Ibroci v. Idrovo

Background

Lindita Ibroci and Neil Ibroci resisted disclosing the complete data set from which their expert, Dr. Davatzikos, extracted information for his opinion. The expert had received the data subject to a confidentiality condition requiring him to keep it confidential and use it only for academic purposes, but he used it to prepare an expert report in this private lawsuit.

The dispute concerned whether the plaintiffs and their expert could rely on calculations derived from the data without disclosing the complete data set. The opinion states that the parties submitted letters and exhibits and discussed the dispute during a teleconference and an in-person conference.

Court’s Analysis

The court gave two independently dispositive reasons for requiring disclosure. First, plaintiffs’ counsel did not dispute the court’s observation that the data would ordinarily have been disclosed if it had not been subject to a confidentiality agreement. The court held that plaintiffs could not change the discovery rules by selecting an expert who had entered into confidentiality agreements.

Second, the court found that Ivan Sergio Idrovo and JC Transport Inc. had shown a need for the complete data set to adequately challenge Dr. Davatzikos’s opinion. The opinion compared Ms. Ibroci’s brain-region volumes with those of other women in her age group. Dr. Davatzikos relied on z-scores, which the court described as the difference between the control group’s mean and Ms. Ibroci’s volume divided by the control group’s standard deviation.

The court reasoned that the accuracy of the control group’s mean and standard deviation was central to the opinion. Requiring defendants to accept those calculations without access to the underlying data would deny them a meaningful opportunity to cross-examine the expert under Federal Rule of Evidence 705.

The court also addressed Dr. Davatzikos’s reliance on Ms. Ibroci’s percentile rank. Although the report appeared to derive that rank from the z-score, it did not explain how the z-score was translated into a percentile rank or otherwise establish the basis for that calculation. The court rejected plaintiffs’ argument that disclosing only the control group’s means and standard deviations would allow defendants to recreate the relevant distributions. Different distributions can have the same mean and standard deviation, so those summary statistics could not replace the individual control-group data.

The court further noted that plaintiffs’ argument based on the Health Insurance Portability and Accountability Act was moot because defendants were not seeking personally identifying information, including the control group members’ magnetic-resonance-imaging brain-scan images.

Disposition

Judge Naomi Reice Buchwald ordered plaintiffs either to withdraw Dr. Davatzikos’s opinion or to disclose, without personally identifying information, the numerical data for all brain regions for the 710 control-group members selected by Dr. Davatzikos. Plaintiffs were required to inform defendants and the court of their decision within two weeks after entry of the memorandum and order.