Snead et al v. Wright et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MONIQUE R. SNEAD, Individually,
and as Personal Representative of the
Estate of John H. Snead; et al.,
Plaintiffs,
vs.
GUADALUPE C. WRIGHT; et al.,
Defendants.
Case No. 3:19-cv-00092-JWS
3:19-cv-00209-JWS
CONSOLIDATED
ORDER
I. 	MOTION PRESENTED
At docket 136, Defendant Guadalupe C. Wright (“Wright”) filed a
motion to exclude the proposed expert testimony of Sheila Shinn, an expert on issues
relating to diminished capacity and undue influence put forth by Plaintiffs Monique R.
Snead and John G. Snead (“Plaintiffs”). 	Plaintiffs filed an opposition at docket 140.
Wright filed a reply at docket 146. 	Oral argument would not be of assistance to the
court.
II. 	BACKGROUND
This federal action involves a dispute related to certain Merrill Lynch
accounts held by John H. Snead (“Snead”), the father of Plaintiffs, who died in August
2017. 	Plaintiffs allege that Wright, who had been in a long-term relationship with
Snead up through his death and an employee of Merrill Lynch, “exerted undue
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 1 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 2
influence, wrongfully facilitated, and/or otherwise deceived John H. Snead” in order
to obtain funds from Snead’s trust accounts and make herself the beneficiary of his
annuity. Their claims against her include conversion, fraud, and malpractice. Wright
moves to exclude all testimony from Sheila Shinn (“Shinn”), who proposes to offer an
opinion as to Snead’s diminished capacity and Wright’s use of undue influence to
secure his assets. Wright argues that Shinn is not qualified to render an expert opinion
on diminished capacity, and her expert report and deposition testimony “are rife with
inflammatory allegations, wild speculation and adversarial opinions” and therefore
unreliable for purposes of Rule 702 of the Federal Rules of Civil Procedure or
otherwise excludable as unhelpful, misleading, and likely to cause juror confusion and
undue prejudice against her.1
III. 	LEGAL STANDARDS
Federal 	Rule 	of 	Evidence 	702 	permits 	a 	witness 	qualified 	by
“knowledge, skill, experience, training, or education” to offer expert testimony where:
(1) the testimony will help the trier of fact understand the evidence or determine a fact
in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the
product of reliable principles and methods; and (4) the expert has reliably applied the
principles and methods to the facts of the case.2 This rule helps the court perform its
mandatory gatekeeping function to “assure that the expert testimony ‘both rests on a
1 Docket 136-1 at 3–5.
2 Fed. R. Evid. 702.
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 2 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 3
reliable foundation and is relevant to the task at hand.’”3 “[T]estimony is relevant if
the knowledge underlying it has a valid connection to the pertinent inquiry.” 4
Testimony is reliable if it is rooted in the “knowledge and experience of the relevant
discipline.”5 	The court’s role in analyzing reliability “is to analyze not what the
experts say, but what basis they have for saying it.”6 That is, reliability is not to be
conflated with credibility. “Shaky but admissible evidence is to be attacked by cross
examination, contrary evidence, and attention to the burden of proof, not exclusion.”7
The court must act as gatekeeper for both scientific and non-scientific
expert testimony, although it has flexibility in structuring how it determines whether
expert testimony is reliable and relevant. 8 	For non-scientific expert opinions,
reliability often cannot be measured by examining the supporting theories and
methodologies, including issues of testing, error rates, and peer review publication.9
A court may or may not consider any specific reliability factor depending on the type
of expertise and particular subject of the testimony.10 Indeed, a court can find non-
scientific testimony reliable based merely on the knowledge and experience of the
3 Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (quoting Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 597 (1993)).
4 Id. at 565 (quoting United States v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006)).
5 Id.
6 Wendell v. GlaxcoSmithKline LLC, 858 F.3d 1227, 1232 (9th Cir. 2017) (quoting Daubert
v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995)).
7 Primiano, 598 F.3d at 564.
8 United States v. Valencia-Lopez, 971 F.3d 891, 898 (9th Cir. 2020).
9 Primiano, 598 F.3d at 564; Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998,
1017 (9th Cir. 2004).
10 Primiano, 598 F.3d at 564 (“[T]he trial court has discretion to decide how to test an expert’s
reliability as well as whether the testimony is reliable, based on ‘the particular circumstances of the
particular case.’” (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999))).
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 3 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 4
expert. 11 	Exclusion of expert testimony should be “the exception rather than the
rule.”12
IV. 	DISCUSSION
A. 	Capacity
Plaintiffs retained Shinn as an expert in gerontology, which includes the
social issues surrounding aging, and had her analyze Snead’s mental capacity around
the time of his death. 13 	In her report, Shinn concludes that Snead “experienced
diminished capacity given the severity of his ailments, specifically heart failure.”14
She describes his condition as “vascular dementia.”15 Wright argues that Shinn is not
qualified to put forth an opinion on Snead’s mental capacity, particularly given that
her opinion is based only on review of his medical records and medical literature
linking heart failure to cognitive impairment, with no direct evaluation of Snead
himself.
Shinn has over twenty years of experience working in the field of
gerontology—which studies aging from a social perspective rather than a physical
perspective—with a master’s degree in the topic as well as a master’s in public health.
She has been a certified dementia practitioner since 2017, with recent experience as a
contractor with the State of Alaska Office of Public Advocacy and the Alaska Court
System 	in 	the 	role 	of 	court 	visitor 	on 	matters 	related 	to 	guardianship 	and
11 Hangarter, 373 F.3d at 1017.
12 Fed. R. Evid. 702 advisory committee’s note to 2000 amendment.
13 Docket 136-2 at 3; Docket 136-3 at 3.
14 Docket 136-2 at 7.
15 Id. at 8.
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 4 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 5
conservatorship. She testified that as a certified dementia practitioner she is trained to
recognize diminished capacity in the elderly and that she works closely with people
who “have had some kind of cognitive impairment.”16 	She has a long history of
teaching and developing programs on issues related to elder care and elder fraud.
Despite her experience and training on issues related to aging, elder care,
and elder abuse, the court agrees with Wright that Shinn’s testimony about Snead’s
metal capacity should be excluded under Rule 702 as outside her expertise or otherwise
not helpful to the jury. 	Shinn acknowledged in her deposition that Snead’s medical
records did not mention any mental status exams or cognitive assessments that
suggested dementia or diminished mental capacity. 17 Unlike her experience in state
court where she conducts in-person assessments and investigations of the person who
is the subject of the guardianship or conservatorship, she was not able to make any in-
person assessment of Snead.18 	She instead relied on Snead’s medical records that
showed he suffered from heart failure, along with other comorbidities, and that he
reported grogginess and some confusion. 	Then based on medical literature linking
heart failure to vascular dementia she concluded Snead had diminished mental capacity
at the time of his death.19 While Shinn has expertise in the field of aging, including
working with people suffering from dementia and being able to recognize the signs of
dementia or diminished capacity, her experience and training does not sufficiently
16 Docket 136-3 at 61.
17 Id. at 33.
18 Id. at 67.
19 Docket 136-2 at 7–8.
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 5 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 6
extend to diagnosing such conditions based upon medical records and reviewing
medical literature.
Moreover, her opinion will be of little assistance to the jury on this issue.
As acknowledged in her deposition testimony, her opinion is not necessarily based on
specialized knowledge: 	“I’m not a medical doctor, but I can read . . . and can
understand medical records.”20 She admitted that, unlike her usual work, here she was
“really relying on hearsay and medical records to determine his state of mind.”21 She
could not say Snead was “incapacitated.” Rather, she could only confidently say that
based on his medical conditions he did not have “a hundred percent full brain
capacity.”22 This is not an opinion formed from specialized knowledge that would be
of assistance to the jury on the issue of Snead’s capacity.23 Indeed, Plaintiffs have a
medical expert, Gregory T. Whitman, MD, to testify about Snead’s health conditions
and how they would have affected his capacity to understand certain events taking
place in the time preceding his death.24 Consequently, the issue of capacity is a fact to
be determined by the jurors following Plaintiffs’ presentation of evidence and other
expert testimony, and Shinn’s opinion would not add any specialized information to
that determination.
20 Docket 136-3 at 32.
21 Id. at 67.
22 Id.
23 Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1065 n.9 (9th Cir. 2002) (noting that
to be admissible as helpful to the jury, the expert must provide testimony about an issue that is “beyond
the common knowledge of the average layman” (quoting United States v. Vallejo, 237 F.3d 1008, 1019
(9th Cir.), amended by 246 F.3d 1150 (9th Cir. 2001))).
24 Docket 140-1.
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 6 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 7
B. 	Undue Influence
Wright 	asserts 	that 	Shinn’s 	expert 	testimony 	regarding 	the 	undue
influence Wright exerted on Snead should be excluded in full as unreliable. She argues
that Shinn’s opinions as articulated in her report and in her deposition testimony are
based upon speculation and inferences not supported in the record. 	She asserts that
Shinn improperly comments on Wright’s credibility and motives, which invades the
province of the jury, and otherwise makes conclusions on areas outside her expertise
in a manner that would be prejudicial to Wright and confusing to the jury.
After due consideration of Wright’s argument and Shinn’s report and
deposition, the court cannot deem her opinions entirely unreliable to the extent that she
should be outright prohibited from testifying under Rule 702. 	Shinn has a sufficient
foundation of knowledge and experience to serve as an expert on undue influence over
the elderly. As noted in her report, she is knowledgeable about what undue influence
is and how to identify when it is occurring or at risk of occurring. 	She also is
knowledgeable as to the methods used by experts in the field of gerontology to look
for manipulation of the elderly:
For purposes of this report, I am using the IDEAL protocol
developed by Dr. Bennett Blum and the Bernatz SCAM
Model. 	The IDEAL protocol combines knowledge from
the 	fields 	of 	psychiatry, 	psychology, 	and 	sociology
regarding the mechanism of human manipulation. Factors
in 	the 	IDEAL 	protocol 	are 	Isolation, 	Dependency,
Emotional 	Manipulation, 	and/or 	Exploitations 	of 	a
vulnerability; Acquiescence; and Loss. The SCAM model,
developed by Susan I. Bernatz, PhD., builds upon the
IDEAL protocol but includes factors that contribute to
susceptibility. 	Elements of the SCAM model include
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 7 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 8
Susceptibility, 	Confidential 	[R]elationship, 	Active
Procurement, and Monetary Loss. . . . Common signs of
vulnerability 	include 	but 	are 	not 	limited 	to 	being
physically 	disabled, 	experiencing 	comorbidities,
dependency on a caregiver for all activities of daily living,
lacking 	mobility 	and 	no 	longer 	driving, 	and 	being
homebound and/or socially isolated.25
Given the models cited, her opinion on whether Wright exerted undue influence on
Snead before his death is based upon accepted methods in the field. She applied these
models to the facts as presented to her through discovery. Her testimony related to the
field of elder care and undue influence is specialized knowledge that will assist the
trier of fact. Consequently, Shinn’s testimony about how undue influence is identified
in the field of gerontology and what facts in this case suggest undue influence was
occurring is admissible expert testimony under Rule 702.
Wright points to various opinions and conclusions in the report that she
asserts are based on speculation and a selective version of the facts presented in
discovery. She argues that the report is rife with such conclusions and therefore should
be deemed unreliable. 	The fact that Shinn’s testimony may be susceptible to
impeachment based on erroneous facts or incomplete consideration of the evidence
does not require wholesale exclusion of Shinn as an expert at trial. 	Questions or
disagreements about the facts supporting her opinion reflect on credibility, not
admissibility.26 The court cannot conclude that her opinions are wholly speculative.
25 Docket 136-2 at 9.
26 Elosu v. Middle Fork Ranch Inc., 26 F.4th 1017, 1023–24 (9th Cir. 2022).
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 8 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 9
The court’s rejection of Wright’s request to outright exclude Shinn from
testifying should not be read as a finding that her entire report is above reproach.
Plaintiffs may not introduce Shinn for the purpose of reinforcing their factual narrative
or providing a synopsis of their evidence for the jury.27 	Her testimony must be
provided in the context of how experts in her field of gerontology look for undue
influence. 	Moreover, Plaintiffs’ counsel should caution Shinn against offering her
opinion about other witnesses’ credibility. For example, in her report Shinn concludes
that Wright was lying about when her relationship with Snead began and about the fact
that she did not have a romantic relationship with Chris Olsen, the man who was
negotiating to purchase Snead’s business and who was made Snead’s power of attorney
and health care agent shortly before Snead’s death. This type of opinion is improper:
“An expert witness is not permitted to testify specifically to a witness’ credibility.”28
Determining witness credibility is an exclusive function of the jury.29 That does not
mean, however, that she is foreclosed from offering her opinion based on a set of facts
she assumes to be credible or evidence that conflicts with Wright’s testimony.30 She
simply cannot offer an opinion or make a comment to the jury regarding Wright’s
truthfulness.
27 Johns v. Bayer Corp., No. 09-cv-1935, 2013 WL 1498965, at *28 (S.D. Cal. Apr. 10, 2013).
28 Reed v. Lieurance, 863 F.3d 1196, 1209 (9th Cir. 2017) (quoting Unites States v. Candoli,
870 F.2d 496, 506 (9th Cir. 1989)).
29 United States v. Ramirez-Rodriquez, 552 F.2d 883, 884 (9th Cir. 1977); Candoli, 870 F.2d
at 506. 30 See Reed, 863 F.3d at 1209; see also Ellis v. Navarro, No. C-07-5126-SBA, 2012 WL
3580284, at * 6 (N.D. Cal. Aug. 17, 2012).
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 9 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 10
Additionally, Shinn must be instructed to refrain from giving any
testimony that speculates as to motive or intent.31 For example, in her report where
she discusses the presence of manipulation, she references an email between Wright
and Chris Olsen wherein Wright mentions that an attorney for the Snead family
questioned whether Wright was being manipulative.32 Shinn discusses the content of
the email and then goes further to conclude that Wright was “over-explaining” herself
to perhaps cover up that she had been eavesdropping.33 Such a statement is speculative
as to Wright’s motive and state of mind. 	Testimony of this nature is not appropriate
expert testimony and will be subject to objection and exclusion at trial.
To the extent Wright requests that this court parse through Shinn’s report
and identify other statements that improperly speculate as to motive and intent, the
court declines to do so. 	Her “report is not evidence and, because the objectionable
character of some of [her] statements may simply be due to injudicious phrasing, a pre-
trial ruling on the admissibility of [her] testimony is premature.”34 “There is nothing
prejudicial to a party in reserving a ruling on the admission of opinions and conclusions
of an expert until offered at trial when all of the necessary foundation must be proved
31 See, e.g., Siring v. Oregon State Bd. of Higher Educ. ex rel. E. Oregon Univ., 927 F. Supp.
2d 1069, 1077–78 (D. Oregon 2013).
32 Docket 136-2 at 15.
33 Id.
34 Madrigal v. Allstate Indem. Co., CV-14-4242-SS, 2015 WL 12746232, at *5 (C.D. Cal.
Oct. 29, 2015).
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 10 of 11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Snead et al. v. Wright, et al. 	Case No. 3:19-cv-00092-JWS
Order 	Page 11
and the adequacy of the showing made will be determined before questions asking for
opinions and conclusions will be permitted.”35
V. 	CONCLUSION
Based on the preceding discussion, Wright’s motion to exclude the
proposed expert testimony of Sheila Shinn at docket 136 is GRANTED IN PART AND
DENIED IN PART. For the reasons discussed above, the court prohibits Sheila Shinn
from offering her expert opinion as to John H. Snead’s diminished capacity. She may,
however, testify as an expert on the subject of undue influence and its application to
this case. Nothing in this order should be deemed a ruling on the admissibility of any
specific statement contained in her report, and the court reserves the right to exclude
her testimony in the course of trial that exceeds the proper scope of her expertise or is
shown to be irrelevant or otherwise inadmissible based on the evidence as presented at
trial.
IT IS SO ORDERED this 19th day of September, 2022, at Anchorage,
Alaska.
/s/ John W. Sedwick
JOHN W. SEDWICK
Senior United States District Judge
35 Morford v. Wal-Mart Stores, Inc., 2:09-cv-02251-RLH, 2011 WL 2313648, at *8 (D. Nev.
June 9, 2011) (citing United States v. Alatorre, 222 F.3d 1098, 1103 (9th Cir. 2000)).
Case 3:19-cv-00092-SLG Document 153 Filed 09/19/22 Page 11 of 11