David Scott Frank

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  09/30/13 Colorado

  United States District Court, D. Colorado A.R., by her next friend, Patricia A. Pacetti,
  Plaintiff, v. The Corporation of the President of the Church of Jesus Christ of Latter-
  Day Saints, a Utah corporation sole, also known as Mormon Church, and David Scott
  Frank, Defendants. Civil Action No. 12-cv-02197-RM-KLM

  “Filed September 30, 2013

  ORDER

  Kristen L. Mix , United States Magistrate Judge:

  *1 This matter is before the Court on Defendant Corporation of the President of The Church
  of Jesus Christ of Latter-day Saints' Daubert Motion to Exclude Paul Isenstadt as an Expert
  Witness [Docket No. 36; Filed May 15, 2013] (the “Motion”). On June 5, 2013, Plaintiff fileda
  Response [ 41] in opposition to the Motion. On June 21, 2013, Defendant Corporation of the
  President of The Church of Jesus Christ of Latter-day Saints (“LDS”) filed a Reply [ 44], The
  Court has reviewed the Motion, the Response, the Reply, the exhibits, the entire case file,
  and the applicable law, and is fully advised in the premises. For the reasons set forth below,
  the Motion [ 36] is GRANTED in part and DENIED in part.

  I. Factual Summary of the Case

  In the fall of 2009, at age fifteen, Plaintiff “A.R.”met Bryan Frank at school. A.R. Depo. [ 36-
  1] at 67:8-9. Bryan lived with his divorced father, Defendant David Scott Frank (“Frank”). Id.
  at 86:5-87:9. Defendant “Frank and Bryan were members of the Colorado Springs [Eighth]
  Ward of the LDS Church.” Motion [ 36] at 1 . Bryan soon invited A.R. to attend Sunday LDS
  worship services. A.R. Depo. [ 36-1] at 93:6-9. She first attended

  Sunday services on January 3, 2010, where she met Defendant Frank in person for the first
  time. Id. At 93:9-12. A.R. returned to the LDS church on subsequent Sundays, but she
  cannot remember how many times. Id. at 96:9-1 3.At that time, Defendant Frank was forty
  years old and taught Sunday school to thirteen- to fifteen-year-old students at the LDS
  Church, including A.R.

  Response [41] ^ 2. A.R. and Defendant Frank began to communicate frequently outside of
  LDS church functions. A.R. Depo. [ 36-1] at 136:5-24. A.R. testified in her deposition
  that they “texted” and called each other “thousands and thousands” of times between
  January 3, 2010, and June 30, 2010. Id. at 140:6-16. Most of these calls and texts occurred
  between 9:00 p.m. and 3:00 a.m. Id. At 140:19-22. Defendant Frank also sent A.R. emails
  and pictures of himself, gave her underwear as a gift, and would occasionally hug her in
  class. Response [ 41] U 3. One night in late March or April 2010 at about 1 :00 a.m., A.R.
  called Defendant Frank, invited him over to her house, and met him in Defendant Frank's
  car on the road in front of A.R. 's house. See Police Report [ 36- 2] at 1-2; A.R. Depo. [ 36-
  1] at 149:9-150:25. Although A.R. alleges that they only kissed at this first meeting, they
  subsequently met twice more in the same manner and engaged in sexual intercourse. See
  Police Report [ 36-2]at 2; A.R. Depo. [ 36-1] at 155:24-156:24, 160:7-161 :9. The two
  continued to exchange late night phone calls and text messages during this period. Id. at
  159:1-7.

  In July 2010, A.R. learned through Facebook that Defendant Frank was engaged to marry a
  woman. See Police Report [ 36-2] at 2. She then told her mother about the encounters with
  Defendant Frank, and her mother called the police. A.R. Depo. [ 36-1] at 164:22-25, 165:6-
  7. Defendant Frank was arrested, and he pleaded guilty to a charge of sexual assault of a
  15-year-old with more than a 10-year age difference, a class 1 misdemeanor.

  Motion[ 36] at 2; see Colo.Rev.Stat. § 18-3-402(1 )(e) (“Any actor who knowingly inflicts
  sexual intrusion or sexual penetration on a victim commits sexual assault if: (e) At the time
  of the commission of the act, the victim is at least fifteen years of age ... and the actor is at
  least ten years older than the victim and is not the spouse of the victim.”). The parties agree
  that with the exception of “occasional hugging,” no sexual contact occurred between A.R.
  and Defendant Frank during either Sunday worship services or the Sunday school class
  taught by Defendant Frank. See Motion [ 36] at 2-3; A.R. Depo. [ 36-1] at 107:22-
  108:2; 121 :23-122:22; 123:16-19. *2 Here, A.R. brings suit against Defendant Frank
  for battery, negligent infliction of emotional distress, and outrageous conduct. Comp. [ 4]
  23-30, 49-53. She sues Defendant LDS for negligent hiring, negligent supervision, breach
  of fiduciary duty, and outrageous conduct. Id. 32, 37-38, 40, 44, 46-53. Plaintiff offers
  the expert testimony of Paul Isenstadt (“Isenstadt”) to support her claims. Briefly, Mr.
  Isenstadt opines: “in the determination of having [Defendant] Frank teach a class of
  students alone ... church personnel should have reviewed his history and background,”
  Isenstadt Report [

  36-4] at 3; “[t]he role of background checks in working in this capacity has become
  increasingly mandatory in all settings in which an individual may be acting in a [p]osition of
  [t]rust,” id.; certain steps should have been taken to allow others to monitor Mr. Frank's
  classes, id. at 3-4; “a large majority of sexual offenses involve individuals who engage in a
  cycle of behavior over a period of time,” id. at 4; Defendant Frank “groomed” 1 Plaintiff A.R. ,
  id.; “[identified sex offenders ... tend to be very engaging and ingratiating in ‘setting up’ their
  victims,” id. at 5; Defendant Frank has a STATIC-99R 2 score of two, id. at 6; Defendant
  Frank's “tattoos alone, given church teachings[,] should have generated some concern”
  about his background, id.; “[t]here does not appear to be any mentoring that occurred in
  regard to [Defendant] Frank with this class of adolescents.” Id. At 8. Mr. Isenstadt also
  expresses “concern” about other topics. For example, among other things, Mr. Isenstadt
  expresses “concern” regarding his belief that Defendant LDS did not interview Defendant
  Frank or review his background and his interest in teaching. Id. At 7. In the present Motion,
  Defendant LDS asserts multiple grounds for excluding Mr. Isenstadt's testimony pursuant to
  Fed.R.Evid. 702 . First, Defendant LDS argues that Mr. Isenstadt is unqualified to serve as
  an expert “on standards of care for selecting and retaining teachers,” or on “the standard of
  care for churches.” Motion [ 36] at 5. Second, Defendant LDS argues that Mr. Isenstadt's
  opinions are unreliable, as they make assumptions that are contrary to the facts. Id. at 8.
  Third, Defendant LDS argues that Mr. Isenstadt's opinions will not assist the trier of fact, as
  they are “merely observations which are within a lay jury's ability.” Id. At 5. Defendant LDS
  addresses the allegedly objectionable opinions in Mr. Isenstadt's report one-by-one, noting
  where and how it believes each fails to meet the requirements of Fed.R.Evid. 702 and the
  standards prescribed in Daubert. 3

  The Court summarizes these objections as follows:

  1 . Defendant LDS objects to Mr. Isenstadt's opinion that Defendant Frank assumed “a
  Position of Trust in teaching a class of adolescent students” on the grounds of lack of
  expertise. Motion [ 36] at 6 (citing Isenstadt Report [ 36-4] at 3).

  2. Defendant LDS objects to Mr. Isenstadt's assertion that “the role of background checks ...
  has become increasingly mandatory in all settings in which an individual may be acting in a
  Position of Trust” on the grounds of lack of expertise and failure to specify how his
  “experience leads to the conclusion reached.” Id. (citing Isenstadt Report [ 36-4] at 3;
  Fed.R.Evid. 702 advisory committee's note)

  3. Defendant LDS objects to Mr. Isenstadt's opinions regarding classroom safety, including
  concerns about class monitoring, on the grounds of lack of expertise
  and relevance. Id. at 7-8 (citing Isenstadt Report [ 36- 4] at 3-4).

  4. Defendant LDS objects to Mr. Isenstadt's opinions regarding “grooming” cycles on the
  ground of relevance. Id. at 8-12 (citing Isenstadt Report [ 36-4]

  at 4-5). 4

  5. Defendant LDS objects to Mr. Isenstadt's opinions regarding issues of recidivism and
  application of STATIC-99R on the grounds of relevance. Id. (citing

  Isenstadt Report [ 36-4] at 6). *3

  6. Defendant LDS objects to Mr. Isenstadt's “concern” about Defendant LDS's alleged
  failure to report Defendant Frank's misconduct to the proper authorities on the grounds of
  lack of expertise, relevance, and the “uncontradicted testimony that

  [Defendant LDS] learned about the misconduct after [A.R.'s] mother had already notified the
  police and the criminal investigation had already commenced.” Id.
  at 14 (citing Isenstadt Report [ 36-4] at 7; Depo. Of Patricia Pacetti [ 36-7] at 95:7-96:1 ;
  Depo. of Todd Miller [ 36-8] at 70:20-25, 76:9-1 7).

  7. Defendant LDS objects to Mr. Isenstadt's “concern” about why Defendant Frank was not
  interviewed, why his record was not annotated for a history of abuse, and why Defendant
  LDS was not more concerned about his tattoos, on the grounds of lack of the necessary
  qualification “to opine on the standard of care for ‘calling’ teachers,” relevance, and
  reliability. Id. at 1 4—1 5 (citing Isenstadt Report [ 36-4] at 7). Plaintiff objects to the Motion
  and contends that Mr. Isenstadt is qualified to testify as an expert in these matters pursuant
  to Fed.R.Evid. 702 .

  Response [41]

  If 9. Plaintiff counters Defendant LDS's arguments by asserting that Defendant LDS failed to
  perform either a Daubert analysis or an analysis pursuant to Fed.R.Evid.

  702 , and that Defendant LDS's “blanket objection” to the “portions of Mr. Isenstadt's report
  that are disfavorable to [Defendants'] case” is insufficient to support excluding
  Mr. Isenstadt as an expert witness. Id. If 14. Plaintiff argues that Mr. Isenstadt has not been
  endorsed, as Defendant LDS alleges, as an expert on church practices, but as “an
  expert in practices for evaluating employees/volunteers and in evaluating sexual offenders.”
  Id.

  If 18. Plaintiff asserts that Mr. Isenstadt's fifty years of experience in these fields establish
  his expertise and his ability to testify as an expert witness on these matters. Id. If 24.

  Plaintiff also alleges than “Mr. Isenstadt's opinions are based on sufficient facts and data,”
  id. If 34, and are “instructive to the jury on issues of [Defendant] LDS's organizational
  practices for evaluating employees/volunteers, [Defendant Frank]'s behavior as [a] sexual
  offender, and [Defendant] LDS's safety practices to prevent offender behavior.” Id.

  If 29. Plaintiff further alleges that Mr. Isenstadt applied “reliable principles in arriving at his
  opinions,” satisfying the factors prescribed in Daubert. Id. If 39. In the event that
  the Court considers precluding any part of Mr. Isenstadt's testimony, Plaintiff also “moves
  the Court for a Daubert hearing to qualify Mr. Isenstadt as an expert witness in
  this matter.” Id.

  If 13. *4 In its Reply, Defendant LDS argues that “[t]his is a negligence case [, and that if
  Mr.] Isenstadt cannot testify to the relevant standard of care, he cannot be of assistance to
  the jury.” Reply [ 44] at 3. Defendant LDS again challenges Mr. Isenstadt's qualifications,
  alleging he is not an expert on background checks, classroom safety measures, or the
  applicable standard of care for churches. Id. at 3-5. Defendant LDS also makes a variety of
  arguments about the relevance and reliability of Mr. Isenstadt's specific opinions on
  Defendant Frank's “grooming” behaviors and Defendant LDS's alleged “failure to report.” Id.
  at 5-8.

  To Read the Court's Analysis in this Motion see FRANK-David Scott Frank-AR v COP.pdf
  III. Conclusion

  For the reasons set forth above,

  IT IS HEREBY ORDERED that the Motion [ 36] is GRANTED in part and DENIED in part.
  The Motion is GRANTED to the extent that it seeks to exclude all of Mr. Isenstadt's expert
  opinions except for the two portions of his expert report indicated above.

  *11 IT IS FURTHER ORDERED that portions of Mr. Isenstadt's Report [ 36-4] are

  STRICKEN as indicated above.”

  IT IS FURTHER ORDERED that Plaintiffs request for a Daubert Hearing is DENIED.

  All Citations

  Not Reported in F.Supp.2d, 2013 WL 5463518”

  A.R. by Pacetti v. Corporation of President of Church of..., Not Reported in...

  © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3

  End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

  2013 WL 5463518

  Only the Westlaw citation is currently available.