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Grant Houwman v. Jon Gaiser

September 15, 2011


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, Grant Houwman, asserts claims of alienation of affections and deceit against defendant, Jon Gaiser, and seeks compensatory and punitive damages. Gaiser moves for summary judgment on Houwman's claims. Docket

26. Houwman resists the motion and moves to commence discovery on his punitive damages claim. Docket 21. Houwman also moves to exclude the expert testimony of Dr. Susan Eleeson. Docket 24. Gaiser resists these motions. For the reasons stated below, Houwman's motion to exclude expert testimony is denied, and Gaiser's motion for summary judgment is granted in part and denied in part.


In the light most favorable to Houwman, the nonmoving party on the summary judgment motion, the pertinent facts are as follows:

Houwman and Brittney Houwman (Brittney) were married in September 2001. In 2006, Brittney was hired as a controller for MetaBank, where Gaiser was her supervisor. Soon after Brittney was hired, Gaiser began to fantasize about an affair with Brittney and wrote a pornographic story about an illicit encounter between him and Brittney at the workplace. He shared this story with Brittney after they began their affair. During the affair, Gaiser told Brittney that "the attraction was there for me on day one." Docket 29-2 at 5.

Starting in the spring of 2007 and continuing through September 2007, Gaiser and Brittney engaged in a sexual and emotional relationship. Brittney originally informed Houwman that the relationship started as an incident of "date rape." On a weekend when both Houwman and Gaiser's wife were out of town, Brittney hosted a gathering for her co-workers, including Gaiser. Gaiser and Brittney created a plan where Gaiser would leave with the other guests and then return so as not to raise suspicion. When he returned to the house, Gaiser began consuming additional cocktails with Brittney and the pair began kissing and fondling.

Gaiser and Brittney had discussed "hooking up" prior to that evening, but they did not end up having sex. Docket 40-2 at 2. Brittney asked Gaiser to sleep on the downstairs couch until he sobered up and could go home, but Gaiser came to her marital bed. Once Gaiser climbed into bed with Brittney, Brittney began to have her first panic attack. Gaiser helped Brittney calm down and then left for home. Gaiser knew at the time that what he was doing was wrong and felt guilt and fear, yet he would have engaged in sexual intercourse with Brittney if the opportunity had arisen.

The next morning Gaiser called Brittney and asked her to come to his home. Brittney agreed to come over because she wanted to maintain her friendship with Gaiser, but she explicitly told Gaiser she would not engage in sexual intercourse with him. In addition, Brittney was not attracted to Gaiser at that time. Brittney went to Gaiser's home where they spent the day together. They napped together and then began kissing and fondling. Brittney did not want to have sexual intercourse. She cried and pulled her panties up and Gaiser told her, "We just need to get this out of our system this one time." Docket 40-3 at 3. Brittney stopped fighting Gaiser, and they had sex. Brittney testified that she "wouldn't consider the first time consensual." Docket 40-3 at 3. Afterward, Brittney cried.

Beyond the first incidence of sexual intercourse, there was no additional coerced sex, and the remainder of the affair was consensual. Brittney and Gaiser began to send romantic and illicit e-mails through personal e-mail accounts and continued to engage in sex. The pair shared, and subsequently engaged in, their sexual fantasies.

Brittney and Houwman had a troubled marriage, but they had love for each other before and during the affair. Brittney acknowledged that Houwman was the most important person in her life and that she loved Houwman, even once the affair had begun.

Starting with the first night Gaiser came to Brittney's bed, Brittney began having panic attacks. Before that night, Brittney had never had panic attacks. Once the affair began, Brittney's emotional stability decreased. She believed that Gaiser, in his supervisory role at work, took advantage of her emotional instability. After the affair ended, Brittney had bouts of depression and anxiety, and she consumed alcohol most nights.

After Brittney informed Houwman of the relationship, she filed a sexual harassment discrimination claim against Gaiser. MetaBank hired an external investigator to investigate the claim. The South Dakota Division of Human Rights issued a finding of no probable cause for the sexual harassment claim, but Gaiser was fired by MetaBank for engaging in a sexual relationship with his inferior. As Gaiser acknowledged to Brittney, "good bosses probably wouldn't seduce their employees." Docket 29-2 at 10. Houwman did not learn until after the sexual harassment claim ended that the "the affair was entirely mutual and [Brittney] had been perpetrating the lies." Docket 29-4 at ¶ 20. Brittney and Houwman attended marriage counseling with Dr. Susan K. Eleeson, who saw them together as well as Brittney individually.

Brittney subsequently filed for divorce from Houwman in March 2009 and cited extreme cruelty and irreconcilable differences. Houwman filed a counterclaim and cited extreme cruelty and adultery. On August 13, 2010, the circuit court granted a divorce to Houwman based on the ground of adultery. On August 26, 2010, Houwman filed the present suit against Gaiser.

I. Motion to Exclude Expert Testimony

Houwman argues that the testimony of Gaiser's proposed expert witness, Dr. Susan K. Eleeson, should be excluded because her opinions are unreliable under Federal Rule of Evidence 702. Houwman claims this is because Brittney was not fully forthcoming and did not tell Dr. Eleeson the truth.

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. Sancom, Inc. v. Qwest Comm. Corp., 683 F. Supp. 2d 1043, 1050 (D.S.D. 2010). The rule specifically 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.

Fed. R. Evid. 702. Using Rule 702, the trial judge becomes a "gatekeeper" who screens evidence to ensure its reliability and relevance. Sancom, 683 F. Supp. 2d at 1050 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). "The rule clearly is one of admissibility rather than exclusion." Id. (citing Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001)). An expert's opinion should be excluded "only if it is so fundamentally unsupported that it can offer no assistance to the jury." Id. (citing Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997)).

The district court applies a three-part test when screening proposed testimony for experts under Rule 702:

First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.

Sancom, 683 F. Supp. 2d at 1051 (citing Lauzon, 270 F.3d at 686) (internal citations and quotations omitted).

First, Dr. Eleeson's specialized knowledge of human interaction and expertise in marriage counseling would be useful to the finder of fact in this case. Dr. Eleeson knows Houwman and Brittney well because she had counseling sessions with Brittney over a period of 35 months, and she met with both Brittney and Houwman 18 times. She was an insider to the Houwman marriage prior to its dissolution and after the Gaiser affair, and she can help the jury understand the marriage through an analysis of their marital problems with a psychological or scientific lens. Dr. Eleeson would provide helpful information as to whether Gaiser alienated Brittney's affections.

Second, Dr. Eleeson is qualified in this specific area to help the fact finder make its determination. Dr. Eleeson's curriculum vitae details her education, background, and professional experience in the area of psychology. Docket 43-1. Dr. Eleeson has both a doctorate in psychology and philosophy as well as a master's degree in counseling and a bachelor's degree in fine arts. Id. She has been practicing professionally since 1998, but she gained experience through clinical hours long before that time. Id. Dr. Eleeson is a member of the American Psychological Association and the South Dakota Psychological Association. Id. She participated in numerous professional presentations and published pertinent literature on the topics of women's health, psychology, and related issues. Dr. Eleeson is qualified to offer her opinion to the jury.

Finally, not only is Dr. Eleeson qualified in the area of psychology, but she also has reliable knowledge of this case. Dr. Eleeson had counseling sessions with Brittney over a period of 35 months and met often with both Brittney and Houwman; therefore, she has psychological insight to both their thought processes and emotional well-being. Houwman claims that Dr. Eleeson's opinion is unreliable because Brittney did not tell Dr. Eleeson the whole truth immediately about the affair, but Dr. Eleeson knew the majority of the pertinent facts. Dr. Eleeson knew of the affair between Gaiser and Brittney, she had counseling sessions with both Brittney and Houwman, and she based her opinion on what she was told, what she observed, and her training and experience. Dr. Eleeson said in ...

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