffs cannot recover educational loss damages under the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act, which renders Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403.
Basically, evidence of educational loss is relevant to establish the specific compensatory damages that Plaintiffs seek. Accordingly, the Court denied the District’s motion with respect to evidence of Plaintiffs’ educational loss, including Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred.
Staller’s testimony on future medical care damages
To begin with, the District argued that Plaintiffs are not entitled to recovery of emotional distress damages under the ADA or the Rehabilitation Act, which rendered Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403.
The Supreme Court held in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 142 S. Ct. 1562, 212 L. Ed. 2d 552 (2022), that emotional distress damages are not recoverable in private discrimination actions brought under the Rehabilitation Act.
The Court is not convinced by Plaintiffs’ argument that the non-educational loss damages that they seek—payment of Alex’s future psychiatric treatment expenses—are not emotional distress damages and, therefore, are still recoverable.
The vast majority of district courts confronted with this issue in the wake of Cummings have held that mental health treatment costs constitute emotional distress damages because they stem from emotional distress as the underlying injury.
Therefore, the Court found that Plaintiffs are precluded from recovering Alex’s future psychiatric treatment expenses, as these fall into the category of emotional distress damages that are not recoverable under the ADA and the Rehabilitation Act.
The Court granted the District’s motion with respect to Staller’s opinions as to the projected cost of future psychiatric treatment for Alex.
Howard Shane
Plaintiffs argued that because Shane’s opinions are not based on any analysis of “Alex’s communication with a letter board and communication partner,” they are irrelevant under Federal Rule of Evidence 401. Alternatively, Plaintiffs argued for the preclusion of Shane’s opinions under Federal Rule of Evidence 403 because these opinions “would invade the province of the jury, offering an opinion as to the credibility of [Alex’s] testimony with the letter board.”
The Court held that Shane’s opinions are relevant to the material factual issues of the efficacy of a letterboard and communication partner for Alex, the efficacy of other communication supports that the District provided to Alex, and the District’s knowledge when it refused to permit Alex to use S2C at school at least in part due to the perceived lack of supporting scientific research.
Moreover, Plaintiffs’ contention that Shane did not base his opinions on any “personal interactions” with Alex or investigations of “authorship with Alex’s use of the letter board” is not entirely accurate, as Shane indicates in his affirmative report that he compared the “content of [Alex’s] work produced independently with [his] work produced with the assistance of a facilitator.”
Also, considering that Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex, the Court found that Plaintiffs will not be unfairly prejudiced, and the jury will not be confused or misled, by the introduction of Shane’s contrasting opinions.
However, the Court precluded Shane’s opinions to the extent they relate to human rights violations, including violations of the United Nations Conventions on the Rights of Persons with Disabilities, because such opinions are impermissible legal conclusions and unfairly prejudicial and confusing to the jury.
Held
- The Court granted in part and denied in part Plaintiffs’ motion in limine to preclude opinions of Howard Shane.
- The Court granted in part and denied in part Defendant’s motion in limine to preclude the testimony of Chad Staller.
Key Takeaway:
- The Court did not find that the probative value of Shane’s opinions is substantially outweighed by the dangers of unfair prejudice because the Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex.
- Also, Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred is relevant to establish the specific compensatory damages that Plaintiffs seek and are entitled to recover for their ADA and Rehabilitation Act claims.
Case Details:
| Case Caption: | J.L. Et Al V. Lower Merion School District |
| Docket Number: | 2:20cv1416 |
| Court: | United States District Court, Pennsylvania Eastern |
| Order Date: | December 30, 2024 |
