Psychology Expert Witness Testimony Regarding Trauma Resulting from Alleged Racial Discrimination Limited

Plaintiffs and Proposed Class Representatives Quinton Burns and K.B (collectively “Burns”) brought this action individually and on behalf of all similarly situated Black people against Defendants SeaWorld Parks & Entertainment, Inc. and SeaWorld Parks & Entertainment, LLC on account of the alleged racial discrimination that they suffered at Defendants’ property, Sesame Place Philadelphia (“Sesame Place”).

Plaintiffs—Black and Hispanic parents and their children—allege that, when they visited the park, costumed character performers refused to interact with them in favor of similarly situated white children. Plaintiff retained, Michael L. Lindsey, to opine on “the extent to which racial discrimination, experienced by Plaintiffs, psychologically and traumatically impacted them” as well as “the therapeutic needs Plaintiffs will have over the course of their respective lifetimes.”

Lindsey interviewed the named Plaintiffs and some of their family members and compiled reports of his observations. He conducted “each” of these interviews “exactly” according to an interview protocol that asked questions of both the children and parents in the room. The extensive script consisting of questions directed at the children who were allegedly discriminated against and their parents was prepared based on the criteria in the Diagnostic and Statistics Manual – 5 (“DSM-5”), the widely used taxonomy of mental health
disorders. The DSM-5 contains diagnostic criteria for post-traumatic stress disorder (“PTSD”), which include the presence of certain “intrusion symptoms,” such as recurrent “distressing memories” or “[d]issociative reactions (e.g., flashbacks), and “persistent avoidance of stimuli associated with the traumatic event(s),” which can manifest as “efforts to avoid activities, places, or physical reminders” of the event, “[m]arkedly diminished interest or participation in significant activities,” or “[s]ocially withdrawn behavior.”

Lindsey prepared reports about each family after conducting nine interviews of up to two hours each. Lindsey concluded that racism should be conceptualized as a toxic stressor associated with internalizing and externalizing behaviors, anger, conduct problems, and delinquent behaviors in adolescents and preadolescents or even should be considered a form of violence. Lindsey opined that the behavior exhibited by SeaWorld’s costumed characters by shunning and ignoring children of color was a representative example of institutional racism. Lindsey categorized the same as an adverse childhood experience (ACE) and recommended trauma-informed care for the traumatic experiences created by SeaWorld. Lindsey opined that SeaWorld was required to compensate the Plaintiffs for their immediate harm, allocate funds for the collateral mental and physical consequences of such experiences, and pay punitive damages to substantially and significantly discourage other similarly situated institutions from perpetuating such experiences.

SeaWorld filed a motion to strike the report and testimony of Plaintiffs’ expert, Michael Lindsey.

Psychology Expert Witness

Michael L. Lindsey is a lecturer in the Psychology Department at Southern Methodist University in Dallas, Texas and the President of Nestor Consultants, Inc., which offers multiple services, including psychological evaluations and diversity trainings. He received a juris doctor from Villanova Law School and a PhD in Clinical Psychology from Hahnemann University. He has taught classes on, among other topics, developmental psychology, child psychology, research methods, and the role of ethics and diversity in psychology. He is a member of the American Psychological Association’s (“APA”) Law and Society Division and is a member of the planning committee for the International Academy of Law and Mental Health.

Discussion by the Court

SeaWorld initially argued that, because Lindsey was not a licensed psychologist and did not maintain a clinical practice, he was not qualified to deliver his opinions as a matter of law. The Court held that Lindsey’s lack of a professional license was not dispositive. And while Lindsey did not have a clinical practice, he had extensive experience both lecturing on and researching issues related to developmental psychology and consulting on the precise type of psychological issues relevant to his reports.

SeaWorld maintained that Lindsey’s reports were not based on “any methodology . . . let alone a methodology” that satisfied Daubert and its progeny. Sea World contended that Lindsey failed to show a causal relationship between the alleged racial discrimination Plaintiffs suffered at Sesame Place and the trauma he says they have suffered. SeaWorld also found fault with Lindsey’s decision to interview the Plaintiff families in a group, without ever speaking with the children alone. Finally, SeaWorld took issue with Lindsey’s nearly identical recommendations that the Plaintiff Parents receive therapy.

Lindsey’s reports contained three separate findings, the last of which drove his recommendations that the Plaintiffs receive therapy and, especially, punitive damages:

1. His professional experience and the scientific literature showed that, in general, ACEs “may cause trauma.”
2. When ACEs in general “do result in trauma,” they should be treated with trauma-informed care.
3. Based on Lindsey’s “professional opinion,” SeaWorld had created traumatic experiences for the identified family members.

Implicit in his final finding was: (1) that what allegedly happened to the Plaintiff Children at Sesame Place constituted ACEs; (2) that those ACEs were the sort, in general, that caused trauma; and (3) that those individual ACEs, in fact, caused trauma for the Plaintiff Children.

The Court noted that the APA made it clear that Lindsey’s chosen method of assessment, a clinical interview, was a widely accepted tool and altough his script might not have constituted a “structured diagnostic interview” per the APA’s handbook, this technique, although subjective, can still be sufficiently scientifically grounded to be reliable considering the interview protocol included several questions to both sets of interviewees aimed at understanding what happened to the Plaintiff Children at Sesame Place, how it made them feel at the time, and how they have processed the events since, all of which would help Lindsey evaluate whether they constituted ACEs.

Next, SeaWorld’s argued that Lindsey “neither provided nor followed any identifiable framework to assess which adverse experiences result in ‘trauma.’” The Court noted the lack of a reliable method to determine whether the ACEs that he identified caused trauma in the specific instances he was tasked with examining. Clinical interviews like the ones Lindsey conducted remained, in his view, the primary basis for determining whether an ACE had caused trauma, even though SeaWorld identified multiple peer-reviewed tests that can be used to measure trauma in both adults and children. However, it was seen that Lindsey’s interview protocol, albeit nonstandard, contained questions that plainly tracked the diagnostic criteria for PTSD contained in the DSM-5, which SeaWorld conceded was “the authoritative work on mental disorders. The Court held that it constituted a scientifically grounded means by which he could assess, in combination with his experience and review of the relevant scientific literature, whether the ACEs that the Plaintiff Children experienced are the type that would cause trauma.

The Court noted that Lindsey’s findings shifted in scope from the general to the individual, concluding that “SeaWorld had created traumatic experiences for these identified family members” and concluded that Lindsey’s reports were not based in the scientific method in this respect. Although Lindsey’s interview protocol did contain plenty of questions that would have allowed him to elicit the Plaintiff Children’s emotions and how they then related to amusement parks, it did not contain any mechanism for isolating the causes of those sentiments. Lindsey failed to ask the Plaintiff Parents about their children’s psychosocial history and he admitted in his deposition that he did not review Plaintiffs’ videos of some of the interactions between the children and the costumed characters, which could have helped him better understand the severity of the ACEs being described. Nor can the scientific literature he cited bridge the gap at this step because these studies discuss the potentially traumatic impact of ACEs that involve racism, not the actual traumatic nature of the ACEs that Lindsey identified.  Henceforth, Lindsey was not permitted to testify about whether the ACEs he identified caused the symptoms of trauma that he observed.

He could testify that, based on his scientifically based interview protocol, review of relevant scientific literature, and years of professional experience, the alleged discriminatory events at Sesame Place were ACEs likely to cause trauma. He could also testify that the Plaintiff Children’s symptoms were consistent with trauma and that many interviewees and their family members could benefit from therapy. However, he couldn’t solely attribute the observed symptoms to the alleged discrimination at Sesame Place.

SeaWorld pointed out that Lindsey failed to “control for ‘suggestibility’—a cognitive bias concept in which a child’s response’s may be influenced or contaminated by what parents or older siblings said about the events in issue or their feelings about said events when it interviewed the Parent and Child Plaintiffs together. However, the Court determined that such concern implicated Lindsey’s credibility and was the province of the jury. Moreover, despite making essentially the same recommendation for every Plaintiff Parent, whether interviewed or not, Lindsey’s failure to engage in any “differentiation or . . . individualized analysis” did not warrant exclusion considering Lindsey’s reports consisted of unique narratives of the interviews he conducted, including the responses from both the child and parent interviewees that informed his conclusions that what happened to Plaintiffs at Sesame Place constituted an ACE, in addition to the materially identical recommendations.

The Court, citing UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir. 2020), held that Daubert requires that an expert’s testimony must be “‘sufficiently tied to the facts of the case,’ so that it ‘fits’ the dispute and will assist the trier of fact.” SeaWorld argued that the necessary fit was missing there because Lindsey stopped short of diagnosing any Plaintiff with a condition listed in the DSM-5. The Court held that the question of whether therapy (with or without a DSM-5 diagnosis) would be beneficial was relevant to questions that the jury would have to evaluate at trial. However, Lindsey’s reports would not warrant exclusion given the “liberal” nature of the “fit” inquiry under Daubert.

SeaWorld also identified multiple statements in Lindsey’s reports that it argued were otherwise inadmissible as a matter of law. Lindsey’s discussion of institutional racism included a legal conclusion that SeaWorld argued must be stricken: “SeaWorld, by their behaviors of shunning and ignoring children of color, are representative examples of” individual or institutional racism. SeaWorld argued that the same must happen to Lindsey’s discussion of damages, where he concluded that “SeaWorld must pay Plaintiffs for their immediate harm, allocate funds for the collateral mental and physical consequences of these experiences, and pay punitive damages to substantially and significantly discourage other similarly situated institutions from perpetuating such experiences.” The Court held that the definition of “institutional racism” that Lindsey tagged SeaWorld with there—including a description of “institutional discrimination” as something that “targeted specific, easily stereotyped, generalizable attributes of individuals”—implied that the company acted with a degree volition that steered his conclusion too close to an ultimate issue in this case. The Court also held that opining on the appropriateness of the punitive damages was a job for the fact finder, not an expert witness.

Held

Defendants’ Motion was granted in that Michael Lindsey was precluded from testifying on: (1) whether Defendants, its employees, or its agents were the cause of the trauma symptoms that he observed during his clinical interviews of Plaintiffs; (2) whether the alleged incidents of racial discrimination at Sesame Place Philadelphia constitute intentional discrimination; or, (3) whether Plaintiffs are entitled to punitive damages.  Lindsey’s opinions on these issues were stricken by the Court but Defendants’ motion to strike the testimony of Lindsey was denied in all other respects.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways:

SeaWorld initially contested Lindsey’s qualifications, citing his lack of a professional license and clinical practice. However, the Court determined that his extensive experience and expertise were sufficient, regardless of these factors. Additionally, SeaWorld challenged the methodology of Lindsey’s reports, arguing they lacked scientific basis. Despite this, the Court found his interview protocol and review of literature to be acceptable. Lindsey’s findings regarding trauma and therapy recommendations were upheld by the Court, although he couldn’t solely attribute symptoms to alleged discrimination. Concerns were raised about Lindsey’s use of the concept of “suggestibility” and the lack of individualized analysis, but the Court considered these matters of credibility for the jury to decide. The Court applied the Daubert standard to assess the admissibility of Lindsey’s testimony, allowing most of his reports to be admitted while ruling out some statements as inadmissible legal conclusions. SeaWorld’s objections regarding certain statements in Lindsey’s reports were upheld by the Court, affirming that determination of punitive damages is the role of the fact finder, not an expert witness. Overall, the text highlights the intricate process of evaluating expert testimony, with the Court meticulously scrutinizing Lindsey’s qualifications, methodology, and the admissibility of his reports and testimony.

Case Details:

Case Caption:	Burns V. Seaworld Parks & Entertainment, Inc., Et Al
Docket Number:	2:22cv2941
Court:	United States District Court, Pennsylvania Eastern
Citation:	2024 U.S. Dist. LEXIS 29633
Order Date:	February 21, 2024