Demaj v. Sakaj
A court may consider whether an expert is qualified and has been adequately disclosed, when it rules on a motion to exclude the expert's testimony. In 2009, the court appointed Dr. David Mantell to conduct an evaluation of the minor children in an international child abduction case that involves the "mature child" and "well-settled" child defenses. The petitioner proceeded to hire his own expert psychologist, Dr. Benjamin Garber, to provide testimony about the so-called "well-settled" defense and whether the respondent "coached," or wrongly influenced, the testimony of the minor children. The respondent filed a motion in limine to preclude the testimony of Dr. Benjamin Garber and claimed that Dr. Garber lacked sufficient data to form an opinion. The defendant also argued that Dr. Garber was not properly disclosed as an expert with respect to the "well-settled" defense, because Garber's report merely critiqued Dr. Mantell's report. The court found that Dr. Garber's 2012 opinion criticized Dr. Mantell's alleged failure to consider competing hypotheses and whether the respondent scripted the children's claims. Apparently, Dr. Garber claimed that the 8-year-old child's use of the word "glared" constituted evidence of coaching, because it is an adult word that is not normally used by 8-year-old children. "Because coaching may be one factor to be considered by the Court in evaluating the `Mature Child' Defense," wrote the court, "Petitioner is entitled to have Dr. Garber testify on this single topic." Dr. Garber may not offer an opinion about the ultimate issue of whether the minor children were coached. The respondent is entitled to conduct a 90-minute deposition of Dr. Garber. The court granted in part and denied in part the motion to exclude Dr. Garber's testimony.