Psychology Expert Witness’ Opinion on Parental Gatekeeping Excluded Due to Procedural Violations
Posted on January 6, 2025 by Expert Witness Profiler
On October 25, 2024, Petitioner Prasanna Sankaranarayanan filed a petition seeking the return of the parties’ minor son, S.A., to his habitual residence. The petition claims that Respondent Dhivya Sashidhar unlawfully took S.A. from Singapore to the United States on October 14, 2024. On November 1, 2024, Sashidhar was served with the summons and complaint in Redmond, Washington.
Hague Convention cases are typically expedited, with a six-week resolution period recommended. In this case, the Court held a telephone conference with the parties on November 22, 2024, and scheduled an evidentiary hearing for January 6, 2025.
After the conference, the Court issued a scheduling order that outlined deadlines for filings and disclosures, as proposed by the parties. However, the parties later disagreed on whether the deadlines applied to both sides.
On December 27, 2024, Sashidhar filed a motion to exclude Petitioner’s psychology expert witness, Peter Favaro. Sashidhar argued that Sankaranarayanan had violated the scheduling order by disclosing the expert witness after the deadlines for such disclosures had passed.
Psychology Expert Witness
Peter Favaro is a psychologist licensed in the state of New York and has been in private practice since 1986. His area of expertise is psychology within court-related matters. Since 1986, he has been privately hired or court-appointed to thousands of cases to provide evaluation and expert opinion in matters involving domestic violence, custody disputes, and child abuse. He also offers court-related services such as supervised visitation, family mediation, anger management, family therapy, civility training, and parenting coordination. Additionally, he has been appointed or hired on cases involving the 1980 Hague Child Abduction Convention.
Discussion by the Court
A. The Parties’ Arguments
1. Respondent’s Position
In its motion, the Respondent sought to exclude the testimony and report of Peter Favaro, Petitioner’s psychology expert witness.
On December 10, 2024, Petitioner’s counsel emailed Respondent’s counsel to reveal that they had retained Favaro as a rebuttal expert. However, Petitioner had not disclosed Favaro in their initial filings. Following this, Respondent arranged for the child to meet with Favaro on three consecutive days for an evaluation.
Respondent argued that Favaro should be considered an affirmative expert, not just a rebuttal expert, as Petitioner claimed. Respondent pointed to several factors to support this argument:
- The report’s title did not suggest it was a rebuttal report
- The content included definitive conclusions, and
- The opinions went beyond simply addressing the Respondent’s expert reports.
In fact, according to the Respondent, Favaro’s report claimed that the Respondent may have been exerting undue influence over the child and potentially mistreating the child.
Additionally, Respondent asserted that the disclosure of Favaro’s report on December 23, 2024, was untimely and caused significant prejudice. The late disclosure left Respondent with insufficient time to retain a rebuttal expert to challenge Favaro’s conclusions. Furthermore, Respondent was unable to depose Favaro before the Court’s deposition deadline, further hindering its ability to respond effectively.
2. Petitioner’s Position
Petitioner argued that they complied with the Court’s scheduling order, as the dates and language were meant for Respondent to disclose experts and serve expert reports. Petitioner opposed the motion to exclude, stating that the order did not set specific dates for Petitioner’s affirmative or rebuttal experts. Therefore, Petitioner claimed they had not missed any deadlines.
Petitioner further maintained that Favaro was solely a rebuttal expert, a child forensic psychologist retained to address Respondent’s affirmative defenses of grave risk and mature child. Petitioner emphasized that Favaro’s report was properly disclosed on December 23, 2024.
B. Analysis
1. The Scheduling Order
The Court needed to determine whether the expert disclosure deadline applied to both parties. The parties interpreted the scheduling order differently. The order required Respondent to serve expert disclosures by December 2, 2024, and initial expert reports by December 9, 2024. However, the order did not specify deadlines for Petitioner’s affirmative expert disclosures. It only mentioned that both parties were to serve rebuttal expert reports by December 20, 2024.
The minute entry accompanying the order outlined the schedule, including expert disclosures, initial reports, and rebuttal reports, but it did not address the timing for Petitioner’s disclosures. The entry and the order were silent about rebuttal expert disclosure.
Petitioner’s attempt to distinguish between the scheduling order’s text and the minute entry was viewed as an attempt at gamesmanship. The Court found the minute entry to be an integral part of the order. If Petitioner found any confusion, they could have sought clarification instead of using the discrepancy for tactical advantage. The Court found the order’s deadlines to be clear and applicable to both parties.
Petitioner’s claim that they did not know if experts were needed after December 2, 2024, was deemed disingenuous. During the November telephone conference, Petitioner’s counsel repeatedly discussed experts. Respondent’s counsel had also indicated that an expert had been retained and was ready for disclosure.
The Court concluded that the expert disclosure deadline applied equally to both parties. Petitioner was aware of Respondent’s expert well before the disclosure deadline, as discussed in the telephone conference. The Court then considered the disclosures for both affirmative and rebuttal experts.
1. Affirmative Expert Testimony
Although Petitioner argued that all of the testimony was purely rebuttal, the Court was not fully convinced. The 20-page expert report was detailed and appeared to offer opinions and conclusions beyond those necessary for rebutting the affirmative defenses. For instance, Favaro’s opinion that Respondent’s “parental gatekeeping” amounted to maltreatment of the child did not address the grave risk or mature child defenses. As a result, the Court determined that the scope of Favaro’s report went beyond rebuttal testimony. Therefore, Petitioner had untimely disclosed Favaro as an affirmative expert witness.
2. Rebuttal Expert Testimony
Since the scheduling order did not specify deadlines for disclosing rebuttal experts, the Court considered the timeframes typically outlined in the Federal Rules of Civil Procedure. According to these Federal Rule of Civil Procedure 26(a)(2)(D)(ii), a rebuttal expert may be disclosed within 30 days after the other party’s expert disclosure, provided the evidence is intended solely to contradict or rebut the other party’s evidence on the same subject. However, this guideline offered limited guidance in this case due to the tight deadlines in expedited Hague Petition cases. Given the silence in the scheduling order and the inapplicability of the Federal Rules, the Court turned to other authorities to resolve the issue.
Persuasive cases from this District and elsewhere suggested that the party with the burden of proof, in this case, the party asserting an affirmative defense, should disclose its expert testimony before the opposing party discloses an expert to rebut it. The Court referenced several cases supporting this approach.
Based on this guidance and the lack of clarity in the scheduling order, the Court concluded that Petitioner’s disclosure of Favaro on December 10, 2024, shortly after Respondent served affirmative expert reports, was appropriate. Therefore, the Court determined that Petitioner had timely disclosed Favaro as a rebuttal expert.
3. Sanctions
Petitioner has failed to demonstrate that disclosure for any affirmative testimony was substantially justified or harmless. To the extent Favaro’s opinions exceed the scope of Respondent’s affirmative defenses, the late disclosure is harmful to Respondent’s ability to prepare for the evidentiary hearing. The Court will not infer that the violation is harmless from Respondent not deposing one expert to be definitive that Respondent would not have deposed Favaro if properly disclosed as an affirmative expert witness.
Similarly, in light of the lengthy discussions about experts during the telephone conference, Petitioner cannot reasonably maintain that the knowledge about experts did not arise until December 2, 2024. Therefore, the Court concluded that sanctions are warranted because Petitioner has not shown that the discovery violation was substantially justified or harmless.
The Court observed that Favaro’s testimony is important to resolving this matter on the merits, but the Court still finds that sanctions are warranted in this matter. Accordingly, the Court will limit Dr. Favaro’s testimony and opinions in the report solely to rebuttal opinions. “[A] rebuttal expert cannot offer evidence that does not contradict or rebut another expert’s disclosure merely because [the expert] also has also offered some proper rebuttal [evidence].”
Held
The Court granted in part and denied in part Respondent’s motion to exclude Petitioner’s expert witness Peter Favaro’s testimony.
It excludes any of Favaro’s testimony or portions of the report that exceed the scope of rebuttal testimony for Respondent’s affirmative defense.
The Court directed Petitioner to provide Respondent an articulation of Favaro’s rebuttal testimony by January 4, 2025 at 12:00 pm (PST).
Key Takeaway:
Portions of Peter Favaro’s report exceeded the scope of permissible rebuttal testimony and the Court deemed the disclosure of his affirmative expert opinions untimely. While the Court accepted Favaro’s rebuttal testimony, it excluded his opinions on matters unrelated to the grave risk or mature child affirmative defenses—such as allegations of “parental gatekeeping” and maltreatment.
Case Details:
| Case caption: | Sankaranarayanan V. Sashidhar |
| Docket Number: | 2:24cv1745 |
| Court: | United States District Court for the Western District of Washington |
| Dated: | January 3, 2025 |
