The plaintiffs in a recent education case moved to exclude Defendant’s testimony of an unlicensed psychologist as an expert on autism. The School District argued that she was an unlicensed and subject to possible disciplinary action by the California Board of Psychology; therefore, she lacked the credentials to testify as an expert witness. Further, Defendant School District contended that her testimony would constitute the commission of a misdemeanor offense.
U.S. District JudgeKimberly J. Mueller wrote that the admissibility of expert testimony is a question within the trial court’s discretion. The court plays a “gatekeeping” role to ensure all expert testimony, scientific or otherwise, is both relevant and reliable. As part of this role, the court must evaluate a witness’s “knowledge, skill, experience, training, or education” to determine if she qualifies as an expert. Rule 702 “contemplates a broad conception of expert qualifications . . . and [is] intended to embrace more than a narrow definition of qualified expert,” she explained, citing a Ninth Circuit case.
Judge Mueller explained that, although it’s a factor to be considered, licensure in the discipline or specialty that’s in the subject of expert opinion isn’t a requirement under the Federal Rules of Evidence.
In this case, the fact that the proffered autism expert was an unlicensed psychologist didn’t necessarily determine her qualifications as an expert witness. She had extensive education in subject matters relevant to the case and held a B.A. in Clinical Psychology, a M.A. in Education, and a Ph.D. in Child Development. The expert was also the recipient of numerous honors and awards in her field, a member of the International Society for Autism Research and the Bay Area Autism Consortium, a lecturer and adjunct professor, the author of various books and scholarly articles on autism and related issues, and had testified as an expert witness on the subject of autism in many other cases.
In light of these credentials, Judge Mueller found there wasn’t a sufficient basis to find that the expert lacked the “knowledge, skill, experience, training, or education” so as to disqualify her as an autism expert prior to trial.
Plaintiffs argued that with the autism expert’s admission in a prior case, she wasn’t “a forensic psychologist nor a licensed psychologist, and as such is not qualified to evaluate, diagnose or treat anyone for a psychiatric condition such as autism, nor to independently carry out a forensic examination” provided additional support for disqualification. But the judge wasn’t persuaded. In the next line of the report plaintiffs referenced, the judge noted that the expert went on to state:
“However, this examiner has a broad and deep understanding of research on how children and adults with autism think and see the world differently from non-autistic individuals, has contributed to such research, and has served in a supervising, teaching, and administrative role as a director of autism clinics for the past 35 years at Stanford, UCSF, and now ACNC.”
Plaintiffs argued that the autism expert was “careful to limit her role” in that evaluation to “avoid engaging in the unlicensed practice of psychology.” However, in this case, she “openly express[ed] opinions about the minor Plaintiffs’ diagnoses and purports to evaluate the psychological and behavioral impact of [the teacher’s] classroom on the children.”
The judge found that at this point, the court needed only determine whether the expert possessed the experience necessary to render her testimony credible and helpful to the jury. As to that question, there was no basis to preliminarily find the expert unqualified to testify as an autism expert.
Judge Mueller also said she didn’t place dispositive weight on the expert’s potential prospective violation of a cease and desist order issued by the State Board of Psychology. Because licensure isn’t a requirement for an expert’s qualification, the judge reasoned that “the mere potential for disciplinary action by a licensing board does not per se disqualify that expert.”
Instead, any disciplinary action goes to credibility rather than qualification. The parties disputed whether the expert’s testimony would in fact constitute a Board violation, but the judge was unwilling to preliminarily preclude testimony on speculative grounds.
Nonetheless, assuming a proper foundation was laid, Plaintiffs could seek to challenge the expert’s credibility during cross examination at trial.
As to this issue, the motion to exclude the autism expert’s testimony was denied.
Beecham v. Roseville City Sch. Dist.,2018 U.S. Dist. LEXIS 163451 (E.D. Cal. September 24, 2018)