Pliego v Hayes, 2014 WL 6674560 (W.D.Ky.)[Turkey] [Federal & State Judicial Remedies] [Expert Testimony][Privilege]

In Pliego v Hayes, 2014 WL 6674560 (W.D.Ky.)   Amanda Leigh Hayes and Mario Luis Gonzales Pliego were married on July 11, 2009 in Spain. Their child, ALG, was born in 2011 and was three years old. Hayes was a citizen of the United States, and Pliego was a citizen of Spain. Hayes  filed for divorce and custody in Kentucky, while Pliego filed for divorce and custody in Spain. In July 2012 they moved to Ankara, Turkey. Pliego was still living in Ankara. Hayes and Pliego agreed that Hayes and ALG would travel to Kentucky to visit extended family on April 6, 2014. The date of returnwas to be May 4, 2014. Instead, Hayes told Pliego that she would not be returning intended to keep ALG with her in Kentucky. Hayes and ALG were residing in Kentucky pending resolution of this action, subject to agreed conditions.  Pliego  filed motions seeking to exclude the testimony of two proposed witnesses: John Higgins, based on the standard for admissibility of expert testimony, and Ann Guler, based on the psychotherapist-privilege. 

The district court observed that the admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. Rule 702 provides:  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.  It pointed out that in Daubert v. Merrell Dow Pharmaceuticals, Inc.,"the Supreme Court established a general gatekeeping obligation for trial courts to exclude from trial expert testimony that is unreliable and irrelevant." In performing its gatekeeping function, the Court must determine whether evidence proffered under Rule 702 "both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. A key consideration is "whether the reasoning or methodology underlying the testimony is sufficiently valid." The Supreme Court advises that the inquiry is "a flexible one," and that "[t]he focus ... must be solely on principles and methodology, not on the conclusions they generate." A testifying expert must "employ[ ] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152.    While there is no "definitive checklist or test" for meeting the standard of Rule 702, Daubert laid out a number of factors that typically "bear on the inquiry," including: whether the theory or method in question "can be (and has been) tested," whether it "has been subjected to peer review and publication," whether it has a "known or potential rate of error," and whether the theory or technique enjoys "general acceptance" in the "relevant scientific community."Daubert, 509 U.S. at 593-94. Although Daubert addressed scientific evidence, the Supreme Court in Kumho Tire Co. v. Carmichael held that a trial court may consider the Daubert factors for all types of expert evidence.  Kumho Tire, 526 U.S. at 150. Thus, the Daubert factors are nonexhaustive and may not be pertinent in cases where "the relevant reliability concerns ... focus upon personal knowledge or
experience."

     John Higgins was a parish priest. He held a Certificate of Qualification in Social Work from the University of Central England in 1975 and a Social Science Ph. D. from the University of Birmingham, England from 2007.  He worked as a Guardian ad litem for the courts of Staffordshire from 1981-1990 and the county of Cumbria from 1991-2000.  Hayes regularly attended the St. Nicolas Church and taught Sunday School there for approximately two years, beginning in April 2011. During this time, she met with Higgins for pastoral support and spiritual guidance. Additionally, Hayes allegedly showed him bruises that she claimed resulted from domestic violence. Pliego objected to allowing Higgins testify as an expert in the following areas of proposed testimony: "1) general knowledge about bruising and domestic violence; 2) Turkish and American domestic law; and 3) diplomatic family relations." The Court found that Higgins did not have the relevant education or experience, medical or otherwise, needed to opine about the cause of the bruising, or to determine that the bruising could not have been self-inflicted. Nor had he demonstrated use of any reliable methodology for determining the cause of the bruises. Therefore, the Court did not permit Higgins to testify regarding the bruises that he saw, but not about their cause, and held the other issues in abeyance.

The Court observed that the Federal Rules of Evidence establish that "the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.R.Evid. 501. The United States Supreme Court recognizes a psychotherapist-patient privilege. Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996). Specifically, "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure...."   Dr. Guler  was a psychologist who counseled Hayes in Ankara, Turkey and telephonically after Hayes returned to Kentucky.  The two had at least 38 counseling sessions together. Pliego attended 14, starting in June 19, 2013, "for the purpose of addressing and remediating issues raised in Amanda's counseling regarding parent conflict and violence."   Pliego argued that Guler could not disclose communications made between her and her patients unless all involved patients waive the privilege.  He argued that he was a patient and that he participated fully in 14 sessions. The court observed that to be protected from compelled disclosure, a statement must be a confidential communication, between a licensed psychotherapist and her patient, made in the course of diagnosis or treatment.  Jaffee, 518 U.S. at 15. The Court found that Pliego was a participant in the sessions, and that his statements were made in the court of diagnosis or treatment. Therefore, the Court held that the psychotherapist-privilege applied to the statements Pliego made during counseling sessions with Gerber. It rejected Hayes argument that the privilege was waived because the litigation was between the parties who participated in the joint sessions. The Court held that Guler could testify as to statements made by Hayes, but not as to any statements made by Pliego.