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

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

- 2 - favorable to the party opposing summary judgment." Rivera-Colón

v. Mills,

(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

(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.,

(2017). "[T]he IEP documents the child's current levels of

- 3 - 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."

(last alteration in original) (internal

quotation marks omitted) (quoting

(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.

- 4 - 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

- 5 - 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.

- 6 - 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.

- 7 - 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.

- 8 - 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

- 9 - 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.

- 10 - 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.

- 11 - 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.

- 12 - 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

- 13 - 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.

- 14 - 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.

- 15 - 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

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,

(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.,

(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,

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,

, at *1 n.1 (D. Mass. July 12, 2022).

- 16 - On remand, the district court granted GPS's motion for

summary judgment on all counts. See Doucette v. Jacobs, No.

15-13193,

(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.

. 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.

. 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.

.

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,

- 17 - cognitive, and developmental condition.15

. 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,

(1st Cir. 1990).

- 18 - 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.,

(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.,

(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,

.

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.

- 19 - expert testimony when deciding a motion for summary judgment. See,

e.g., Rodríguez v. Hosp. San Cristobal, Inc.,

(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,

(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."

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.,

(1993). "The focus, of course, must be solely on principles

and methodology, not on the conclusions that they generate."

. 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,

(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.,

(5th Cir. 1998))).

- 20 - 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,

(quoting Milward v. Acuity Specialty Prods. Grp., Inc.,

, 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,

(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.,

(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,

, 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,

, 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.

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.

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.

(quoting McGovern ex rel. McGovern

v. Brigham & Women's Hosp.,

(D. Mass.

2008); see also Gen. Elec.,

. 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,

. 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,

(1999);

see also González-Arroyo,

(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,

, 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.,

(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.

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,

(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,

(1st Cir. 2010); see also County of Sacramento v. Lewis,

(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,

, 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,

, 885 (1st Cir. 2010) (quoting Hawkins v.

Freeman,

(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,

(1st Cir. 2005); see also

González-Droz v. González-Colón,

(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,

(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,

(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,

(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."

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."

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,

.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,

; 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.

. 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."

.

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,

(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,

(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,

.

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,

. 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,

; see also Hasenfus,

(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

. 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,

(1st Cir. 1998); see also

(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,

(1st Cir. 2015) (quoting Camelio,

). 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,

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,

(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.,

(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

(b).25

It is true that Massachusetts courts have not embraced 25

educational malpractice claims, see Durbeck v. Suffolk Univ.,

, 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.,

(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,

(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,

(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,

(Mass. App. Ct.

2007) (quoting Mullins v. Pine Manor Coll.,

(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.,

, 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.,

(1st Cir. 2016) (quoting

Reckis v. Johnson & Johnson,

(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.,

, 1075 (Mass. 2022) (listing causation as an element of

intentional or reckless infliction of emotional distress claims);

Rodriguez v. Cambridge Hous. Auth.,

, 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 -