Use Expert Witness Testimony in Student Loan Hardship Discharge Litigation
In the Daubert trilogy, the U.S. Supreme Court—with no hint of equivocation—instructed the federal courts that they had a duty at trial to act as "gatekeepers" charged with the responsibility of keeping out of the record any "scientific, technical or other [evidence requiring] specialized knowledge" unless they can ensure that the witness presenting such testimony is qualified in his or her professed area of expertise, and that the testimony is "the product of reliable principles."
Since Daubert and its progeny were decided, hundreds of federal courts have applied their principles to assess the admissibility of alleged expert testimony that litigants hoped to use. Bankruptcy courts have applied the Daubert standards in a number of cases.6 Curiously, however, Daubert has hardly been mentioned in bankruptcy court decisions on the subject of whether a debtor should get a hardship discharge from student loan obligations because of problems associated with severe mental, physical or emotional ailments,7 an area in which contests concerning expert witness testimony would seem to frequently arise.
The lack of discussion on the subject of expert witness testimony in bankruptcy court student loan hardship discharge decisions may, to a large extent, be a product of economic considerations. As one bankruptcy judge opined:
[I]t is extraordinary for dischargeability litigation that hinges on a debtor's medical condition to actually hinge on medical testimony. This is because all dischargeability litigation involves real persons who are debtors under the Bankruptcy Code and cannot afford to hire medical experts to testify to the effect of their disease on their earning capacity. When medical testimony is offered by the debtor it is to lay skepticism to rest, and in this writer's experience the medical condition of any debtor has never been the subject of dueling experts in §523(a)(8) litigation. So too is it common that a student loan lender has neither the financial means (spread across so many cases) nor the professional impulse to challenge a medical diagnosis or the effects thereof.8In effect, courts adhering to this line of reasoning have, because of the costs associated with hiring an expert witness, essentially fashioned an "undue hardship" evidentiary rule that allows debtors allegedly too poor to hire expert witnesses to litigate medical questions without the testimony of qualified medical witnesses. Nothing in the Federal Rules of Evidence9 or the Bankruptcy Code authorizes such a practice.10
Notwithstanding the fact that it may be financially difficult for debtors and creditors in many hardship discharge cases to hire expert witnesses, many bankruptcy courts have denied relief to debtors because they have failed to offer any evidence, other than their own testimony, to corroborate their claims of undue hardship due to mental or physical problems.11 On the other hand, some bankruptcy courts have rejected outright the notion that expert testimony is required in medical hardship cases. Courts adhering to this latter line of cases seem to be ignoring the gatekeeping function required of them by Daubert.
This article discusses the interaction between the Federal Rules of Evidence and the student-loan hardship discharge requirements of the Bankruptcy Code. It concludes that based on applicable rules and case law, laypersons are simply not competent to provide guidance to the courts on whether a debtor's physical or mental problems are sufficiently dire, long-term circumstances to justify the entry of a hardship discharge of a student loan. Thus, parties litigating such matters in bankruptcy court should litigate medical hardship discharge cases by consulting appropriate experts, and being prepared to offer such testimony in court.
Overview of Student Loan Hardship Discharge Law
When the Bankruptcy Code was enacted 1978, Congress enacted 11 U.S.C. §523(a)(8), which prohibited the discharge of certain educational loans during the first five years of repayment unless the debtor could establish that this prohibition caused a hardship.12 Since then, Congress has, at various times, amended §523(a)(8) to extend the immunity of student loans from discharge to different types of educational loans and to eliminate the limitation period. As a result, student loans made by government units or nonprofit organizations are generally nondischargeable, absent a court determination that requiring a debtor to meet his or her student loan obligations would constitute an "undue hardship."13
In pertinent part, §528(a)(8) currently reads as follows:
(a) A discharge under §727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt—Because Congress has progressively made student loans more difficult to discharge, there is little question that debtors should bear a high burden in proving that their student loan debts are dischargeable. The question with which federal courts have struggled is how to interpret the phrase "undue hardship."(8) for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor's dependents.14
The courts have fashioned two tests to determine whether a debtor is eligible for a hardship discharge. The majority view is the Brunner test, under which a student loan made by a government or nonprofit entity can be discharged if the debtor can establish that:
- the debtor cannot maintain, based on current income and expenses, a "minimal" standard of living for herself or her dependents if forced to repay the loans;
- additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and
- the debtor has made good-faith efforts to repay the loans.15
In the Eighth Circuit, a totality-of-the-circumstances test is used to determine whether it would be an "undue hardship" on a debtor to require her to repay the student debt she owes.17 This test requires the bankruptcy court to examine the totality of the circumstances, "with special attention to" (1) the debtor's current and future "reasonably reliable financial resources," (2) the debtor's, and his or her dependents', reasonable, necessary living expenses and (3) "any other circumstances unique to the particular bankruptcy case."18 Regarding the first and second factors, the debtor should demonstrate that she has "done everything possible to minimize expenses and maximize income," and the possibility of changes in the future should also be presented.19
[S]ome bankruptcy courts have rejected outright the notion that expert testimony is required in medical hardship cases. Courts adhering to this latter line of cases seem to be ignoring the gatekeeping function required of them by Daubert.
Some courts applying the totality-of-the-circumstances test have resorted to a list of factors as a guide. Factors examined in this manner include the following:
- total incapacity now and in the future to pay one's debts for reasons not within the control of the debtor,
- whether the debtor has made a good-faith effort to negotiate a deferment or forbearance of payment,
- whether the hardship will be long-term,
- whether the debtor has made payments on the student loan,
- whether there is permanent or long-term disability of the debtor,
- the ability of the debtor to obtain gainful employment in the area of study,
- whether the debtor has made a good-faith effort to maximize income and minimize expenses,
- whether the dominant purpose of the bankruptcy petition was to discharge the student loans, and
- the ratio of the student loan to the total indebtedness.20
Under either the Brunner or totality-of-the-circumstances approaches, bankruptcy courts are required to scrutinize whether a debtor is experiencing a long-term state of affairs that would make it an undue hardship to require him or her to repay student loans that would otherwise be nondischargeable. If the debtor's inability to repay a student loan debt is because of a medical condition, the court must decide whether the long-term nature of the debtor's alleged ailment would make repaying the loan an unreasonable obligation. Federal bankruptcy courts are obligated to apply the Federal Rules of Evidence when deciding such issues.
The Federal Rules of Evidence and Bankruptcy
By their express terms, the Federal Rules of Evidence "govern proceedings in the courts of the United States and before U.S. bankruptcy judges, to the extent and with the exceptions stated" in Fed. R. Evid. 1101.22 Rule 1101(b) mandates that the Rules "apply generally to civil cases and proceedings...and to proceedings and cases under Title 11, U.S. Code." While Rule 1101 carves out some limited types of cases to which the Rules of Evidence do not apply, none of these special cases involved bankruptcy proceedings.23 Consequently, the admissibility of evidence in all bankruptcy cases—including controversies over whether a debtor is entitled to a hardship discharge of a student loan—is controlled by the same formal standards of evidence that generally apply in all other civil matters in federal court. There are no exceptions.
As a general rule, every person is competent to be a witness in federal court, with some limitations.24 For example, a person "may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."25 If a person is not testifying as an expert, his or her opinion testimony is limited to opinions or inferences that are "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702."26
By its terms, Rule 701 is both a rule of inclusion and of exclusion. It allows laypersons to testify about matters they have witnessed, but prohibits them from testifying about matters requiring specialized or scientific knowledge. The Federal Rules of Evidence provide precise instructions on the qualifications a person needs before he or she can present opinion testimony based on specialized knowledge. In full, Rule 702 ("Testimony by Experts") provides:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods and (3) the witness has applied the principles and methods reliably to the facts of the case.Rule 702 is a flexible standard. It permits a person to be qualified as an expert witnesses by "knowledge, skill, experience, training or education"—or any combination thereof. Conversely, a person who is not qualified as an expert in a field by any of these factors may not testify about scientific, technical or other matters requiring specialized knowledge. A series of U.S. Supreme Court cases starting in 1993 left no doubt as to how Rule 702 was to be applied in federal court.
In Daubert, the Supreme Court considered whether the historical rule of Frye v. United States,27 which had excluded scientific evidence that had not gained general acceptance in the relevant field, was still the law of the land. The Daubert Court confirmed that Rule 702, and its flexible approach to the admissibility of expert witness testimony, controlled, not Frye. However, because Frye was abandoned, it did not mean that there were no longer any limits on the admission of alleged expert witness testimony. Justice Blackmun explained the contours of Rule 702 in detail.
First, the Daubert Court emphasizes that the role of the presiding judge in a case involving alleged expert testimony is properly described as a "gatekeeper function,"28 meaning the court has a duty to keep out of the record any scientific evidence that is not offered by a competent expert, or that is not relevant or reliable.29 In other words, under Daubert, federal courts must engage in a two-step evidentiary inquiry in assessing the propriety of permitting alleged expert testimony into evidence. "First of all, the proffered 'expert' must be qualified to express an expert opinion.... Secondly, the proffered expert opinion must be reliable."30 The subject of an expert's testimony must be "scientific...knowledge, " which " implies a grounding in the methods and procedures of science."31 Finally, the Court emphasized that "[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission."32
In Kumho Tire, the Supreme Court held that Daubert's "general holding—setting forth the trial judge's general 'gatekeeping' obligation—applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge."33 In addition, the Court clarified that Daubert's list of specific factors to test reliability neither "necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination."34
In summary, the Daubert trilogy actually stands for a trilogy of restrictions on expert testimony: "qualification, reliability and fit."35 "Qualification" simply means that the witness possesses specialized expertise.36 "Reliability" means the testimony "must be based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation'; the expert must have 'good grounds' for his on her belief."37 "Fit" means that the evidence must be relevant to the matter at hand.38
Daubert and Medical Hardship
In light of the foregoing body of law, there is little doubt that federal bankruptcy judges must perform a gatekeeper function before permitting alleged expert witness testimony into the record of the case. First, they must make sure that the person offering such testimony is qualified as an expert, on the basis of education, training, experience and similar factors. Secondly, the fact that a witness has a medical degree does not, absent specific education, training or experience in psychiatry or psychology, qualify him as an expert in psychiatric or psychological matters.39 Thus, a debtor must support a medical-hardship claim by an expert in the field in question, and not by the use of a professional with general medical knowledge.
As noted above, many bankruptcy courts have been reluctant to require a debtor to present expert testimony to support student loan hardship discharge claims based on alleged physical, mental or emotional problems. The courts have taken diverse approaches on the type of evidence a debtor must present to support such claims. Some courts have found a debtor's testimony sufficient, some have required testimony plus at least medical records, and some have gone so far as to engage in medical research themselves to assess the medical representations made to them by the debtor,40 claiming the authority to do so under the authority of judicial notice.41 This last practice seems particularly ill-founded: A review of medical literature by a person not trained in the field—and who has no experience diagnosing medical conditions—does not seem to be the proper subject of judicial notice. The practice might be appropriately used to a limited extent if a debtor has at least presented medical records at trial, and the court is simply using extra-judicial resources to try and decipher the meaning of the documents. It should be noted that a review of the cases suggests that many creditors also, at least in earlier cases, failed to insist that medical testimony be required and/or failed to offer any such evidence in rebuttal.
The modern trend in bankruptcy court appears to be judicial recognition that a debtor cannot rely on his or her own testimony alone to support a medical, mental or emotional hardship claim. For example, in In re Daugherty (Daugherty v. First Tennessee Bank),42 a debtor who had earned a master's degree in communications from the University of Tennessee, funded with student loans, requested a hardship discharge based on alleged "physical and emotional problems that preclude[d] her from maintaining any type of employment for an extended period of time."43 At trial, she testified that she had suffered from chronic depression her whole life and was under the care of a psychologist. On the other hand, the debtor also testified that her doctors told her it would be good for her to go back to work. She was denied a hardship discharge. The court's decision was based, to a large extent, on the fact that the record contained "[n]o proof, other than her own testimony, that she is unable to work."44 Though Daugherty, like most such cases, turns on its own unique facts, it at least suggests that a debtor's self-assessment of inability to work is—standing alone—insufficient to establish a medical-hardship claim.
The trouble with relying on uncorroborated testimony from a debtor—or taking the judicial review approach to fill in gaps left by a debtor's explanation of his or her condition—is well-explained by the court in In re Noraseth (Noraseth v. Boston University).45 In Noraseth, the debtor, an Iranian immigrant who had earned both a bachelor's and master's degree in electrical engineering from Boston University, sought to discharge more than $100,000 in student loans. The debtor presented no medical evidence to support his argument. He blamed his inability to find suitable employment on a variety of factors, such as poor training, a poor geographic job market for engineers, an unwillingness or inability to retrain, unfamiliarity with American culture and other factors. The court was not persuaded that the factors constituted a basis for a hardship discharge, but found that the debtor's "principal problem...[appeared] to be a medical one," namely lengthy medical absences from work due to various physical ailments and depression. Unfortunately, the debtor did not submit any corroborating evidence. The court noted that while it is common for debtors to have difficulty paying for such experts, "most judges are laypersons and require some medical evidence to determine the nature, extent and likely duration of a disability." It further observed that while a "judge can observe the witness and hear him describe his symptoms, a judge cannot make a diagnosis or determine the severity of the impairment based on that alone." After engaging in some judicial notice of the nature of depression, and noting that depression can be debilitating, the court added that "the variation in the types of depression underscores the need for competent evidence to assist the court in determining the severity and probable duration of the borrower's disabling condition." Because the debtor provided no such evidence, his claim was denied.
Though some courts have awarded hardship discharges of student loans based on a combination of a debtor's testimony and medical records (without expert testimony), this is a perilous tactic (and contrary to Daubert and its progeny). For example, in In re Burkhead (Burkhead v. United States),46 the debtor produced a 24-page summary of prior medical history at trial to support her medical-hardship claims. The court noted, however, that she appeared healthy at trial, articulate and well-organized. While the court recognized her health problems, its review of the documents led it to believe that the debtor's conditions were amenable to treatment and control. The court denied her request for a hardship discharge because it was not convinced, based on its review of her records, that she had a condition that precluded her from ever earning enough to repay. The decision was ultimately based on the debtor's failure to "call any expert witnesses to testify about her long-term prognosis."47
The legal battle waged in In re Kelsey (Kelsey v. Great Lakes Higher Education Corp.)48 illustrates a classic evidentiary confrontation in which both sides used the tools contemplated by the expert testimony rules and supporting case law. In Kelsey, the debtor, who had been a non-traditional student, had a rather protracted educational history but eventually obtained a bachelor's degree from San Diego State University and graduated from the University of San Diego School of Law. She also later earned a master's of law degree from the University of Vermont. All told, she borrowed more than $150,000 to fund her impressive education. However, she claimed she suffered from numerous mental conditions that prevented her from working and repaying her loans, and thus made her eligible for a hardship discharge of her student loans. At trial, the debtor testified about her inability to hold legal employment and bolstered her contentions with the testimony of her "treating psychiatrist, [who] testified at great length and with competency, clarity and objectivity about the debtor's past, present and reasonably anticipated future mental and emotional condition, and prognosis."49 Based on data culled from the debtor's treatment and history, the psychiatrist concluded that the debtor's complex mood disorder, seasonal affect disorder, depression and bipolar mood disorder prevented her from normal functionality in a work setting. The Kelsey court found this evidence to be of critical significance:
[T[his court closely scrutinizes claims for undue hardship based on psychological or emotional disability due to the susceptibility of such claims to fabrication, exaggeration and fraud. Well-qualified and substantiated expert testimony is essential. The demeanor and credibility of witnesses in testifying regarding the pertinent facts are also paramount considerations in resolving the plethora of factual disputes encountered in student loan discharge cases involving claims of psychological and emotional illness.50As noted, Kelsey presented a classic battle of the experts, insofar as the student-loan creditor called a psychologist to try and rebut the medical claims of the debtor and her doctor. However, the court concluded, based to a great extent on the testimony of the debtor's expert, whom it found more credible that the defense expert, that her mental ailments were "severe, debilitating, life threatening, longstanding and [had] continued to defy treatment over time." It also concluded that her condition was "exacerbated by her attempts to obtain and maintain gainful employment in her professional field...at a level necessary to maintain a minimal standard of living while paying her outstanding student loans." Consequently, the debtor was allowed to discharge her loans.
The modern trend to require expert testimony of some tacitly reflects the courts' recognition that the reason an expert witness is given testimonial latitude much broader than that granted to a lay witness is that he is assumed to have a "reliable basis in the knowledge and experience in his discipline."51 Laypersons simply do not have a reliable basis to render a medical diagnosis and prognosis, which are required to support medical hardship discharge claims.
When using expert witnesses, litigants should be careful to select a person who is truly qualified in the field. The admissibility or weight of such an expert's testimony will depend on his or her qualifications. For example, in a non-bankruptcy case, the Eighth Circuit has recognized that it is entirely appropriate to exclude testimony from a physician that is not within his area of expertise. In Smith v. Rasmussen,52 the court affirmed the district court's limitation of a psychiatrist's testimony to "general psychiatric principles and basic diagnostic criteria," and its exclusion of his testimony concerning the topic of gender identity disorder, because his understanding was "based neither on his personal experience nor on his knowledge of the relevant discipline."53 The fact that he engaged in a literature review on the subject of gender identity disorder did not qualify him as an expert on the subject.54
Those courts that have expressed concern over a debtor's inability to afford an expert have a point, to a degree. However, they are not powerless to help ensure that the record contains the required expert testimony. Fed. R. Evid. 706 allows the court, in appropriate cases, to retain its own expert. Further, Rule 706(b) allows the court to order that the compensation to be paid any such witness be divided—in a ratio it deems appropriate—between the parties.
The foregoing discussion suggests that the Federal Rules of Evidence should require debtors to support student loan hardship discharge claims based on medical, mental or emotional problems with the testimony of qualified experts. Further, the case law suggests that many bankruptcy courts have started to adopt this approach. As a result, bankruptcy counsel would be well-advised to study and follow the law of expert testimony when litigating such claims.
1 The author is an assistant U.S. attorney for the Southern District of Iowa. He received his J.D. in 1989 from Washington University and his M.A. in sociology in 1986 and his B.A. in journalism in 1984 from Eastern Illinois University. He is a former law clerk (1989-91) to the late Hon. Frank W. Koger, U.S. Bankruptcy Judge (W.D. Mo.). The views expressed in this article are solely those of the author and should not be attributed to the U.S. Department of Justice, the U.S. Attorney for the Southern District of Iowa or any other person or entity associated with him. The author dedicates this article to Hon. Russell Hill, U.S. Bankruptcy Judge for the Southern District of Iowa, in gratitude for his years of service to the Iowa bankruptcy bar. He shall be missed. Return to article
6 Daubert has been applied, for example, as an adversary proceeding to except from discharge a debt for injury arising out of a chapter 7 debtor's unlawful operation of motor vehicle while intoxicated (In re Barnes, 266 B.R. 397 (8th Cir. BAP 2001)), to an adversary proceeding to except debt from discharge based on a chapter 7 debtor's false representation, fraud or defalcation while acting in fiduciary capacity, or willful and malicious injury to property of another, In re Jacks, 266 B.R. 728 (9th Cir. BAP 2001), and even to a chapter 11 confirmation hearing. In re Zenith Electronics Corp., 241 B.R. 92 (Bankr. D. Del. 1999). Return to article
7 See In re Hurley (Hurley v. Student Loan Acquistion Authority), 258 B.R. 15, 23 (Bankr. D. Mont. 2001) (little weight was given to creditor's argument because it did not offer expert testimony to rebut that of debtor's vocational expert). Return to article
9 If enforcement of the Federal Rules of Evidence deprives some debtors of the ability to prosecute claims against creditors, the obligation to address the problem rests not with individual jurists but with Congress, or perhaps with the draftsmen of the Federal Rules of Evidence. Federal courts should not interpret the meaning of the Bankruptcy Code based on policy choices. The argument that bankruptcy courts must avoid interpreting the Code in a manner that makes bankruptcy difficult for debtors is not novel. In Bethea v. Robert J. Adams & Associates, 352 F.3d 1125 (7th Cir. 2003), three lawyers contended that reading §727 to discharge chapter 7 debtors' pre-petition debts for legal fees "would force the most destitute of debtors to forego legal assistance because counsel neither could be paid in advance (the norm for chapter 7 cases) nor could collect after the case ends, which would deprive them of the Code's benefits." Id. at 1127. The Bethea court was unpersuaded by this policy argument, noting that the "argument about what makes for good public policy should be directed to Congress; the judiciary's job is to enforce the law Congress enacted, not write a different one that judges think superior." Id. at 1127-1128. Return to article
10 This procedure is, arguably, at odds with United States v. Kras, 409 U.S. 434, 445-46 (U.S. 1973), which rejected the argument that federal law had to be interpreted to allow debtors to file bankruptcy even if they could not pay the filing fee. The Kras Court held that a debtor does not have a constitutional or fundamental right to a discharge in bankruptcy, and therefore is not relieved of the duty to pay the filing fee required to initiate a bankruptcy case. Congress, within the limits established by the Constitution, can even deny persons access to bankruptcy as it sees fit. Id. at 447. Return to article
16 Brightful v. Penn. Ed. Assist. Agency, 267 F.3d 324 (3rd Cir. 2001); Ekanasi v. The Ed. Resources Inst., 325 F.3d 541 (4th Cir. 2003); In re Gerhardt, 348 F.3d 89 (5th Cir. 2003); Goulet v. Ed. Credit Manag. Corp., 284 F.3d 773 (7th Cir. 2002); In re Rifino, 245 F.3d 1083 (9th Cir. 2001); Ed. Credit Manag. Corp. v. Polleys, 350 F.3d 1302 (10th Cir. 2004); In re Cox, 338 F.3d 1238 (11th Cir. 2003). Return to article
20 In re Morris, 277 B.R. 910, 914 (Bankr. W.D. Ark. 2002); In re Fahrer, ___ B.R. ___, 2004 WL 557292 (Bankr. W.D. Mo. 2004); In re Morgan, 247 B.R. 776, 782 (Bankr. E.D. Ark. 2000) (citations omitted). Return to article
30 In re TMI Litig., 193 F.3d 613, 664 (3d Cir.1999); Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329,1338 (11th Cir. 2003) (expert must be "qualified to testify competently regarding the matters he intends to address."). Return to article
39 Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1112-1113 (5th Cir. 1991) (a medical degree "is not enough to qualify [a witness] to give an opinion on every conceivable medical question.... [The court must scrutinize the witness's] lack of specialized experience and knowledge."); Ferris v. Pennsylvania Federation Broth. of Maintenance of Way Employees, 153 F.Supp.2d 736, 743-745 (E.D. Pa. 2001) (excluding testimony of treating physician because his "lack of education and experience in the fields of psychiatry and/or psychology, aside from a course in medical school and other minimal training, prevented him from testifying as an expert on the diagnosis and treatment of depression and anxiety disorder); Olsen v. Marriott Intern. Inc., 75 F.Supp.2d 1052, 1056 (D. Ariz. 1999) (in discrimination action, doctor qualified to provide expert testimony regarding the issues of sexual abuse and gender was not qualified as expert on the impact of gender or sexual abuse on the massage experience where there was no evidence that the witness had "studied, taught, conducted research or written about the subject of psychological effects of massage" or had sufficient knowledge, training or experience to testify as an expert in the fields of psychiatry or psychology). See United States v. Zink, 612 F.2d 511 (6th Cir. 1980) (finding no error in not permitting doctor to testify as a psychiatry expert because he had not completed his residency in psychiatry); Everett v. Georgia-Pacific Corp., 949 F.Supp. 856 (S.D. Ga. 1996) (family practice physician not qualified as expert in toxicology); Cf. Castro v. Oklahoma, 71 F.3d 1502 (10th Cir. 1995) (expressing serious doubt specialist in child and geriatric psychology would qualify as an expert on the issues in the case, because a forensic psychologist or forensic psychiatrist would be more appropriate). Return to article
41 A court's decision to use judicial notice to fill in evidentiary problems in a debtor's case does not necessarily mean that the debtor is going to prevail. For example, in In re Pobiner (Pobiner v. Education Credit Management Corp.), 309 B.R. 405 (Bankr. E.D.N.Y. 2004), a debtor's failure to provide corroborating evidence from a physician or psychotherapist precluded the court from granting the hardship discharge based on a mental condition, Attention Deficit Hyperactivity Disorder (ADHD), that allegedly affected the debtor's ability to earn a living over significant portion of repayment period. However, the court did take judicial notice of some medical "facts" based on a review of medical literature. Return to article
54 Id. at 758; see, also, Smith v. Rasmussen, 57 F.Supp.2d 736, 766-67 (N.D. Iowa 1999) (collecting cases rejecting expert testimony "premised solely or primarily on a literature review."). Return to article