Doucette v. Jacobs ( 2024 )

United States Court of Appeals
For the First Circuit
No. 22-1915
RACHEL DOUCETTE, for herself and minor son, B.D.; MICHAEL
DOUCETTE, for himself and minor son, B.D.,
Plaintiffs, Appellants,
v.
CAROL C. JACOBS; MARGARET MAHER; CATHLEEN ESTEP, PH.D.; DONNA F.
STRAIGHT; TOWN OF GEORGETOWN, MASSACHUSETTS; GEORGETOWN SCHOOL
COMMITTEE; GEORGETOWN PUBLIC SCHOOLS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Judith G. Dein, U.S. Magistrate Judge]
Before
Kayatta, Lipez, and Gelpí,
Circuit Judges
Jacqueline B. Doherty, with whom Philip E. Murray, Jr. and
Murray & Bertrand, P.C. were on brief, for appellants.
Alexandra M. Gill, with whom Doulas I. Louison and Louison,
Costello, Condon & Pfaff, LLP were on brief, for appellees.
July 2, 2024
LIPEZ, Circuit Judge. B.D. is a child with significant
developmental disabilities. During the events at issue in this
litigation, he was a student at Georgetown Public Schools, where
he had an individualized education program ("IEP") as well as a
health and safety plan to manage seizures. B.D.'s parents, Rachel
and Michael Doucette ("the Doucettes" or "the family"), blame the
school district for a series of five severe seizures that B.D.
experienced at school in 2012. Accordingly, they sued the school
district and assorted personnel (collectively, "GPS" or "the
district") asserting, as relevant here, claims under 42 U.S.C.
§ 1983 for the violation of B.D.'s constitutional rights and under
Massachusetts tort law. The district court granted GPS's motion
for summary judgment, finding that a reasonable jury could neither
conclude that GPS engaged in the conscience-shocking conduct
necessary to sustain their constitutional claim nor that GPS was
liable under their state-law claims. We affirm.
I.
A. Factual Background
We draw our recitation of the facts from the summary
judgment "record -- pleadings, affidavits, depositions, [and]
admissions . . . —- viewing the evidence in the light most
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favorable to the party opposing summary judgment." Rivera-Colón
v. Mills, 635 F.3d 9, 12 (1st Cir. 2011).
1. B.D.'s GPS Enrollment and IEP
B.D. attended Perley Elementary School ("Perley" or "the
school") from July 2009, when he was three, until November 2012,
when he was six. B.D. has been diagnosed with numerous
developmental disorders, including Isodicentric Chromosome 15q
Duplication Syndrome, autistic spectrum disorder, and
attention-deficit hyperactivity disorder. He also has seizures,
sleep disturbances, anxiety, cognitive impairment, low muscle
tone, and balance deficits. He exhibits several "maladaptive
behaviors," such as bolting, episodes of aggression, and
difficulty communicating, including feelings of pain or
discomfort. Most pertinent here, B.D.'s condition is associated
with an increased risk of sudden unexpected death due to cardiac
or respiratory arrest, which is heightened by his seizure activity.
B.D. attended school with an IEP. See 20 U.S.C.
§ 1414(d). An IEP "spells out a personalized" and agreed-upon
plan by an educational team, including parents and guardians, "to
meet all of the . . . educational needs" of a "child[] with certain
physical or intellectual disabilities" to fulfill the federal
statutory guarantee of a "free appropriate public education"
("FAPE"). Fry v. Napoleon Cmty. Schs., 580 U.S. 154, 157-58
(2017). "[T]he IEP documents the child's current levels of
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academic achievement, specifies measurable annual goals for how
[the child] can make progress in the general education curriculum,
and lists the special education and related services to be provided
so that [the child] can advance appropriately toward [those]
goals." Id. at 158-59 (last alteration in original) (internal
quotation marks omitted) (quoting 20 U.S.C.
§§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa)). The precise details of
B.D.'s IEP changed over time, but its core requirements always
included the provision of a one-on-one aide to work with B.D., a
health and safety plan for B.D., speech and occupational therapy,
and an extended school year ("ESY") program. Every iteration of
the IEP also emphasized the importance of maintaining
"consistency" for B.D.
The Doucettes and GPS had a strained relationship
throughout the three years that B.D. attended GPS schools. Within
months of B.D. starting at Perley, the family began voicing
concerns to administrators and teachers about their adherence to
B.D.'s IEP and his safety at school, particularly after learning
that B.D. was sometimes left unsupervised. This lack of
supervision especially concerned the Doucettes because of B.D.'s
proclivity to bolt from class, which on one occasion resulted in
B.D. falling from a beanbag chair and hitting his head.
Eventually, the Doucettes pulled B.D. out of school from May until
September of 2010, though his IEP included ESY services.
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That summer, during B.D.'s removal from school, the
Doucettes requested a hearing before the Massachusetts Bureau of
Special Education Appeals ("BSEA"), seeking amendments to his IEP,
an out-of-district placement for B.D., and compensatory services
for the time he spent out of school. After a hearing in which
both parties were represented by counsel, a hearing officer
determined that B.D.'s IEP was inadequate as written and required
several amendments to incorporate Applied Behavioral Analysis
("ABA") principles of instruction, including regular consultation
with an ABA specialist.1 However, the hearing officer disagreed
with the Doucettes that an out-of-district placement was warranted
to provide B.D. with a FAPE, finding insufficient support for the
argument that Perley was an unsafe environment. The hearing
officer also rejected the Doucettes' request for compensatory
services, noting that their lack of cooperation with GPS, and
particularly removing B.D. from school, had prevented his IEP from
achieving its intended effect. Following the BSEA's decision,
B.D. returned to Perley in the fall of 2010 with a new IEP in
place.2
1The primary ABA methodology incorporated into B.D.'s
educational plan was "discrete trials training," which promotes
the development of desired skills or appropriate behaviors by
breaking that skill into very discrete components and using
repetition to reinforce that behavior.
Though the record contains few examples of safety-related
2
concerns during the 2010-11 school year, aside from the district's
handling of B.D.'s seizures discussed below, a couple of incidents
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2. B.D.'s Seizures
A primary concern of the Doucettes related to GPS's
handling of B.D.'s seizures. Because of the risks posed to B.D.'s
health, GPS and the Doucettes developed a "seizure action plan"
that identified the triggers of B.D.'s seizures and also specified
what to do if a seizure occurred. Initially, the seizure action
plan listed "sleep deprivation" and "fever" as triggers. As we
will discuss below, it was updated to include "stress" as well in
late July 2012.
In the Doucettes' view, GPS personnel did not always
handle B.D.'s seizures appropriately. In November 2010, for
instance, B.D. suffered a possible seizure at school, prompting
the Doucettes to raise concerns about two GPS staff members. More
specifically, after the incident, B.D.'s primary classroom teacher
asked the Doucettes for clarification about what to do in the event
of a seizure, leading the Doucettes to worry that the teacher, and
potentially others, had not been trained on B.D.'s seizure action
merit brief mention. First, during the 2010-11 school year, a
substitute bus driver brought B.D. to the wrong house, delaying
his arrival home with the Doucettes unsure of his whereabouts. On
two other occasions, a security officer asked B.D.'s mother to
move her car during student pickup time, though she was parked in
the agreed-upon spot for B.D.'s pickup, prompting her to tell the
school that it was not honoring its commitments and that the
suggested alternative spot was "illegal and inappropriate" and not
a "safe place" to pick up B.D.
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plan.3 The parents also asked for a nurse to be formally
disciplined for contacting B.D.'s neurologist about the event
without the parents' consent.4
B.D.'s seizure activity increased in the summer of 2011
and the 2011-12 school year. Among other actions, the Doucettes
worked with B.D.'s physicians to get the seizures under control,
including a period of seizure monitoring at Massachusetts General
Hospital ("MGH") in May 2012 and modifications to his medication
regime. They also coordinated with GPS to ensure B.D.'s safety at
school. In addition to his seizure action plan, the school
implemented a seizure tracking form and provided a seizure training
protocol for school personnel.
The Doucettes, however, remained unsatisfied with the
school's handling of B.D.'s seizures during the 2011-12 school
year. At times, the Doucettes felt the district was inept in
evaluating the severity and appropriate response to B.D.'s seizure
activity. For example, B.D.'s seizure action plan did not call
3 By contrast, the record contains several instances of the
Doucettes praising the one-on-one aide who worked with B.D. during
the regular school year and displayed knowledge of B.D.'s seizure
action plan and appropriate action pursuant to it.
4On another occasion, a substitute nurse's handling of a bump
to B.D.'s head suggested to the parents that she had been unaware
of B.D.'s increased risk of seizures. Around that time, the
Doucettes also asserted that the district's occupational therapist
was inadequate and demanded an alternative, though it is unclear
if that complaint was related to B.D.'s seizures.
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for him to be removed from school in the event of "non-emergent,
absence seizure/staring spells" or "atypical action seizures"
lasting fewer than three minutes.5 Nonetheless, on three
occasions, the school sent B.D. home due to seizures of this
nature, prompting the Doucettes to produce a note from B.D.'s
physician instructing GPS to keep B.D. in school absent "signs of
acute illness." At other times, however, the family felt the
district failed to take the risks to B.D.'s health seriously enough
-- such as when no nurse was assigned to accompany and monitor
B.D. during an off-campus field trip, contrary to B.D.'s IEP and
health and safety plan. While B.D. did not suffer any injury
during this trip, the Doucettes expressed their frustration with
GPS over this "violat[ion] [of] our trust," questioning the school
district's commitment to safeguarding B.D.'s wellbeing.6
The Doucettes also took issue with an increase to B.D.'s
"inclusion time" -- the amount of time B.D. spent integrated with
non-disabled peers -- during the 2011-12 school year. While
B.D.'s inclusion time had previously been in the range of 0-39
5 The absence-type seizures that B.D. experienced were
generally of a short duration and characterized by long staring
episodes, unresponsiveness, eye-rolling, and little movement aside
from hand tremors and eye blinking.
6 The record reflects that the Doucettes unsuccessfully
renewed their effort to obtain an out-of-district placement for
B.D. at the conclusion of the 2011-12 school year, though it does
not provide context for this request.
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percent, it increased to up to 80 percent that year. In response,
the Doucettes provided the school with a report from B.D.'s
neurologist connecting this change with an increase in B.D.'s
anxiety and aggression and recommending a reduction in his
inclusion time.
Another point of contention was B.D.'s service dog,
McCloud. In the fall of 2011, McCloud began assisting B.D. with
his balance and anxiety, with McCloud alerting when B.D. was
experiencing a seizure. When the Doucettes sought to add McCloud
to B.D.'s IEP, GPS initially expressed openness to the idea.
However, GPS also insisted on first conducting a behavioral
assessment of McCloud and pushed back on the Doucettes' request
that the school handle and care for McCloud during school hours.
Eventually, in July 2012, GPS permitted McCloud to accompany B.D.
to school, with B.D.'s mother serving as the dog's handler. Later
that month, B.D.'s IEP was formally amended to include a service
animal provided by the Doucettes.
3. The 2012 ESY Program
Most significant to the Doucettes' claims are the events
concerning B.D.'s 2012 ESY program, which ran between June and
August of 2012. The program was plagued with what the Doucettes
considered to be serious deficiencies. For starters, GPS moved
its location to Penn Brook Elementary School ("Penn Brook"), due
to construction at Perley, without informing the Doucettes of this
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change. Though the decision was made before the end of February
2012, and the Doucettes had an IEP meeting with the school on April
9, they did not learn about the move until a public school board
meeting later that month. Eventually, the Doucettes begrudgingly
assented to the new location but reiterated the importance of the
program being "100% compliant with [B.D.'s] IEP . . . , as we will
not tolerate lack of planning or management effectiveness as reason
to jeopardize our son's well being."
Despite that admonition, the ESY program did not get
off to a smooth start. A few days before the program began, B.D.'s
mother took him to Penn Brook to acclimate him to the unfamiliar
environment. Based on her observations, the family was certain
that "GPS [had] made no attempt to work on a transition plan for
[B.D.] regarding the drastic change in location and staff." Among
other things, the classroom lacked a proper workspace or supplies,
and the playground -- which was shared with a summer day camp for
older children -- lacked appropriate equipment and a fence.7 In
response, GPS's superintendent personally promised to rectify
these issues before the program began.
Nonetheless, on the program's first day, B.D.'s
classroom was still missing certain equipment to which he had grown
7The record does not reflect any inadequacy in the playground
once the program began. However, B.D.'s mother did raise one
safety concern regarding a delivery truck that parked in the
playground area one day.
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accustomed at Perley, including his Rifton chair,8 a slant board,9
and some toys and devices used to reinforce positive behavior
("reinforcers"). GPS brought many of these items, including the
chair and slant board, to Penn Brook within a few days, and the
school made many other reinforcers available to B.D., if not always
the exact ones he had previously used. In the meantime, ESY staff
made a makeshift slant board out of cardboard.
The Doucettes also raised concerns about the adequacy
and qualifications of ESY staff and about the consistency with
which ESY staff implemented B.D.'s IEP. Regarding the adequacy of
staffing, one aide assigned to B.D. lacked prior experience in
special education, though she was supervised by experienced staff
members and was trained on B.D.'s IEP and seizure action plan.10
Regarding consistency, the Doucettes took issue with the
amount of staff turnover. For instance, the program was not
staffed with the speech pathologist with whom B.D. normally worked
-- an abrupt change due to the speech pathologist's allergy to
McCloud, with no overlapping training period for her replacement.
8 A Rifton chair provides adjustable, supportive seating to
help maintain the user's posture at appropriate angles.
9 A slant board is an angled surface that helps the user hold
material for reading or writing.
10 There is no dispute that the other two aides who worked
with B.D. that summer, as well as the Board-Certified Behavioral
Analyst who supervised their activity, were well qualified.
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In her deposition, B.D.'s mother also described the ESY program as
inconsistently implementing elements of B.D.'s daily routine, such
as providing B.D. time to eat breakfast or showing him a picture
schedule as preparation for transitions throughout the day.
4. B.D.'s Severe Seizures
B.D. experienced four seizures while at school during
the 2012 ESY program -- on July 5, July 18, July 31, and August 6.
The first lasted 40 minutes and necessitated the rectal
administration of Diastat gel by a school nurse and a trip to the
hospital by ambulance. Following this seizure, B.D.'s mother and
McCloud began attending school with B.D., though in none of the
remaining instances of B.D.'s seizures did McCloud alert to the
seizure, nor did B.D.'s mother notice any signs of stress or any
warning signs of seizure.
B.D.'s second seizure lasted 25 minutes and again
resulted in the administration of Diastat gel and his transfer to
the hospital by ambulance. Following this seizure, the Doucettes
again consulted with B.D.'s neurologist, who observed that B.D.'s
seizure activity was becoming more frequent but did not opine about
the cause. A few weeks later, however, the neurologist signed a
new seizure action plan that added stress as a seizure trigger.11
11Sometime during or after the summer of 2012, B.D.'s
physicians also "significant[ly] increased . . . [B.D.'s] anti-
seizure medications" to address his seizure activity.
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B.D.'s other two seizures that summer followed the same
general pattern, the third seizure lasting 23 minutes, and the
fourth lasting at least 15 minutes. On both occasions, B.D. was
administered Diastat gel and transported to the hospital by
ambulance. Following B.D.'s fourth seizure, the Doucettes removed
him from school for the remainder of the summer.
The Doucettes believed that the poor execution of the
ESY program -- and, in particular, the lack of consistency in
equipment, staffing, and program implementation -- was to blame
for B.D.'s seizures by causing stress and anxiety that triggered
the seizures. They again consulted B.D.'s neurologist, who
produced a letter stating that B.D.'s current school program had
been inadequate in terms of managing his seizures and that the
likely trigger of the seizures was "increased anxiety at his school
program." The letter also recommended that GPS and the Doucettes
revise B.D.'s IEP to allow for "appropriate placement" and that
B.D. remain out of school in the interim.
Subsequently, the Doucettes met with GPS to discuss
B.D.'s IEP, with the parties evidently agreeing that B.D. should
resume attending Perley at the beginning of the 2012-13 school
year and have Perley's program observed by an independent third
party.12 In a follow-up communication, a GPS administrator
In an email following the meeting, the Doucettes objected
12
to keeping B.D. at Perley. The resolution of this dispute is not
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cautioned the Doucettes that "[a]ny extended absence will be
considered truancy."
On September 5, 2012, the first day of the new school
year, B.D. experienced another seizure upon arriving at school
with his mother via school bus. The seizure lasted up to 20
minutes and once again necessitated the administration of Diastat
gel and ambulance transport to the hospital. Hospital records
characterize the seizure as an "absence-type seizure (his usual
per mother who was present)" and a "staring episode."13 At a
meeting a few days later, the Doucettes informed GPS that they
would not allow B.D. to return to school.
apparent in the record; however, it is undisputed that B.D.
returned to Perley at the beginning of the 2012-13 school year.
13 The parties dispute the severity of the five seizures
discussed above. The Doucettes characterize them as tonic-clonic
seizures, which are more dangerous than the absence seizures B.D.
had previously experienced. The record contains no formal
diagnosis supporting that conclusion, and school staff reported
that the seizures appeared no different than B.D.'s previous
seizures. GPS also produced expert testimony opining that B.D.'s
seizures were not tonic-clonic seizures.
However, the first responder notes describe several of these
seizures as "grand mal" seizures, an equivalent medical term for
tonic-clonic seizures. Moreover, it does not appear that B.D. had
previously been administered Diastat gel or transported to the
hospital for any other seizures suffered at school besides these
five seizures, or that any of his other seizures lasted nearly as
long. Construing the record in the Doucettes' favor, Rivera-Colón,
635 at 12, we conclude that a reasonable jury could, at the very
least, determine that the five seizures were more severe than those
B.D. had previously experienced. Ultimately, however, the
severity of the seizures is not significant to the outcome of the
Doucettes' claims.
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Thereafter, the Doucettes obtained medical opinions
recommending an "outside placement" for B.D. that included
consistent, year-round ABA-based programming rather than an ESY
program, in a "small" and "specialized" setting rather than a
"large, fast-pace public school setting." Following an extended
evaluation period, GPS agreed to an out-of-district placement at
the Greater Lawrence Educational Collaborative ("GLEC").
B.D. attended GLEC for nearly two years, during which
time his neurologist reported that B.D. was "doing very well" and
that the switch to GLEC "had a positive impact on essentially all
aspects of his health and development." In March 2014, however,
B.D. experienced what his neurologist's notes describe as a
psychotic episode, characterized by "increased aggression,
paranoia and hallucinations," as well as "agitation" and
"dysregulation." This episode did not involve any seizures. He
was admitted to MGH for one week and then Hampstead Hospital in
New Hampshire for three months. Afterwards, B.D. began attending
a residential and educational program at the Berkshire Meadows
School in Massachusetts ("Berkshire Meadows"), where he made
"excellent progress on a strict behavioral program with lots of
consistency, structure, and a positive approach." B.D. has not
experienced a seizure since leaving GPS.
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B. Procedural Background
The Doucettes originally filed their complaint in
Massachusetts state court, with GPS removing the case to federal
court. In their complaint, the Doucettes allege a count under 42
U.S.C. § 1983 for various violations of constitutional and
statutory rights, including B.D.'s substantive due process rights
under the Fourteenth Amendment, a count under section 504 of the
Rehabilitation Act, 29 U.S.C. 794, and state tort claims for
negligence, negligent infliction of emotional distress,
intentional infliction of emotional distress, and loss of
consortium. The district court initially granted judgment on the
pleadings for GPS on the federal claims based on the Doucettes'
failure to exhaust administrative remedies. See Doucette v.
Jacobs, 288 F. Supp. 3d 459, 463-64 (D. Mass. 2018) ("Doucette
I"). However, we vacated that judgment, finding the exhaustion
requirement of the Individuals with Disabilities Education Act
("IDEA") inapplicable to some of their claims and satisfied as to
others, see Doucette v. Georgetown Pub. Schs., 936 F.3d 16, 19
(1st Cir. 2019) ("Doucette II").14
As we recognized in our prior opinion, the Doucettes waived
14
§ 1983 claims related to procedural due process, equal protection,
and B.D.'s rights under the Rehabilitation Act and the IDEA.
Doucette II, 936 F.3d at 28 n.18. They have also voluntarily
dismissed their negligence and negligent infliction of emotional
distress claims against the individual defendants. Doucette v.
Jacobs, No. 15-13193, 2022 WL 2704482, at *1 n.1 (D. Mass. July
12, 2022).
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On remand, the district court granted GPS's motion for
summary judgment on all counts. See Doucette v. Jacobs, No.
15-13193, 2022 WL 2704482 (D. Mass. July 12, 2022) ("Doucette
III"). As to the substantive due process claim, the district court
held that a reasonable jury could not find that GPS engaged in the
conscience-shocking behavior necessary to sustain such a claim.
Id. at *1, **12-26. On the Rehabilitation Act claim, the district
court observed that the Doucettes had waived what had theretofore
been their primary theory, which is that GPS had discriminated
against B.D. by its resistance to B.D.'s service dog accompanying
him to school, and found the claim otherwise meritless. Id. at
*26. Finally, the district court granted summary judgment to GPS
on the state-law claims, finding its analysis of the federal claims
to compel that result. Id. at *27.
Of particular significance to this appeal, in reaching
its decision, the district court exercised its "gatekeeping role"
under Federal Rule of Evidence 702 to exclude from the summary
judgment record an expert report by Dr. Sue X. Ming. Dr. Ming's
report concluded that GPS's failures to meet B.D.'s IEP
requirements and lack of consistency in implementing the 2012 ESY
program "caused the dramatic increase in his seizure activity,"
which produced a significant regression in his physical,
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cognitive, and developmental condition.15 Id. at *23. The district
court found that the report was inadmissible because it was vague
and ignored important events in the record, particularly the two
years B.D. spent at GLEC and his later psychotic episode.
The district court denied the Doucettes' motion to alter
or amend the judgment, and this timely appeal ensued. On appeal,
the Doucettes challenge the district court's rejection of their
§ 1983 and state-law claims,16 while also arguing that the court's
exclusion of Dr. Ming's report was an abuse of discretion.
II.
We begin with the Doucettes' contention that the
district court abused its discretion by excluding Dr. Ming's expert
report under Rule 702.
15Putting Dr. Ming's report aside, the record contains little
information clarifying how B.D.'s present condition compares to
his condition while at GPS, including the extent to which he
experienced developmental regression attributable to his five
severe seizures. Ultimately, this question does not prove relevant
to the issues on appeal.
16In their opening brief, the Doucettes devote only half a
sentence to the merits of their Rehabilitation Act claim. At oral
argument, moreover, when asked to clarify whether they were
continuing to pursue that claim the Doucettes' counsel offered no
analysis of it, instead discussing how the events that had been
the focus of that claim -- GPS's pushback on the service
dog -- supported their constitutional claim. Because the
Doucettes have developed no appellate argument regarding their
Rehabilitation Act claim, we deem them to have waived that issue.
See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
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A. Standard of Review
We give the district court "as much leeway in dealing
with [evidentiary] matters at the summary judgment stage as at
trial." Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23,
31-32 (1st Cir. 2004). Accordingly, we review a district court's
evidentiary rulings in the lead up to summary judgment for abuse
of discretion. See Williams v. Am. Honda Fin. Corp., 907 F.3d 83,
86 (1st Cir. 2018). Under this "deferential" standard, we will
disturb the district court's decision only if "the court committed
a clear error of judgment," mindful that we must not displace the
district court's judgment with our own. Alt. Sys. Concepts, 374
F.3d at 32.
B. Exclusion of the Expert Report
Under Federal Rule of Evidence 702,17 a district court
may properly exclude unreliable, and therefore inadmissible,
17 At the time of the district court's summary judgment ruling,
Rule 702 provided, in full:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if: (a) the expert's
scientific, technical, or other specialized
knowledge will help the trier of fact to
understand the evidence or to determine a fact
in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is
the product of reliable principles and
methods; and (d) the expert has reliably
applied the principles and methods to the
facts of the case.
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expert testimony when deciding a motion for summary judgment. See,
e.g., Rodríguez v. Hosp. San Cristobal, Inc., 91 F.4th 59, 69-72
(1st Cir. 2024). The court ought not do so "profligately,"
however, as "[a] trial setting normally will provide the best
operating environment for [such] triage." Cortés-Irizarry v.
Corporación Insular de Seguros, 111 F.3d 184, 188 (1st Cir. 1997).
Accordingly, we must decide if the district court exercised its
discretion reasonably in ruling that Dr. Ming's expert report
represented one of those clear-cut cases because the report's
"defects [we]re obvious on the face of [the] proffer." Id.The objective of the "flexible" inquiry envisioned by
Rule 702 is to ascertain "the scientific validity and thus the
evidentiary relevance and reliability" of the proffered expert
testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
594-95 (1993). "The focus, of course, must be solely on principles
and methodology, not on the conclusions that they generate." Id.
at 595. Therefore, "'[w]hen the factual underpinning of an
Fed. R. Evid. 702 (2011). In 2023, Rule 702 was amended to directly
state that the proponent of the expert testimony must establish
these reliability requirements by a preponderance of the evidence,
a principle already established in our case law. See Bricklayers
& Trowel Trades Int'l Pension Fund v. Credit Suisse Sec. (USA)
LLC, 752 F.3d 82, 96 (1st Cir. 2014) ("The proponent . . . must
prove by a preponderance of the evidence that the [expert]
testimony is reliable." (quoting Moore v. Ashland Chem. Inc., 151
F.3d 269, 276 (5th Cir. 1998))).
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expert's opinion is weak,'" -- because, for instance, the expert's
conclusion is arguably contradicted by aspects of the record -- but
the expert's methodology itself is sound, that "'is a matter
affecting the weight and credibility of the testimony' and thus 'a
question to be resolved by the jury.'" Rodríguez, 91 F.4th at 70
(quoting Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d
11, 22 (1st Cir. 2011)).
A district court is well-justified in striking opinion
testimony that depends upon "the ipse dixit of the expert" or that
evinces significant "analytical gap[s] between the data and the
opinion proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997). Thus, an expert's "failure to point to and consider
material" elements of the record she purports to be analyzing can
be grounds for a district court's exclusion of the proffered
testimony. González-Arroyo v. Doctors' Ctr. Hosp. Bayamón, Inc.,
54 F.4th 7, 15 (1st Cir. 2022). So too can the expert's failure
to "explain [a] conclusory finding" by reference to the facts at
hand or by connecting those facts to relevant insights drawn from
the expert's applied methodology or the academic literature.
López-Ramírez v. Toledo-González, 32 F.4th 87, 95 (1st Cir. 2022)
(internal quotation marks omitted).
The district court identified several such defects when
determining that Dr. Ming's expert report fell below the requisite
standard of reliability. For one thing, the court observed that
- 21 -
Dr. Ming's report depended on "generalized description[s]" of the
record, lumping together events without accounting for their
individual significance. Doucette III, 2022 WL 2704482, at *24.
For instance, Dr. Ming accused GPS of failing to meet "several of
B.D.'s IEP requirements" without explaining which requirements
they failed to satisfy or how each failure impacted B.D. Id. And
she decried an "unusually high number of changes" to B.D.'s
learning environment without describing those changes, explaining
their abnormality, or addressing how they affected him. Id.Similarly, she concluded that B.D.'s stress at school caused his
seizures without explaining where she derived her assumption that
B.D. was stressed when he experienced seizures or that GPS's
actions caused the stress.
The district court was especially concerned by Dr.
Ming's omission of critical facts in her expert report. For
instance, when addressing the inconsistency with which GPS
implemented B.D.'s IEP during the ESY program, the report noted
that several of B.D.'s reinforcers were missing from Penn Brook
when the program began. But the report did not acknowledge that
the school obtained these items, or substitutes, within a few days
or explain how (or if) these actions influenced the analysis. This
omission was particularly notable because the reinforcers were
restored several days before any of B.D.'s seizures occurred. Even
more troubling to the district court, in concluding that any
- 22 -
regression in B.D.'s present condition was caused by his seizures
in 2012 (and thus arguably attributable to GPS), Dr. Ming's report
entirely ignored that B.D. had spent two years in another school
before arriving at his current residential placement at Berkshire
Meadows.18 Moreover, during those two years, his doctors indicated
that his condition largely was on a positive trajectory, but he
also suffered a serious psychotic episode that precipitated his
residential placement. The report offered no analysis of these
events and their effect, if any, on B.D.'s present condition.
The district court found that Dr. Ming's failure to even
consider these aspects of the record was "simply too great an
analytical gap" to ignore. Id. (quoting McGovern ex rel. McGovern
v. Brigham & Women's Hosp., 584 F. Supp. 2d 418, 426 (D. Mass.
2008); see also Gen. Elec., 522 U.S. at 146. Although the
Doucettes argue that the district court, in raising these concerns,
impermissibly took aim at Dr. Ming's reasoning and conclusions,
rather than the reliability of her scientific methods, we disagree.
Fundamentally, Dr. Ming's failure to ground her conclusions in the
specifics of the record -- or even to consider key aspects of the
record -- meant that the report fell short of Rule 702's
18 The Doucettes point out that Dr. Ming's report does
acknowledge these events in an attached "Summary of Pertinent
Records." The district court's objection, however, was not that
Dr. Ming was ignorant of these events. Rather, the court faulted
Dr. Ming for opining on GPS's role in B.D.'s condition while
ignoring these events.
- 23 -
requirements that her "testimony [be] based on sufficient facts or
data" and that she "reliabl[y] appl[y] the principles and methods
to the facts of the case." Fed. R. Evid. 702(b), (d). We therefore
discern no abuse of the court's discretion in the substance of its
well-supported decision to exclude Dr. Ming's expert testimony.
The Doucettes also raise procedural objections,
specifically that the district court struck Dr. Ming's expert
report without a Daubert hearing or an opportunity for the
Doucettes to brief the issue. As for the lack of a Daubert hearing,
we have made clear that no such hearing is required when, as here,
no novel issue is at stake. See, e.g., González-Arroyo, 54 F.4th
at 15. Likewise, the district court's decision to strike Dr.
Ming's expert report sua sponte was well within its discretionary
gatekeeper role. After all, the district court "must have
considerable leeway in deciding in a particular case how to go
about determining whether particular expert testimony is
reliable." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999);
see also González-Arroyo, 54 F.4th at 15 (rejecting argument that
district court should have sua sponte ordered a Daubert hearing
before excluding evidence and stressing that "there is no
particular procedure that [the court] is required to follow" absent
a novel issue (internal quotation marks omitted) (alteration in
original)). Here, for the reasons described above, the inadequacy
of the report's reasoning was "obvious on [its] face,"
- 24 -
Cortes-Irizarry, 111 F.3d at 188, and thus excluding the report
sua sponte was not an abuse of discretion.
III.
We now turn to the Doucettes' appeal of the district
court's summary judgment for GPS on their preserved claims under
§ 1983 and Massachusetts law. Our review of a district court's
summary judgment decision is de novo. See, e.g., Theidon v.
Harvard Univ., 948 F.3d 477, 494 (1st Cir. 2020). Our task is to
determine whether there is any genuine dispute of material fact
that would preclude judgement in GPS's favor as a matter of law.
Id.A. Section 1983 Claim
The Doucettes claim that GPS violated B.D.'s Fourteenth
Amendment substantive due process rights. As we previously
summarized, their theory is that GPS's "conduct amounted to
deliberate indifference and severe, pervasive disregard for the
safety and well-being of B.D. and that, as a result, B.D. suffered
great physical and emotional harm, including five life-threatening
tonic-clonic seizures." Doucette II, 936 F.3d at 29 (internal
quotation marks and brackets omitted).
1. Background Law
In cases involving "executive" (as opposed to
"legislative") action, our substantive due process precedents
demand that we first determine whether the defendants' conduct
- 25 -
"shocks the conscience." See Martínez v. Cui, 608 F.3d 54, 63-64
(1st Cir. 2010); see also County of Sacramento v. Lewis, 523 U.S.
833, 846 (1998). Here, it is undisputed that the conduct at
issue -- all of which involved GPS's implementation of B.D.'s IEP
and its adherence to his health and safety plan -- was executive
action. Thus, only if the facts cross the shocks-the-conscience
threshold should we move on to assess whether GPS violated B.D.'s
fundamental rights.
While the shocks-the-conscience standard is "no
calibrated yard stick," Lewis, 523 U.S. at 847, the "test is an
extremely demanding one, . . . limit[ing] executive action only
when that action 'was infected or driven by something much
worse -- more blameworthy -- then mere negligence, or lack of
proper compassion, or sense of fairness.'" González-Fuentes v.
Molina, 607 F.3d 864, 885 (1st Cir. 2010) (quoting Hawkins v.
Freeman, 195 F.3d 732, 746 (4th Cir. 1999) (en banc)).
Accordingly, we will not find a substantive due process violation
where the record contains "no act so extreme, egregious, or
outrageously offensive as to shock the contemporary conscience."
DePoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005); see also
González-Droz v. González-Colón, 660 F.3d 1, 16 (1st Cir. 2011)
("To sink to [the] level" of conscience-shocking, the challenged
conduct must be "'truly outrageous, uncivilized, and
- 26 -
intolerable.'" (quoting Hasenfus v. LaJeunesse, 175 F.3d 68, 72
(1st Cir. 1999))).
The determination as to whether conduct "shocks the
conscience" is "necessarily fact-specific and unique to the
particular circumstances." González-Fuentes, 607 F.3d at 881(quoting Cruz-Erazo v. Rivera-Montañez, 212 F.3d 617, 623 (1st
Cir. 2000)). "[W]here government officials must act in haste,"
for instance, only actions "undertaken maliciously and
sadistically for the very purpose of causing harm" will suffice.
Coyne v. Cronin, 386 F.3d 280, 288 (1st Cir. 2004). On the other
hand, "[w]here actual deliberation on the part of a governmental
defendant is practical," "deliberate indifference" can constitute
"conscience-shocking activity." Id. To establish deliberate
indifference, the plaintiff must show "at a bare minimum," that
the defendant "actually knew of a substantial risk of serious harm"
but "disregarded that risk." Id.We have acknowledged that schools may have a duty under
the Due Process Clause to protect students when faced with specific
known hazards or perils, particularly when it comes to students
who are "manifestly unable to look after themselves," such as "very
young children." Hasenfus, 175 F.3d at 72.19 We cautioned,
We further noted that "due process constraints may exist"
19
when "a state official acts so as to create or even markedly
increase a risk." Hasenfus, 175 F.3d at 73; see also Irish v.
- 27 -
however, that to shock the conscience, only a case with truly
"pungent" or "outrageous" facts could support a constitutional
claim that a school acted with deliberate indifference. Id. at
72-73. Accordingly, in Hasenfus we declined to hold a school
liable under the Due Process Clause for a high school student's
suicide attempt at school after a teacher harshly reprimanded her
and sent her to an unsupervised location, finding that these
unfortunate facts exhibited no conscious disregard of a known risk
to the student, or that the teacher "acted maliciously to cause
harm." Id. at 73.
2. Discussion
The Doucettes focus primarily on GPS's errors during
the 2012 ESY program, which preceded and are most closely linked
in time to B.D.'s final five seizures. To be sure, GPS made
mistakes, some of which are troubling. There is the absence of
B.D.'s accustomed reinforcers at the beginning of the program, and
in particular GPS's decision to temporarily replace his slant board
with a makeshift cardboard device. It was reasonable for the
Doucettes to expect B.D.'s special education team to know and
understand -- particularly in light of the requirement for
"consistency" in B.D.'s IEP -- that B.D. had difficulty adapting
to unexpected changes. By extension, it seems reasonably
Fowler, 979 F.3d 65, 75 (1st Cir. 2020) (recognizing availability
of a "state-created danger" substantive due process claim).
- 28 -
foreseeable that B.D. would experience stress or anxiety if
deprived of accustomed equipment or asked to use a crude cardboard
alternative. Indeed, several days before the ESY program began,
B.D.'s mother pointed out that B.D.'s classroom at Penn Brook
lacked these items and that this could make the transition to a
new school environment even more difficult. That GPS nonetheless
did not have B.D.'s reinforcers ready was a notable failure.
It does not, however, shock the conscience. GPS quickly
rectified the issue, bringing B.D.'s reinforcers to his classroom
within a few days. Although that promptness does not excuse the
breakdown in preparedness, it does undermine the Doucette's claim
that the school's sloppiness reflected deliberate indifference to
B.D.'s safety, an essential element of their substantive due
process claim. See, e.g., Melissa S. v. Sch. Dist. of Pittsburgh,
183 F. App'x 184, 188-89 (3d Cir. 2006) (finding no deliberate
indifference in school district's alleged failure to adhere to
student's IEP where the school rectified the lapse "almost
immediately"). True, B.D.'s IEP also called for "consistency,"
but that does not mean that any deviation from B.D.'s routine,
especially when quickly rectified, amounts to the sort of
"outrageous, uncivilized, [or] intolerable" conduct that shocks
the conscience.20 Hausenfus, 175 F.3d at 72.
20We note that GPS supplied an expert report opining that the
school "complied with the consistency element of B.D.'s IEP,"
- 29 -
Nor do any of GPS's other missteps during the ESY
program rise to the level of conscience-shocking. Other lapses in
preparation, such as the absence of a fence in the playground,
were also quickly rectified, again showing GPS's efforts to attend
to B.D.'s needs, if belatedly, rather than indifference to them.
And while the Doucettes were upset about the program's location
change, the reason for that change -- extensive construction at
Perley -- was clearly reasonable. The Doucettes focus on the
timing of the school's notice to them of the change -- and the
record does support that GPS could have informed them sooner.
Nonetheless, they did learn of the change well ahead of time,
approximately two months before the program began.
Finally, the record does not reflect any serious
shortcomings in the competency of ESY staff or their adherence to
B.D.'s seizure plan that summer. Though one of B.D.'s aides lacked
experience, the record establishes that she was qualified for the
position and given relevant training, and she was not the sole
provider in any event. Likewise, there are no documented examples
of any other ESY personnel causing B.D. stress or anxiety at the
notwithstanding that B.D.'s exact reinforcers were initially
missing. By contrast, the Doucettes have produced no expert
testimony corroborating their assertion that the school acted
unreasonably in failing to have B.D.'s exact reinforcers on hand
at the beginning of the ESY program, let alone that this lapse
caused him to experience stress or anxiety that ultimately caused
his seizures.
- 30 -
times that he suffered any of his seizures, or any oversight on
their part that a seizure was impending. Indeed, although B.D.'s
mother and McCloud were present for all but B.D.'s first seizure,
McCloud never alerted to any seizure or increased stress or
anxiety, and B.D.'s mother testified that she did not notice any
such signs. We thus fail to see how a reasonable jury could
ascribe to GPS any deliberately indifferent conduct giving rise to
or exacerbating B.D.'s seizures.
Looking beyond the summer of 2012, we likewise do not
observe any of the "pungent" or "outrageous" facts necessary to
establish GPS's deliberate indifference to B.D.'s needs.
Hasenfus, 175 F.3d at 72-73. The Doucettes claim that GPS was
cavalier with regard to B.D.'s seizure action plan, but this
assertion is not supported by the record. To be sure, the incident
during which B.D. attended a field trip without a nurse assigned
to him is troubling, particularly because the Doucettes had
reiterated to his educational team just days earlier the importance
of assigning a nurse to B.D. on field trips. Yet the record also
unequivocally shows that the school immediately sought to correct
the situation, informing the Doucettes of the error and quickly
implementing new procedures to ensure that it would not happen
again -- and the record does not reveal that it ever did happen
- 31 -
again.21 Once again, this episode does not meet the "minimum"
requirement of disregard for known risks to B.D.'s health, see
Coyne, 386 F.3d at 288; see also Hasenfus, 175 F.3d at 68(rejecting even "seriously negligent" conduct as rising to the
level of conscience-shocking).
As for the times when individual school personnel
appeared unfamiliar with B.D.'s seizure action plan or some of its
details, none of these incidents reveals any deliberate disregard
for B.D.'s health or safety. For instance, it is understandable
that a substitute nurse would be less familiar with the seizure
action plan than the regular nurse.22 Moreover, several of the
Doucettes' complaints regarding familiarity with the seizure
action plan -- such as when the school wrongly sent B.D. home due
to less serious seizure activity, when the school nurse contacted
B.D.'s neurologist without the Doucettes' consent, or when B.D.'s
classroom teacher asked for clarification about the seizure action
plan -- reflect GPS personnel exercising extra caution regarding
B.D.'s seizures. It may have been preferable for school personnel
21 Moreover, there were several staff members on the field
trip who had been trained on B.D.'s medical needs, including
another nurse (just not one assigned to him specifically).
22 Similarly, it is understandable that a substitute bus
driver could make a one-time mistake on B.D.'s bus route without
that event amounting to a display of deliberate indifference.
Likewise, a security officer's unfamiliarity with B.D.'s mother's
appointed pick-up zone is also not evidence of deliberate
indifference.
- 32 -
to have better understood B.D.'s seizure action plan. It is
understandable that the Doucettes felt these incidents unmasked
worrisome gaps in GPS's understanding of their son's medical needs
and educational plan. But none of these episodes shows that GPS
was indifferent to the risk of B.D.'s seizures. Indeed, if
anything, they show precisely the opposite.
Nor do we find that any of the events concerning B.D.'s
service dog demonstrate deliberate indifference. Indeed, the
record shows that GPS was open to having McCloud accompany B.D. to
school.23 The school's insistence on assessing the dog's behavior
in school and its expectation that the Doucettes would handle and
care for McCloud at school reflect the school's reasonable desire
to prevent this accommodation from being disruptive to the
educational environment. Moreover, following B.D.'s first seizure
during the 2012 ESY program, GPS adjusted its position on the
service dog in deference to B.D.'s needs, allowing McCloud to
accompany B.D. to school with B.D.'s mother as his handler and
23 The Doucettes highlight that in one email GPS
superintendent Carol Jacobs said "OK let the games begin" in
reference to a planned visit by B.D.'s mother to school to do a
behavioral assessment with McCloud. As the district court noted,
in context, this remark does not carry any mocking tone. Indeed,
in the next sentences, Jacobs went on to say "Seriously, do we
feel that everything is all set? I am looking at this as an
opportunity for [B.D.'s mother] to see that the work that you are
all doing is awesome."
- 33 -
ultimately agreeing to amend B.D.'s IEP to include a service animal
sooner than anticipated.
Lastly, GPS's repeated refusal to agree to an
out-of-district placement also does not shock the conscience.
GPS's initial opposition to an out-of-district placement was
validated by the holding of the BSEA hearing officer, who found no
evidence that B.D. was unsafe at Perley. The Doucettes acquiesced
to that determination and, indeed, kept B.D. at Perley for more
than a year longer, agreeing to that placement on several
additional occasions, even after the 2012 ESY program. While the
Doucettes argue that the remark that B.D.'s absence would be
considered truancy amounted to coercion to keep B.D. placed at
Perley, we do not think a reasonable jury could reach that
conclusion. In context, it is clear this remark was not a threat
meant to force B.D.'s return to Perley but simply reflected the
school's view that B.D.'s return was in his best interest and that,
in light of the parties' recent history, there was reason to doubt
that the Doucettes would adhere to the agreed-upon placement at
Perley. Moreover, once again, GPS adjusted its position when
B.D.'s seizure activity became more severe and the Doucettes
produced medical opinions backing up their request for an
out-of-district placement. It is impossible to conclude that GPS's
measured and ultimately flexible approach to that question
demonstrated indifference to B.D.'s well-being.
- 34 -
In short, because a reasonable jury could not conclude
from this summary judgment record that GPS was so deliberately
indifferent to B.D.'s health that it shocks the conscience, we
affirm the district court's grant of summary judgment to GPS on
the Doucettes' § 1983 claim.
B. State-Law Claims24
1. Negligence
The Doucettes assert that GPS acted negligently in
carrying out B.D.'s IEP and his health and safety plan, causing
the five severe seizures he suffered in the summer and fall of
The district court exercised supplemental jurisdiction over
24
the Doucettes' state-law claims. See 28 U.S.C. § 1367. When, as
here, the federal claims upon which supplemental jurisdiction is
premised fall out of the case, the district court "must reassess
its jurisdiction" before retaining jurisdiction over the state-law
claims. Camelio v. Am. Fed'n, 137 F.3d 666, 672 (1st Cir. 1998);
see also 28 U.S.C. § 1367(c)(3). This assessment depends upon a
"'pragmatic and case-specific evaluation of a variety of
considerations,' including 'the interests of fairness, judicial
economy, convenience, and comity'" as the litigation presently
stands. Desjardins v. Willard, 777 F.3d 43, 45 (1st Cir. 2015)
(quoting Camelio, 137 F.3d at 672).
In its first decision, after dismissing the federal claims on
exhaustion grounds, the district court remanded the state claims
to state court. See Doucette I, 288 F. Supp. at 463-64. Here,
after our remand to the district court in Doucette II, the district
court implicitly reassessed its supplemental jurisdiction in
finding that the state-law claims easily failed for reasons similar
to those supporting dismissal of the federal claims. See Doucette
III, 2022 WL 2704482 at *27. We agree with the district court's
assessment that the exercise of supplemental jurisdiction was
proper, as the state-law claims litigated in this case for several
years do not require us to wade into complex or unsettled areas of
state law. See Zell v. Ricci, 957 F.3d 1, 15-16 (1st Cir. 2020).
- 35 -
2012 and subsequent long-term consequences for his health
connected to those seizures.
To succeed on a negligence claim, a plaintiff must prove
"each and every element of that claim: duty, breach of
duty[,] . . . causation (actual and proximate)[,] and damages."
Bennett v. Eagle Brook Country Store, Inc., 557 N.E.2d 1166, 1168
(Mass. 1990). To avoid delving unnecessarily into issues of state
law, we will bypass the elements of duty, breach, and damages, and
focus on the issue of causation. For the same reason, we decline
to consider the two alternative defenses to liability that GPS
raises to the Doucettes' negligence claim: (1) that it is an
impermissible "educational malpractice claim," and (2) that it is
precluded by the "discretionary function" exemption to the
Massachusetts Tort Claims Act. See Mass. Gen. Laws Ann. ch. 258,
§ 10(b).25
It is true that Massachusetts courts have not embraced
25
educational malpractice claims, see Durbeck v. Suffolk Univ., 547
F. Supp. 3d 133, 139 (D. Mass. 2021), though there appears to be
little Massachusetts case law on the subject. Other courts,
however, have explained that such claims generally challenge the
"quality of the education" a school provides by "ask[ing] a court
to evaluate the course of instruction or the soundness of a method
of teaching," Gociman v. Loyola Univ. of Chi., 41 F.4th 873, 882
(7th Cir. 2022), and it is not clear that the Doucettes' challenge
to GPS's purported failure to keep B.D. safe matches that
formulation.
Likewise, while GPS cites Bencic v. City of Malden, 587 N.E.2d
795, 796 (Mass. App. Ct. 1992), to support its assertion that the
discretionary function exception covers this case, it appears that
that decision was abrogated by Harry Stoller & Co. v. City of
Lowell, 587 N.E.2d 780, 784-85 (Mass. 1992). See Alake v. City of
- 36 -
Our analysis focuses on but-for causation, which is
established when a plaintiff "show[s] that there was greater
likelihood or probability that the harm complained of was due to
causes for which the defendant was responsible than from any other
cause." Lieberman v. Powers, 873 N.E.2d 803, 808 (Mass. App. Ct.
2007) (quoting Mullins v. Pine Manor Coll., 449 N.E.2d 331, 338-39
(Mass. 1983)).
We must thus assess whether a reasonable jury could
conclude, at a minimum, that GPS's acts or omissions were the
but-for cause of B.D.'s five severe seizures in the summer and
fall of 2012. Dr. Ming's expert report directly opines that GPS's
shortcomings caused B.D.'s five severe seizures, but the district
court justifiably excluded Dr. Ming's expert report from the
summary judgment record. See Section II supra. There is no other
expert testimony supporting the notion that B.D.'s seizures were
attributable to GPS's actions. To the contrary, GPS has produced
an expert report by Dr. Mara Cvejic opining that "nothing the
defendants did or failed to do caused or contributed to the
seizures [B.D.] experienced while a student of GPS." Without any
expert evidence supporting the notion that GPS caused B.D.'s
seizures, the Doucettes are unable to carry their burden, "[a]s
Bos., 666 N.E.2d 1022, 1024-25 & 1025 n.7 (Mass. App. Ct. 1996)
(recognizing Stoller's abrogation of Bencic). It is not otherwise
clear under Massachusetts law that all of GPS's challenged conduct
is covered by the discretionary function exception.
- 37 -
[it] is well-established under Massachusetts law[] [that] 'expert
testimony is required to establish medical causation.'"26 Milward
v. Rust-Oleum Corp., 820 F.3d 469, 476 (1st Cir. 2016) (quoting
Reckis v. Johnson & Johnson, 28 N.E.3d 445, 461 (Mass. 2015)).
Because on this record a reasonable jury could not
conclude that B.D.'s seizures were caused by GPS's conduct, we
affirm the district court's grant of summary judgment in GPS's
favor on the general negligence count.
2. The Doucettes' Remaining State-Law Claims
Under Massachusetts law, causation is an essential
element of all three of the Doucettes' other state-law claims.
See Lanier v. President & Fellows of Harvard Coll., 191 N.E.3d
1063, 1075 (Mass. 2022) (listing causation as an element of
intentional or reckless infliction of emotional distress claims);
Rodriguez v. Cambridge Hous. Auth., 823 N.E.2d 1249, 1253 (Mass.
2005) (listing causation as an element of negligent infliction of
emotional distress claims); Mass. Gen. Laws Ann. ch. 231, § 85X
("The parents of a minor child or an adult child who is dependent
on his parents for support shall have a cause of action for loss
26We note, moreover, that none of the contemporaneous medical
evidence within the record -- such as B.D.'s medical records
pertaining to his increased seizure activity -- indicates that any
act or omission by GPS caused B.D.'s seizures. Indeed, none of
these events -- such as GPS's failure to have B.D.'s reinforcers
ready at the beginning of the ESY program -- even happened at the
same time as any of B.D.'s five severe seizures.
- 38 -
of consortium of the child who has been seriously injured against
any person who is legally responsible for causing such injury."
(Emphasis added)). The Doucettes depend upon the same basic theory
of causation -- rejected above -- for all three claims, and thus
their failure to establish that GPS caused B.D.'s seizures means
that these claims fail as well.
IV.
In light of the foregoing analysis, we affirm the
district court's award of summary judgment in favor of GPS.
So ordered.
- 39 -