Lane v. American Airlines, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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AUBREY LANE and JESSE LANE, FILED UNDER SEAL

Plaintiffs, MEMORANDUM & ORDER

18-CV-6110 (MKB)

v.

AMERICAN AIRLINES, INC.,

Defendant.

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MARGO K. BRODIE, United States District Judge:

Plaintiffs Aubrey and Jesse Lane brought this action against Defendant American

Airlines, Inc. on October 31, 2018, (Compl., Docket Entry No. 1), asserting negligence and loss

of consortium claims, (Second Am. Compl. (“SAC”) ¶¶ 28–42, Docket Entry No. 45). Plaintiffs

allege that Defendant’s negligence allowed an intoxicated passenger to sexually assault Aubrey

Lane (“Lane”) aboard one of Defendant’s flights. (Id.)

Currently before the Court are (1) Plaintiffs’ motion to bar any evidence of Lane’s

“childhood and young adult sexual assaults”; and (2) the parties’ motions to exclude the expert

opinion and proposed testimony of expert witnesses pursuant to Rule 702 of the Federal Rules of

Evidence. Plaintiffs move to exclude the proposed testimony of Dr. Nina Rodd, a clinical

psychologist, and Dr. Gregory Saathoff, a forensic psychiatrist;1 and Defendant moves to

1 (Pls.’ Rape Shield Mot. in Limine and Daubert Mots. (“Pls.’ Mot.”), Docket Entry No.

84-9; Pls.’ Mem. in Supp. of Pls.’ Mot. (“Pls.’ Mem.”), Docket Entry No. 84; Pl.’s Rebuttal to

Rape Shield Mot. in Limine and Daubert Mots. (“Pls.’ Reply”), Docket Entry No. 95; Def.’s

Opp’n to Pls.’ Mot. (“Def.’s Opp’n”), Docket Entry No. 92; Rep. of Dr. Nina Rodd (“Rodd

Rep.”), annexed to Decl. of Daniel Z. Rivlin (“Rivlin Decl.”) as Ex. F, Docket Entry No. 86-2;

Addendum to Rodd Rep. (“Rodd Addendum”), annexed to Pls.’ Mot. to Seal as Ex. 4, Docket

Entry No. 84-4; Rep. of Dr. Gregory Saathoff (“Saathoff Rep.”), annexed to Rivlin Decl. as Ex.

G, Docket Entry No. 86-2.)

exclude the proposed testimony of Kim E. Petersen, a transportation security expert, and Dr.

Sheri Vanino, a clinical psychologist.2

For the reasons set forth below, the Court denies Plaintiffs’ motion to exclude evidence

of Lane’s history of sexual abuse and assault; grants in part and denies in part Plaintiffs’ motion

to exclude the expert opinions of Drs. Nina Rodd and Gregory Saathoff, and Defendant’s motion

to exclude the expert opinion of Kim E. Petersen; and denies Defendant’s motion to exclude the

expert opinion of Dr. Sheri Vanino.

I. Background

The Court assumes familiarity with the facts as set forth in its prior decision granting in

part and denying in part Plaintiffs’ motion for partial summary judgment (the “April 2022

Decision”). (Apr. 2022 Decision, Docket Entry No. 70.) The Court therefore provides only a

summary of the relevant facts and procedural history.

On June 26, 2017, at 11:34 PM, Lane boarded American Airlines Flight 1280 (the

“Flight”) from Phoenix to New York and sat in window seat 12A. (Id. at 2.) The passenger

assigned to seat 12B, Rene Santiago, boarded shortly after. (Id.) Lane testified that Santiago

was “stumbling” as he walked down the aisle to his seat and that “[t]he second he sat . . . next to

me, I knew he was drunk.” (Id. at 3 (alteration in original) (quoting Dep. of Aubrey Lane dated

Aug. 31, 2020, at 80:1–11, Docket Entry No. 60-3).) Lane said that Santiago was visibly

2 (Def.’s Mot. to Exclude the Expert Opinions of Kim E. Petersen and Dr. Sheri Vanino

(“Def.’s Mot.”), Docket Entry No. 86; Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Mem.”),

Docket Entry No. 86-1; Def.’s Reply in Supp. of Def.’s Mot. (“Def.’s Reply”), Docket Entry

No. 96; Pl.’s Resp. to Def.’s Mot. (“Pl.’s Opp’n”), Docket Entry No. 91; Rep. of Kim E. Petersen

(“Petersen Rep.”), annexed to Rivlin Decl. as Ex. C, Docket Entry No. 86-2; Rep. of Dr. Sheri

Vanino (“Vanino Rep.”), annexed to Rivlin Decl. as Ex. D, Docket Entry No. 86-2.)

intoxicated when he boarded the flight, that he repeatedly asked for and was served more alcohol

once he boarded, and that he sexually assaulted her during the flight as a result. (Id. at 3–8.)

Based on these allegations, Plaintiffs brought this case claiming that Defendant

negligently allowed Santiago to board the flight in a visibly intoxicated state and then served him

more alcohol on board, in violation of federal regulations. (SAC ¶¶ 28–42.) During discovery,

the parties took depositions of various passengers, the gate agents who allowed Santiago on

board, and members of the crew of the Flight. (Apr. 2022 Decision 3–8.) The evidence includes

reports from Defendant’s experts discussing sexual abuse that Lane experienced as a child and

young adult. (See Pls.’ Mem. 4–6; Rodd Rep. 3–5; Saathoff Rep. 3–11.)

Plaintiffs moved in April of 2023 to exclude evidence of any sexual abuse or assaults that

Lane suffered prior to the sexual assault alleged in this case. (See Pls.’ Mem. 1–9.) The parties

also filed their Daubert motions, each seeking to exclude two expert witnesses. (See Pls.’ Mem.;

Def.’s Mem.)

II. Discussion

a. Plaintiffs’ motion to exclude evidence of past sexual abuse and assaults

Plaintiffs argue that the Court should preclude any evidence of Lane’s “childhood and

young adult sexual assaults.” (Pls.’ Mem. 1.) Specifically, Plaintiffs argue that the reports of

Drs. Rodd and Saathoff mention sexual abuse and assaults that Lane experienced as a child and

young adult, and that they do so “in an effort to minimize the damages owed” as a direct result of

the assault at issue in this case. (Id.) In support, Plaintiffs argue that Rule 412 of the Federal

Rules of Evidence “makes sexual history evidence presumptively inadmissible in civil cases,”

that the rule is intended to prohibit inquiry into private sexual histories and to “prevent[]

defendants from putting the victim rather than the defendant . . . on trial,” and that this rationale

applies with equal force to this case to preclude admission. (Id. at 3–4 (citation and internal

quotation marks omitted).) In addition, Plaintiffs contend that the past sexual trauma that Lane

experienced was too long ago to have probative value in this case, and that “other experiences of

victimization” that are more recent sufficiently establish her preexisting mental health

conditions. (See id. at 4–6.) Finally, Plaintiffs argue that damages in this case “cannot be

apportioned by a reasonable determination” among the various possible sources of Lane’s

alleged injury, and therefore the Court should refuse to make any apportionment of its own. (Id.

at 6–8.) Plaintiffs argue that regardless of any preexisting condition that made the extent of harm

unforeseeable to Defendant, Defendant is liable for the full extent of the harm. (Id. at 8–9.)

Defendant first responds that Rule 412 is inapplicable because Defendant seeks to use

evidence of Lane’s past sexual trauma “merely . . . to evaluate the causes and extent of [Lane’s]

psychological condition, not to demonstrate any type of predisposition [Lane] had towards

sexual behavior or a specific narrative of a prior encounter.” (Def.’s Opp’n 5–6.) Defendant

next argues that even if Rule 412 applies, the evidence at issue would be admissible under the

rule’s exception for otherwise excludable evidence “if its probative value substantially outweighs

the danger of harm to any victim and of unfair prejudice to any party.” (Id. at 8–18 (quoting Fed.

R. Evid. 412(b)(2)).)

“Federal Rule of Evidence 412 forbids the admission of evidence ‘in a civil or criminal

proceeding involving alleged sexual misconduct’ that is offered to prove that a ‘victim engaged

in other sexual behavior’ or that a victim has a ‘sexual predisposition.’” United States v. Perez,

No. 20-1982, 2022 WL 1421408, at *1 (2d Cir. May 5, 2022) (quoting Fed. R. Evid. 412(a)); see

also United States v. Rivera, 799 F.3d 180, 184 (2d Cir. 2015) (“Federal Rule of Evidence

412(a)(1) provides that in a case involving allegations of sexual misconduct, ‘evidence offered to

prove that a victim engaged in other sexual behavior’ is inadmissible.” (quoting Fed. R. Evid.

412(a)(1))). “The rule, however, is not categorical or absolute.” Stampf v. Long Island R.R. Co.,

761 F.3d 192, 203 (2d Cir. 2014). It provides that “[i]n a civil case, the court may admit

evidence [of] a victim’s sexual behavior . . . if its probative value substantially outweighs the

danger of harm to any victim and of unfair prejudice to any party.” Id. (alterations in original)

(quoting Fed. R. Evid. 412(b)(2)). Rule 412 aims to:

safeguard the alleged victim against the invasion of privacy,

potential embarrassment and sexual stereotyping that is associated

with public disclosure of intimate sexual details and the infusion of

sexual innuendo into the factfinding process. By affording victims

protection in most instances, the rule also encourages victims of

sexual misconduct to institute and to participate in legal proceedings

against alleged offenders.

Fed. R. Evid. 412, advisory committee’s note to 1994 amendments; Wolak v. Spucci, 217 F.3d

157, 160 (2d Cir. 2000) (quoting same).

Beyond these enumerated exceptions to Rule 412, courts have found that, when a

plaintiff alleges emotional or psychological injury, evidence of prior sexual abuse or assaults is

admissible to show other sources of that injury, see, e.g., Doe v. Bridges to Recovery, LLC, No.

20-CV-348, 2021 WL 4690830, at *16 (C.D. Cal. May 19, 2021) (“[Rule] 412 is inapplicable to

the evidence of prior sexual assaults because that evidence is not being offered to prove that [the

plaintiff] engaged in other sexual behavior or to prove her sexual predisposition. Rather, the

evidence of prior sexual assaults is offered to identify other sources of emotional distress.”);

Delaney v. City of Hampton, 999 F. Supp. 794, 796 (E.D. Va. 1997) (admitting evidence of the

plaintiff’s history of prior sexual abuse and other incidents because “these stressors may have

contributed to her current psychiatric problem” and thus are relevant to causation); cf. Gowens v.

Tidwell, No. 10-CV-10518, 2013 WL 2285446, at *3 (E.D. Mich. May 23, 2013) (excluding

evidence of the plaintiff’s sexual history because “[t]here [were] no allegations that [the plaintiff]

was the subject of prior sexual abuse or assault or other trauma that could have contributed to her

mental distress before the alleged sexual assault”), and to determine damages, see, e.g.,

Montanez v. City of Syracuse, No. 16-CV-550, 2019 WL 4257134, at *4 (N.D.N.Y. Sept. 9,

2019) (“Defendants have described the past trauma evidence that they seek to introduce and . . .

proffered evidence that following the February 2015 incident, [the p]laintiff sought mental health

treatment for ‘past trauma’ and ‘this recent one.’ Thus, evidence concerning past sexual trauma

may be relevant to a determination of damages.” (citations omitted)).

The Court finds that Rule 412 is not applicable to evidence of Lane’s trauma history,

including any sexual abuse or assaults that she experienced prior to the Flight, to the extent

Defendant offers such evidence to prove causation of Lane’s psychological injuries and to

apportion damages. (See Def.’s Opp’n 1–2.) This proffered evidence does not fall into one of

the two narrow categories of evidence barred by Rule 412: (1) “evidence offered to prove that a

victim engaged in other sexual behavior,” or (2) “evidence offered to prove a victim’s sexual

predisposition.” Fed. R. Evid. 412(a). Accordingly, Rule 412 is not applicable and does not bar

admission of Lane’s history of sexual abuse and assault to identify sources of her trauma other

than the alleged sexual assault on the Flight or as evidence of her damages.

b. The parties’ Daubert motions

i. Standard of review

“The admission of expert testimony is governed primarily by the Federal Rules of

Evidence.” United States v. Walker, No. 18-3506, 2023 WL 3451419, at *1 (2d Cir. May 15,

2023). Rule 702 of the Federal Rules of Evidence was recently amended, and this new

Amendment took effect December 1, 2023. The rule now provides:

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 the proponent demonstrates to the court that

it is more likely than not that: (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’s

opinion reflects a reliable application of the principles and methods

to the facts of the case.

Fed. R. Evid. 702.3 “While the proponent of expert testimony has the burden of establishing by

a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied, . . .

the district court is the ultimate gatekeeper.” United States v. Jones, 965 F.3d 149, 161 (2d Cir.

2020) (alteration in original) (quoting United States v. Williams, 506 F.3d 151, 160 (2d Cir.

2007)); see also Richardson v. Corr. Med. Care, Inc., No. 22-210, 2023 WL 3490904, at *2 (2d

Cir. May 17, 2023) (same); United States v. Farhane, 634 F.3d 127, 158 (2d Cir. 2011) (“The

law assigns district courts a ‘gatekeeping’ role in ensuring that expert testimony satisfies the

requirements of Rule 702.” (citations omitted)).

3 Prior to the Amendment, Rule 702 read:

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.

Fed. R. Evid. 702 (2011) (amended 2023). Although the language remains largely similar, the

Court is mindful of the purposes of the two amendments, as set forth in the advisory committee’s

notes.

The purpose of the first amendment was to “clarify and emphasize that expert testimony

may not be admitted unless the proponent demonstrates to the court that it is more likely than not

that the proffered testimony meets the admissibility requirements set forth in the rule.” Fed. R.

Evid. 702 advisory committee’s note to 2023 amendment. The amendment was aimed at courts

that had erroneously held that “the critical questions of the sufficiency of an expert’s basis, and

the application of the expert’s methodology, are questions of weight and not admissibility.” Id.

Rather, the Rule 104(a) preponderance standard is to be applied before a court admits the expert

opinion in the first place. See id. The second amendment served to “emphasize that each expert

opinion must stay within the bounds of what can be concluded from a reliable application of the

expert’s basis and methodology.” Id.

Prior to permitting a person to testify as an expert under Rule 702, the court must make

the following findings: (1) the witness is qualified to be an expert; (2) the opinion is based upon

reliable data and methodology; and (3) the expert’s testimony on a particular issue will “assist

the trier of fact.” Nimely v. City of New York, 414 F.3d 381, 396–97 (2d Cir. 2005); see also

United States v. Napout, 963 F.3d 163, 187–88 (2d Cir. 2020) (explaining that the district court

is tasked with “ensuring that an expert’s testimony both rests on a reliable foundation and is

relevant to the task at hand” (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597

(1993))); United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004) (quoting same). In Daubert v.

Merrell Dow Pharmaceuticals, Inc., the Supreme Court set forth a list of factors, in addition to

the criteria set forth in Rule 702, that bear on the determination of reliability:

(1) whether a theory or technique has been or can be tested; (2)

“whether the theory or technique has been subjected to peer review

and publication;” (3) the technique’s “known or potential rate of

error” and “the existence and maintenance of standards controlling

the technique’s operation;” and (4) whether a particular technique

or theory has gained general acceptance in the relevant scientific

community.

Williams, 506 F.3d at 160 (quoting Daubert, 509 U.S. at 593–94); see also United States v.

Morgan, 675 F. App’x 53, 55 (2d Cir. 2017) (quoting same); Zaremba v. Gen. Motors Corp., 360

F.3d 355, 358 (2d Cir. 2004) (similar) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149–

50 (1999)). The Daubert inquiry for reliability is a “flexible one” and does not “constitute a

definitive checklist or test,” and thus, the Daubert factors “neither necessarily nor exclusively

appl[y] to all experts or in every case.” Kumho Tire, 526 U.S. at 141, 150 (citation and internal

quotation marks omitted).

The district court is afforded “the same broad latitude when it decides how to determine

reliability as it enjoys [with] respect to its ultimate reliability determination.” Id. at 142

(emphasis omitted) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)). Expert

testimony should be excluded if it is “speculative or conjectural.” Jones, 965 F.3d at 162

(quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996)); Major League

Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (quoting same). When an

expert’s opinion is based on data or methodologies “that are simply inadequate to support the

conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion

testimony.” Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 253 (2d Cir. 2005) (quoting

Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002)); see also Nimely,

414 F.3d at 396 (“[N]othing in either Daubert or the Federal Rules of Evidence requires a district

court to admit opinion evidence which is connected to existing data only by the ipse dixit of the

expert. A court may conclude that there is simply too great an analytical gap between the data

and the opinion proffered.” (alteration in original) (quoting Gen. Elec., 522 U.S. at 146)).

Nevertheless, “in accordance with the liberal admissibility standards of the Federal Rules of

Evidence, only serious flaws in reasoning or methodology will warrant exclusion.” In re

Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 173 (S.D.N.Y. 2009) (citing Amorgianos, 303

F.3d at 267); see also Adams v. Liberty Mar. Corp., 407 F. Supp. 3d 196, 202 (E.D.N.Y. 2019)

(same).

i. Plaintiffs’ motion to exclude portions of Dr. Nina Rodd’s opinion

Plaintiffs move to exclude portions of the expert opinion of Defendant’s clinical and

forensic psychologist, Dr. Nina Rodd. (Pls.’ Mem. 20–23; see also Rodd Rep.; Rodd

Addendum.)

1. Dr. Rodd’s background and expert opinion

Dr. Rodd is a “mental health professional” with twenty-one years of experience as a

“licensed clinical and forensic psychologist.” (Rodd Rep. 1.) She has worked with patients

experiencing “trauma including sexual harassment and sexual assault” in clinical settings,

psychiatric hospitals, and forensics arenas. (Id.)

Defendant retained Dr. Rodd to “determine the psychological impact, if any, as a result of

the alleged sexual assault of Ms. Lane on an overnight American Airlines flight from Phoenix,

Arizona, to New York City on June 16, 2017.” (Id.) In preparing her report, Dr. Rodd

conducted a two-and-a-half-hour clinical interview and a one-and-a-quarter-hour psychological

test of Lane via Zoom. (Id.) In addition, Dr. Rodd reviewed the expert report and raw data of

Dr. Sheri Vanino, the psychological evaluation and assessment of Lane by Dr. Alise Duclos, the

pleadings, interrogatories, and select deposition transcripts in this case, and Lane’s medical,

psychological, and in-patient records and social media postings. (Id. at 1–2.) In preparing her

addendum, Dr. Rodd reviewed additional material, including Dr. Duclos’ raw test data from

Lane’s neuropsychological evaluation, Dr. Saathoff’s expert report and video interview of Lane,

Lane’s three journals, and various deposition transcripts. (Rodd Addendum 1–3.)

Dr. Rodd concluded that Lane suffers from , antisocial

personality features, , post-traumatic stress disorder (“PTSD”),

, and ; exaggerates her symptoms; and demonstrates “a pattern of

avoiding feelings of remorse by creating narratives to rationalize and justify her own behavior

and rely on a victim role.” (Rodd Rep. 25–27.) In addition, Dr. Rodd concluded that, “with a

reasonable degree of psychological certainty,” “the alleged sexual assault, if it actually occurred,

could have caused the exacerbation of Ms. Lane’s existing PTSD, but not her existing

, , and Antisocial Personality Features” and that her

“[p]sychological profile prior to the alleged incident more likely than not is consistent with

impulsive and risk taking behavior.” (Id. at 27; see also Rodd Addendum 3.) In her addendum,

Dr. Rodd found it “notable” that in Lane’s three journals, she only referenced the “rape” in “one

short sentence in a total of [sixty-four] pages” and that “none of the records of her psychological

treatments . . . [made] any reference to the alleged sexual assault on the American Airline flight,

nor was there any record of treatment provided to address any trauma caused by the alleged

sexual assault.” (Rodd Addendum 2.) Dr. Rodd further concluded, after manually inputting the

previously unavailable raw data used by Dr. Duclos,4 that Lane’s psychological test results

administered by Dr. Duclos “can only be assumed to be invalid — therefore, no clinical

interpretation is provided” likely due to exaggeration, and the only valid test result was the

“Trauma Symptoms Inventory-2 that Dr. Vanino” administered, which indicated PTSD. (Id. at

3.)

In her report, Dr. Rodd explained that she administered to Lane a Personality Assessment

Inventory (“PAI”), “a 344-item self-report instrument whose items are answered on a [four]-

point scale and comprise [twenty-two] nonoverlapping scales that measure constructs related to

profile validity, psychiatric diagnoses, treatment-related issues, and interpersonal styles.” (Rodd

Rep. 10–11.) Based on the resulting PAI clinical profile, Dr. Rodd concluded that Lane suffered

from anxiety, aggression, , trauma, depression, anti-social

personality, psychosis, alcohol use, and suicidal ideations, although given “the possibility

of an element of exaggeration of complaints and problems” by Lane, the results “may

overrepresent the extent and degree of symptomatology” or “the actual degree of

psychopathology” as viewed by an objective observer. (Id. at 11–13.) In support, Dr. Rodd

4 In her addendum, Dr. Rodd explains that, at the time she prepared her initial report, she

“did not have access to Dr. Duclos’ . . . raw psychological and neuropsychological test data from

Ms. Lane’s neuropsychological evaluation” because “Dr. Duclos had previously refused to

provide the data.” (Rodd Addendum 2–3; see also Rodd Rep. 1 n.* (“Dr. Duclos had refused to

provide raw data, so this report is subject to supplementation of the raw data.”).)

explained that her results matched those of Dr. Duclos, who indicated that Lane’s “response

pattern suggested she may have attempted to present herself in an overly negative way” and

concluded that Lane was “experiencing a significant level[] of aggression, anxiety symptoms,

depressive symptoms, somatic concerns, features, problem[s] with

concentration and cognitive functioning, and trauma-related concerns.” (Id. at 15.) In addition

to the PAI, Dr. Rodd conducted a Beck Depression Inventory test, a self-report subjective test,

which indicated that Lane suffers from moderate to severe depression. (Id.) Dr. Rodd concluded

that, given Lane’s “pattern of exaggeration and [of] reporting her symptoms in an amplified way,

. . . her actual symptoms are more likely than not at a milder level than what she reported.” (Id.)

In diagnosing Lane, Dr. Rodd also evaluated the criteria for

, , and PTSD described in the Diagnostic and Statistical Manual of

Mental Disorders, Fifth Edition (“DSM-V”) against the information she obtained from the

interviews with Lane and the documents she reviewed. (Id. at 16–26); see Am. Psychiatric

Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013). She concluded

that her objective tests, as well as Dr. Vanino’s and Dr. Duclos’ objective tests, indicated that

Lane (1) has “lifelong and Antisocial Personality Features,” (2)

“suffers from a which is a lifelong condition,” and (3) “is suffering from

Posttraumatic Stress Disorder.” (Rodd Rep. 25.) Dr. Rodd further explained that

features include “impulsivity, emotional instability, risk taking self-

sabotaging behavior, intense anger, and difficulty controlling anger,” and antisocial personality

features include “having no regard for authority, impulsivity, and manipulative behavior.” (Id.)

She further explained that features include “decrease[d] need for sleep, inflated

self-esteem, distractibility[,] and excessive engagement in activities with [a] high risk of painful

results such as sexual indiscretion.” (/d.) Finally, she explained that PTSD includes “recurrent

involuntary and intrusive distressing memories of the traumatic events, and prolonged

psychological distress at exposure to internal or external cues that resemble an aspect of the

traumatic event.” (/d.) “Based on the above diagnosed and described disorders,” Dr. Rodd

concluded, Lane “has the propensity in engaging risky behavior and the impulsivity to engage in

risky behavior.” (d.)

In her conclusion, Dr. Rodd criticized Dr. Vanino for focusing “‘only on [Lane’s]|

Depression and PTSD as the impact of the alleged sexual assault” without shedding light on her

“features of| a and anti-social personality disorders” or ht of her i

a and her impulsivity, all of which [Lane] had experienced from her teens and early

adulthood.” (/d. at 16.) Dr. Rodd also disagreed with portions of Dr. Vanino’s expert report,

including Dr. Vanino’s “separate diagnosis” of major depression, since iT

“consider[s] episodes of depression” according to the DSM-V, and her “separate diagnosis of

anxiety disorder, since such episodes are part of ee

WN (ia. at 26-27.)

2. The Court excludes in part and admits in part Dr. Rodd’s

expert report

Plaintiffs argue that Dr. Rodd’s expert report should be excluded as unreliable because

she “never supports her opinions with peer reviewed publications or citations” and merely “cuts

and pastes from a diagnostic manual the descriptions of certain psychiatric conditions” without

“attempt[ing] to link her causation conclusions to that or any other supporting literature.” (Pls.’

Mem. 21-22.) Plaintiffs further argue that Dr. Rodd fails to support how Lane’s single reference

to the “rape” in her journals “proves anything” and “simply pointing out a journal entry fact

without more, ‘would usurp the province of the judge to instruct on the law, or of the jury to

13

make factual determinations,’” (id. at 22 (quoting Island Intell. Prop. LLC v. Deutsche Bank AG,

No. 09-CV-2675, 2012 WL 526722, at *2 (S.D.N.Y. Feb. 14, 2022))), and “is not an opinion

supported by any empirical data,” (id. at 23). In addition, Plaintiffs argue that Dr. Rodd does

“not provide a differential diagnosis” nor does she “attempt to differentiate the [twenty-nine]

diagnos[e]s [Lane]’s [twenty-five] treating physicians found.” (Pls.’ Reply 7.)

Defendant argues that “Dr. Rodd is qualified to opine upon [Lane]’s mental condition and

its cause, her methodologies in arriving at her conclusions were reliable, and her testimony is

ultimately helpful to the trier of fact.” (Def.’s Opp’n 38.) In support, Defendants argue that Dr.

Rodd’s methodology was reliable because she conducted a differential diagnosis, evaluating

events that occurred before and after the Flight and ruling out possible alternative causes of

Lane’s mental condition, and demonstrated that her opinion “is based on a review of data or

information . . . with sufficient indicia of reliability” as she “reviewed the same court documents,

medical records, psychological test results, and other evaluative measures that Dr. Saathoff and

Dr. Vanino assessed when making her diagnosis of [Lane].” (Id. at 35–36.) Defendants further

argue that Dr. Rodd cites “an abundance of scientific literature when supporting her diagnosis of

[Lane], including the DSM-V,” and “provide[s] an analytical link to all the pertinent facts and

literature supporting her diagnosis.” (Id. at 36.) In addition, Defendants argue that “Dr. Rodd’s

reference to some of [Lane]’s journal entries following the alleged incident on the Flight” was “a

single observation made by Dr. Rodd amongst the totality of information she considered in her

analysis when arriving at her overall conclusions.” (Id. at 37.) Finally, Defendants argue that

Dr. Rodd’s report “directly addresses a critical element of Plaintiffs’ claims — the

[apportionment] of damages” and “the critical issue of determining the extent that Plaintiff’s pre-

existing mental conditions were aggravated or exacerbated by the alleged incident on the Flight,”

which are clearly helpful to the trier of fact. (Id. at 37–38.)

Dr. Rodd’s diagnoses that Lane suffers from

, and PTSD are reliable. Her opinions are based on conventional methods for rendering

a psychological diagnosis, including a review of Lane’s medical records and her own nearly

four-hour examination of Lane. See Weiss v. Macy’s Retail Holdings Inc., No. 16-CV-7660,

2019 WL 6174350, at *2 (S.D.N.Y. Nov. 19, 2019) (admitting a psychologist’s diagnosis that

the plaintiff did not have a specific learning disorder after she conducted a two-day, in-person

examination of the plaintiff and extensively reviewed discovery documents); Tardif v. City of

New York, 344 F. Supp. 3d 579, 600 (S.D.N.Y. 2018) (admitting a psychologist’s diagnosis of a

plaintiff’s mental health conditions after he personally observed the plaintiff, conducted two

three-hour clinical interviews with the plaintiff, and reviewed the plaintiff’s medical records and

prior deposition testimony because such preparation “is generally a reliable way to reach an

expert opinion related to a psychological condition” (first citing O’Loughlin v. USTA Player

Dev. Inc., No. 14-CV-2194, 2016 WL 5416513, at *5 (S.D.N.Y. Sept. 28, 2016); then citing

Tchatat v. City of New York, 315 F.R.D. 441, 445 (S.D.N.Y. 2016); and then citing Schoolcraft v.

City of New York, No. 10-CV-6005, 2015 WL 6444620, at *2 (S.D.N.Y. Oct. 23, 2015)));

Schoolcraft, 2015 WL 6444620, at *2 (admitting testimony about a plaintiff’s PTSD diagnosis

that was based on a ninety-minute interview with the plaintiff, a review of depositions by the

doctors that assessed the plaintiff, and a review of medical records). As part of her interviews

with Lane, Dr. Rodd administered the PAI and the Beck Depression Inventory test. (Rodd Rep.

10–15.) In her report, she applied the criteria for ,

, and PTSD described in the DSM-V — “one of the basic texts used by psychiatrists and

other experts” to diagnose patients, see Hall v. Florida, 572 U.S. 701, 704 (2014) — to the

information she obtained from her interviews with Lane and documents she reviewed to arrive at

her diagnoses of Lane. (Rodd Rep. 16–26); see, e.g., Weiss, 2019 WL 6174350, at *2

(concluding that a psychologist’s methodologies were “sufficiently reliable” because the expert

“gathered a variety of data points, including through her own examination of [the plaintiff] and

review of documentary evidence,” and she “explain[ed] the tests she administered and how she

applied the criteria set forth in the DSM-V to the data she gathered”); Tardif, 344 F. Supp. 3d at

600 (concluding that a psychologist “used reliable methodology to conclude that [the plaintiff]

suffers from PTSD, major depressive disorder, and generalized anxiety disorder” when he used a

personality inventory test and the criteria described in the DSM-V to diagnose the plaintiff).

Accordingly, because Dr. Rodd used reliable methodology to conclude that Lane suffers from

, and PTSD, she may testify to those

conclusions.5

However, the Court finds that there is “too great an analytical gap between the data and

the opinion proffered” to admit Dr. Rodd’s proposed testimony regarding causation or

exacerbation. Nimely, 414 F.3d at 396 (quoting Gen. Elec., 522 U.S. at 146). Dr. Rodd

concluded that, “with a reasonable degree of psychological certainty,” the alleged sexual assault,

if it actually occurred, could have caused the exacerbation of Ms. Lane’s existing PTSD, but not

her existing , , and Antisocial Personality

Features” without explaining why the sexual assault could exacerbate one existing medical

5 Dr. Rodd did not, however, describe or apply the criteria in the DSM-V for Lane’s

diagnoses of “ , Moderate” or “ , Moderate,” (Rodd

Rep. 16), although she did conclude that Lane’s PAI results indicated “alcohol use,” (id. at 13).

She also did not describe, but ultimately applied, the criteria in the DSM-V for Lane’s diagnosis

of Antisocial Personality Features. (Id. at 16, 26.)

condition without exacerbating others. (Rodd Rep. 26 (concluding that the alleged sexual assault

could exacerbate Lane’s “existing diagnosis of PTSD” that she suffered “from earlier

experiences in her life all the way back to her childhood” but could not exacerbate “the other

conditions of , , Antisocial Personality Features,

, and ,” which “were fully present in Ms. Lane’s life

prior to the alleged sexual assault”).) Without any explanation of this distinction, the Court finds

that Dr. Rodd’s report and proffered testimony regarding causation or exacerbation “lack[s]

reliable foundation because [she] provided no explanation as to how [her] opinion was based on

[her] experience or medical education,” Vale v. United States, 673 F. App’x 114, 116 (2d Cir.

2016), and “is connected to existing data only by the ipse dixit of the expert,” Nimely, 414 F.3d

at 396 (quoting Gen. Elec., 522 U.S. at 146).

Because Dr. Rodd’s “expert opinion is based on data, a methodology, or studies that are

simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the

exclusion of that unreliable opinion testimony.” Ruggiero, 424 F.3d at 253 (quoting

Amorgianos, 303 F.3d at 266). Accordingly, the Court excludes Dr. Rodd’s expert opinion

concerning the causation or exacerbation of Lane’s medical conditions.

For the above reasons, the Court (1) admits Dr. Rodd’s expert opinion concerning her

diagnoses that Lane suffers from , , and PTSD,

(Rodd Rep. 25–27); and (2) excludes Dr. Rodd’s expert opinion concerning her proposed

testimony regarding causation or exacerbation, (id. at 27; see also Rodd Addendum 3).

ii. Plaintiffs’ motion to exclude portions of Dr. Gregory Saathoff’s

opinion

Plaintiffs move to exclude portions of the expert opinion of Defendant’s forensic

psychiatrist, Dr. Gregory Saathoff. (Pls.’ Mem. 9–20; see also Saathoff Rep.)

1. Dr. Saathoff’s background and expert opinion

Dr. Saathoff is “a clinician who has assessed and treated military and civilian individuals

who suffer from psychiatric disorders including PTSD, traumatic brain injuries, mood disorders,

anxiety disorders, thought disorders, substance use disorders, and personality disorders.”

(Saathoff Rep. 1.) He has “assessed and treated victims of sexual trauma and abuse within

inpatient and outpatient settings” and provides “psychiatric training to third- and fourth-year

medical students, residents and fellows.” (Id.) His experience includes serving as a full-time

professor “on the Faculty of the University of Virginia School of Medicine for [thirty-five]

years” and as a “psychiatric case consultant and trainer for the FBI’s Behavioral Analysis Unit

for [twenty-six] years.” (Id.)

Defendants retained Dr. Saathoff to “determine the psychiatric impact, if any, resulting

from the alleged sexual assault of Ms. Aubrey Lane during an overnight American Airlines flight

from Phoenix, AZ to New York City, NY on 16 June 2017.” (Id.) In preparing his report, Dr.

Saathoff conducted a six-hour psychiatric interview of Lane via Zoom and reviewed the expert

reports of Dr. Rodd and Dr. Vanino, the psychological evaluation and assessment of Lane by Dr.

Duclos, the pleadings, interrogatories, and select deposition transcripts in this case, and Lane’s

medical, psychological, and in-patient records and social media postings. (Id. at 1–2.) In his

report, Dr. Saathoff concluded that Lane suffers from , PTSD,

antisocial personality features, including an ability to exaggerate and willingness to manipulate

those close to her, and dependence, and “the patient role,” or a “victim

narrative.” (Id. at 27–36.)

Dr. Saathoff concluded that Lane’s psychological testing “is consistent with diagnoses of

[PTSD].” (Id. at 36.) He also concluded that Lane’s “history is prominent for significant trauma

dating back to ” and that “[h]er sexual

traumatization continued through childhood and early adulthood,” all of which preceded the

alleged sexual assault on the Flight. (Id. at 31.) In support, he cited to Lane’s recollection of her

past traumas. (Id.) Although Lane was only “able to name some [traumas], but did not

spontaneously recall others,” Dr. Saathoff could not determine “[w]hether this [was] due to

memory issues or something else entirely.” (Id.) In addition, he concluded that “the trauma she

experienced from continues to have an impact” as it triggered Lane in 2021,

despite having occurred as a very young child. (Id. at 4–5, 31.) Ultimately, Dr. Saathoff

concluded that, “with a reasonable degree of medical certainty,” “the alleged sexual assault, if it

actually occurred, had the potential to exacerbate Ms. Lane’s longstanding PTSD.” (Id. at 36.)

Dr. Saathoff also concluded that Lane’s “history, psychological testing[,] and positive

response to Dialectical Behavior Therapy (DBT) all indicate a strong correlation with a diagnosis

of ,” which predated the Flight. (Id. at 27–28.) In support, he

cited the criteria listed in DSM-V, the psychological testing conduct by Dr. Duclos, and the

reports of Dr. Rodd and Dr. Duclos. (Id.) He also cited Lane’s descriptions of “self-mutilations”

— “[h]er self-acknowledged exaggeration of hurt that her mother had initially described to her”

and “her self-mutilation following her boyfriend’s break-up with her” that “result[ed] in

hospitalization in 2014” — as consistent with individuals diagnosed with

. (Id.) In addition, Dr. Saathoff found that Lane’s “strong interest in Dialectical

Behavior Therapy” — a therapy “designed specifically for individuals who suffer from

” — was another strong indication that Lane has

. (Id. at 28.)

In addition, Dr. Saathoff concluded that Lane’s “reliance on multiple treatment facilities

and multiple nurse practitioners as prescribers has led to unnecessary a which has

been i” (Ud. at 29.) In support, he cited evidence that Lane

was prescribed “medications ‘off-label’ for non-FDA approved treatments,” such as gabapentin

for psychiatric disorders, and medications subject to abuse, such as gabapentin and Wellbutrin.

He also found it concerning that Lane was prescribed two antipsychotic medications,

Zyprexa and Seroquel, without a diagnosed psychotic disorder and because Zyprexa and

Seroquel should not be prescribed together due to major, negative potential interactions between

the two medications. (/d.) In addition, he found that Lane has been prescribed hydroxyzine in

two forms despite Dr. Saathoff never having seen such a case and finding “no support

whatsoever in the literature to justify [that] prescribing practice.” (/d. at 30.) He further found it

likely that Lane’s prescription for lithium, which is frequently used in the treatment of a

a and is widely known to affect thyroid function, “induced hypothyroidism” and

“carries with it psychiatric symptoms similar to depression.” (/d. at 29, 33-34.) Despite Lane’s

contention that “there were only a few psychiatrists in the Durango area,” Dr. Saathoff concluded

that there are “nine psychiatrists in Durango who treat adults,’ whom Lane has never sought or

received treatment from. (/d. at 30.) Ultimately, he concluded that “{u)njustified

° Dr. Saathoff defined

20

in adults with depression may result in unnecessary adverse drug events and even

”7 (Id. (citation omitted).)

Dr. Saathoff also concluded that “ has been a prominent component

throughout most of Ms. Lane’s life and has profoundly affected her ability ,

” (Id.) He further concluded that Lane “has obtained

,” such as gabapentin, Wellbutrin, and benzodiazepines, generally, “that have

impacted her mood, affect, cognition, and memory.”8 (Id.) In support, he cited Lane’s ten-year

treatment history of numerous benzodiazepines and sedative-hypnotics and her admission that

she drank heavily while taking these medications, because such medications are addictive in

nature when cross-tolerant with alcohol. (Id. at 30–31.) In addition, Dr. Saathoff concluded that

the “combination of sedative hypnotics such as benzodiazepines and alcohol impairs the

formation of memory to a significant extent,” which can include side-effects of amnesia, and that

Lane’s “use of alcohol and the benzodiazepine Xanax during [the Flight] may account for her

inability to recall and/or development of starkly different assault scenarios.”9 (Id. at 31, 33.) He

7 Dr. Saathoff does not explicitly conclude that Lane suffers from depression but does

recount Lane’s medical history indicating depression and explains that depression is a side-effect

of Zyprexa, a drug prescribed to and taken by Lane. (See, e.g., Saathoff Rep. 12 (explaining that

“[t]earfulness, anxiety, depression, and panic attacks were noted” during one of Lane’s 2016

medical visits); id. at 23 (observing that Lane showed “no signs of stress, anxiety, depression, or

irritability” during Dr. Saathoff’s mental state examination); id. at 29 (explaining that Lane’s

self-described fogginess may result from the “moderate adverse effects of Zyprexa,” which

include confusion, amnesia, and depression).)

8 Dr. Saathoff separately concluded that “[t]here is significant evidence that Ms. Lane

has experienced significant mood symptoms over time as well as anxiety,” although “[i]t is

difficult to know to what extent her . . . has been a factor in

the emergence of these symptoms.” (Saathoff Rep. 36.)

9 It is unclear whether Dr. Saathoff credits Lane’s serious head injuries as a cause of her

inconsistent memory. (Compare Saathoff Rep. 33 (concluding that Lane’s “significant memory

also cited Lane’s without psychiatric supervision as support for his

conclusions regarding her and memory issues. (Id. at 30; see also id. at 32

(concluding that Lane’s significant memory problems are driven, in part, by

).) Dr. Saathoff ultimately concluded that Lane’s

has been a driver for both self-harm and violence towards others, not to mention

absenteeism from work, marital stress, and impulsive/reckless behavior” and that her “

history with co-existent mood and anxiety symptoms” preceded the Flight. (Id.

at 36.)

Dr. Saathoff further concluded that Lane’s “current level of function is high relative to

the period prior to the alleged sexual assault on the [Flight].” (Id. at 32.) In support, he cited

Lane’s “positive response to dialectical behavior therapy and abstinence from alcohol and

sedative-hypnotic medications,” as well as her “ambitious plans for her and her husband,” all of

which “place her in a position that is improved in some ways compared to her level of

functioning prior to the [Flight].” (Id. at 32–33, 35, 36.) He further concluded that “[t]he anger,

anxiety, dissociation, depression, panic attacks, and fear that Ms. Lane is said to experience as

listed by Dr. Vanino were not evident based upon her descriptions . . . of her current life.” (Id. at

35.)

Finally, Dr. Saathoff concluded that Lane has taken on “the patient role” or “victim

narrative” and is exaggerating her experiences or “perceptions of experiences.” (Id. at 34.) In

support, he cited to Lane’s “own acknowledgement of her tendency to exaggerate,” her

problems are driven by multiple serious head injuries, many years of

, , and current with id. at 36 (noting that

although Lane “attributes much of her memory difficulties on traumatic brain injuries, this was

not a diagnostic consideration based upon the results of her testing”).)

psychological testing, “which demonstrates exaggeration,” and documentation from Wings

Recovery Treatment Center (“Wings”) that noted Lane was “very fused with her victim

narrative” and “bec[ame] increasingly frustrated when those distortions [were] challenged.” (Id.

at 34, 36.) He concluded that “[h]er self-described ability to exaggerate . . . and willingness to

manipulate those close to her, are personality features that preceded the [Flight].” (Id. at 36.)

2. The Court excludes in part and admits in part Saathoff’s

expert opinion

Plaintiffs argue that portions of Dr. Saathoff’s expert report and proffered testimony

should be excluded as unreliable or unhelpful.10

Defendant argues that Dr. Saathoff’s “opinions are based on reliable methodologies

which consider the entirety of the pertinent facts of this case” and “will assist the trier of fact to

determine the issue of damages, an essential element of Plaintiffs’ negligence claim.” (Def.’s

Opp’n 19.)

A. Reliability

Plaintiffs argue that Dr. Saathoff’s opinions are unreliable because he (1) “uses data

found invalid” by Dr. Rodd to conclude that Lane suffered from ,

(Pls.’ Mem. 10–11; Pls.’ Reply 9–10); (2) references an outdated and unsupportive source and

ignores “more recent and relevant research from JAMA Psychiatry” to reach his conclusion that

dialectical behavior therapy “is designed specifically for individuals who suffer from

,” (Pls.’ Mem. 11–13); (3) makes a conclusion outside the scope of his

expertise, i.e., that there are “nine alleged practitioners available to treat [Lane]” in her

hometown, (id. at 13; Pls.’ Reply 10); (4) ignores facts, such as that Lane “was treated by Wings’

10 Although Plaintiffs do not specifically classify their challenges to Dr. Saathoff’s

opinions as ones of reliability and helpfulness, the Court understands them as such and groups

them accordingly.

medical doctor, psychiatrist, psychologist, and other mental healthcare professionals who

understood [her] psychopharmacology needs,” (Pls.’ Mem. 13–14; Pls.’ Reply 10); (5) reaches

the conflicting conclusions that Lane is receiving “unnecessary yet has a current

level of high functioning, (Pls.’ Mem. 15); (6) uses a questionable methodology of conducting

lengthy interviews over video rather than in person without providing the limitations of such an

examination as required by the Ethics Guidelines for the Practice of Forensic Psychiatry and

fails to acknowledge that “people’s responses very often change when they know (or believe)

that an interview is being observed or recorded,” (id. at 18–20; Pls.’ Reply 9); and (7) does “not

provide a differential diagnosis” nor does he “attempt to differentiate the [twenty-nine]

diagnos[e]s Lane’s [twenty-five] treating physicians found,” (Pls.’ Reply 7).

Defendant argues that Dr. Saathoff’s report “seeks to opine upon the specific causation of

[Lane]’s mental conditions and disorders” and “is not only based upon a proper differential

diagnosis” but is also bolstered by citation to “relevant psychological literature, medical records,

interviews with, and evaluations of [Lane].” (Def.’s Opp’n 24, 26.) In support, Defendant

argues that Dr. Saathoff’s report considered Lane’s “medical, psychological, and psychiatric

records from treatment that she received both before and after the alleged incident on the Flight”

as well as her “own admissions during the collection of interviews conducted during the course

of this litigation, which are permissible and reliable bases for an expert to rely upon to support a

theory of causation.” (Id. at 26–28.) In addition, Defendant argues that Plaintiffs “fail to cite

any legal authority or pages from the Ethics Guidelines for the Practice of Forensic Psychiatry

to support their contention that remote psychiatric evaluations are somehow less reliable than in-

person evaluations” and that they ignore “excerpts from Dr. Saathoff’s report detailing his

physical observation of Plaintiff’s appearance and body language during their interview.” (Id. at

28–29 (citation omitted).) Defendant further argues that “Plaintiffs’ attempts to support the

argument that there is an analytical gap between the pertinent facts of this case and Dr.

Saathoff’s conclusions are either mischaracterizations of his report which fail to consider the

totality of his analysis or complete fabrications unsupported by any evidence.” (Id. at 29.)

Dr. Saathoff’s diagnoses that Lane suffers from ,

and are reliable. Similar to the opinions of Dr. Rodd, Dr.

Saathoff’s opinions are based on conventional methods for rending a psychiatric diagnosis,

including a review of Lane’s medical records and his six-hour examination of Lane. See Weiss,

2019 WL 6174350, at *2; Tardif, 344 F. Supp. 3d at 600; O’Loughlin, 2016 WL 5416513, at *4–

5; Tchatat, 315 F.R.D. at 445–46; Schoolcraft, 2015 WL 6444620, at *2. Although he did not

conduct any independent psychological tests, he relied on tests administered by other experts,

including Dr. Rodd and Dr. Vanino, as well as Lane’s previous physician, Dr. Duclos. (Saathoff

Rep. 1, 25–27.) Dr. Saathoff then applied criteria from the DSM-V to his own observations of

Lane to diagnose her with . (Id. at 28 (“A review of [Plaintiff’s]

history and my interview is notable for features that reflect .”).)

He also relied on scientific literature and his knowledge as a psychiatrist to conclude that Lane is

experiencing and suffers from . (Id. at 29–31); see, e.g., Gussack

Realty Co. v. Xerox Corp., 224 F.3d 85, 94–95 (2d Cir. 2000); Figueroa v. Boston Sci. Corp.,

254 F. Supp. 2d 361, 367 (S.D.N.Y. 2003). Accordingly, because Dr. Saathoff used reliable

methodology to conclude that Lane suffers from ,

and , he may testify to those conclusions.

However, the Court finds that there is “too great an analytical gap between the data and

the opinion proffered” to admit Dr. Saathoff’s diagnoses of Lane as suffering from PTSD,

antisocial personality features, and “the patient role” or “victim narrative” or his proposed

testimony regarding causation or exacerbation. Nimely, 414 F.3d at 396 (quoting Gen. Elec., 522

U.S. at 146). Dr. Saathoff does not use any methodology to independently reach Lane’s

diagnoses of PTSD, antisocial personality features, or her “patient role” but rather relies on the

conclusions of other experts and Lane’s own statements to reach his diagnoses. (See Saathoff

Rep. 34 (concluding that Lane places herself in “the patient role” because “her psychological

testing [conducted by other experts] demonstrates exaggeration” and “is complemented by her

own acknowledgement of her tendency to exaggerate” without citation to the DSM-V, scientific

literature, or psychiatric knowledge gained during his career to support his conclusion); id. at 36

(concluding that Lane’s “traumatic narrative as expressed to me provides for me a perspective

shared in the documentation from Wings” that Lane is “very fused with her victim narrative”);

id. (concluding that Lane’s testing “is consistent with diagnoses of [PTSD]” without further

explanation or analysis); id. (concluding that Lane’s “psychological testing and history reflect

. . . Antisocial Personality features” without further explanation or analysis)); see, e.g., Matthews

v. Hewlett-Packard Co., No. 15-CV-3922, 2017 WL 6804075, at *4 (S.D.N.Y. Dec. 22, 2017)

(precluding the testimony of a psychologist whose “opinion on causation appears to be based on

little more than [the p]laintiff’s own opinion on this issue, without the benefit of any additional

or independent analysis” and thus his opinion on causation “simply does not reflect a

methodology reliant upon [the expert]’s specialized knowledge or experience, and thus, cannot

be considered reliable” (citations omitted)); Hernandez v. Leichliter, No. 14-CV-5500, 2016 WL

684038, at *2 (S.D.N.Y. Feb. 18, 2016) (“To the extent [the expert] merely repeats or recasts the

testimony of [the p]laintiff in order to arrive at a theory of causation, he is not testifying as an

expert witness based upon specialized knowledge, but rather is acting as a conduit for another

witness’s testimony in the guise of an expert’s opinion.”’); Valentin v. New York City, No. 94-

CV-3911, 1997 WL 33323099, at *27 (E.D.N.Y. Sept. 9, 1997) (“An expert cannot act as a mere

conduit for the opinions of other persons.’’).

In addition, similar to Dr. Rodd, Dr. Saathoff concluded that “the alleged sexual assault,

if it actually occurred, had the potential to exacerbate Ms. Lane’s longstanding PTSD,” but not

her other diagnoses which were “pre-existing.” (Saathoff Rep. 36.) Dr. Saathoff does not

explain why the sexual assault could exacerbate one existing medical condition without

exacerbating others.!! In addition, Dr. Saathoff provides no opinion on the overall impact of the

incident, taking into consideration Lane’s positive steps in treatment, despite concluding that

Lane is “in a position that is improved in some ways compared to her level of functioning prior

to the [Flight].” Ud.) Accordingly, the Court finds that Dr. Saathoff’s report and proffered

testimony regarding causation or exacerbation “lack[s] reliable foundation because he provided

no explanation as to how his opinion was based on his experience or medical education,” Vale,

673 F. App’x at 116, and “is connected to existing data only by the ipse dixit of the expert,”

Nimely, 414 F.3d at 396 (quoting Gen. Elec., 522 U.S. at 146).

1 Although Defendant argues that Dr. Saathoff concluded that “the alleged assault, if it

occurred, ‘had the potential to exacerbate’ Plaintiff's pre-existing mental disorders,” (Def.’s

Opp’n 32), Dr. Saathoff concluded that:

[T]he alleged sexual assault, if it actually occurred, had the potential

to exacerbate Ms. Lane’s longstanding PTSD. The a

and features outlined above were pre-existing, as were her

with co-existent mood and

anxiety symptoms. Her positive response to dialectical behavior

therapy and abstinence from alcohol and _ sedative-hypnotic

medications place her in a position that is improved in some ways

compared to her level of functioning prior to the American Airlines

flight in question.

(Saathoff Rep. 36.) Dr. Saathoff does not conclude that the incident had the potential to

exacerbate all of Lane’s preexisting mental disorders, only PTSD. (/d.)

27

Because Dr. Saathoff’s “expert opinion is based on data, a methodology, or studies that

are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the

exclusion of that unreliable opinion testimony.” Ruggiero, 424 F.3d at 253 (quoting

Amorgianos, 303 F.3d at 266). Accordingly, the Court excludes Dr. Saathoff’s expert opinion

concerning his diagnoses that Lane suffers from PTSD, antisocial personality features, and “the

patient role” or “victim narrative” and his proposed testimony concerning the causation or

exacerbation of Lane’s medical conditions.

The Court therefore (1) admits Dr. Saathoff’s expert opinion concerning his diagnoses

that Lane suffers from , and ,

(Saathoff Rep. 27–33); (2) excludes Dr. Saathoff’s expert opinion concerning his diagnoses that

Lane suffers from PTSD, antisocial personality features, and “the patient role” or “victim

narrative,” (id. at 27–28, 31, 36); and (3) excludes Dr. Saathoff’s expert opinion concerning his

proposed testimony regarding causation or exacerbation, (id. at 32–33, 35, 36).

B. Helpfulness

Plaintiffs argue that Dr. Saathoff’s opinions would be unhelpful to the jury because he

(1) invades the province of the jury by opining on “memory, perception, and the fallibility of

human recall,” (Pls.’ Mem. 15); and (2) merely “highlight[s] jury arguments” without providing

an opinion, (id. at 15–18). In support, Plaintiffs argue that Dr. Saathoff “simply seeks to testify

as to what [Lane] said and to aid [D]efendant’s counsel in highlighting jury arguments” and

“[h]is ‘opinions’ are simply unpermitted voices for factual narratives about the case.” (Id. at 18.)

Specifically, Plaintiffs object to Dr. Saathoff’s conclusions that Lane (1) has made “significant

improvement” because of her “dedication to outpatient therapy groups and abstinence from

sedative hypnotics and alcohol”; (2) has “self-acknowledged significant memory problems”; and

(3) is a victim because her “perceptions of experiences over her life are significant for the degree

of victimization she feels that she has experienced.” (Id. at 17 (quoting Saathoff Rep. 33–34).)

Defendant argues that Dr. Saathoff’s opinions would be helpful and would assist the trier

of fact in determining the relevant issue of damages. (Def.’s Opp’n 31.) In support, Defendant

argues that one of the critical issues Dr. Saathoff is being proffered to testify about is the “extent

of damages that [Lane] has suffered as a result of the alleged incident on the Flight,” which he

“directly address[ed] . . . in his conclusion that the alleged assault, if it occurred, ‘had the

potential to exacerbate’ [Lane]’s pre-existing mental disorders.”12 (Id. at 31–32 (citations

omitted).) Defendant further argues that Plaintiffs’ argument that Dr. Saathoff’s testimony

“merely amounts to a factual narrative about the case, which was created to reject Dr. Vanino’s

findings in her expert report[,] . . . does not demonstrate that Dr. Saathoff’s testimony would be

unhelpful to a jury.” (Id. at 32.)

The Court excludes Dr. Saathoff’s proffered testimony regarding Lane’s factual narrative

as unhelpful to the trier of fact to the extent that Dr. Saathoff did not conduct additional or

independent analysis. Dr. Saathoff has no personal knowledge of the underlying facts, such

recitation is not based on his expert knowledge or experience, and Defendant has not shown that

Lane’s personal history and medical records cannot be understood by a layperson. See, e.g.,

Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013) (“[E]xpert testimony must

‘be helpful to the [trier of fact] in comprehending and deciding issues beyond the understanding

of a layperson.’” (quoting DiBella v. Hopkins, 403 F.3d 102, 121 (2d Cir. 2005))); Tardif, 344 F.

Supp. 3d at 602–03 (“The [c]ourt has no reason to assume, and [the plaintiff] does not provide a

12 As discussed above in footnote 11, Dr. Saathoff concluded that the “alleged sexual

assault, if it actually occurred, had the potential to exacerbate Ms. Lane’s longstanding PTSD,”

(Saathoff Rep. 36), not all of Lane’s preexisting mental disorders.

reason, that [the plaintiff]’s personal history and medical records cannot be understood by a lay

juror. . . . Because factual narrative from an expert is unnecessary, and [the expert] has no

personal knowledge of the underlying facts, [the expert] may not offer testimony [reciting the

plaintiff’s own narration of her personal history] contained in pages 2–5 of his report.” (citations

omitted)); Island Intell. Prop., 2012 WL 526722, at *2 (“An expert may offer opinions that will

help the jury understand the evidence or determine factual issues. He may not, however, directly

transmit facts to the jury, about which he has no personal knowledge, simply because his

testimony represents the easiest way to do that.”); Highland Cap. Mgmt., L.P. v. Schneider, 379

F. Supp. 2d 461, 468–69 (S.D.N.Y. 2005) (explaining that an expert may not “simply rehash[]

otherwise admissible evidence about which he has no personal knowledge,” and “[w]hile an

expert must of course rely on facts or data in formulating an expert opinion, an expert cannot be

presented to the jury solely for the purpose of constructing a factual narrative based upon record

evidence” (citing Fed. R. Evid. 703)); In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 551

(S.D.N.Y. 2004) (precluding expert testimony that consisted of a “narrative of the case which a

juror is equally capable of constructing” (quoting Taylor v. Evans, No. 94-CV-8425, 1997 WL

154010, at *2 (S.D.N.Y. Apr. 1, 1997))). Accordingly, the Court excludes Dr. Saathoff’s expert

opinion regarding Lane’s factual narrative to the extent that Dr. Saathoff did not conduct

additional or independent analysis.13 (See, e.g., Saathoff Rep. 34 (concluding that Lane places

herself in “the patient role” because “her psychological testing [conducted by other experts]

13 As Defendant concedes, Dr. Saathoff’s opinion and proffered testimony regarding the

number of psychiatrists in Durango “is not the type of specialized knowledge that would be

subject to the admissibility standards of Rule 702 and Daubert,” (Def.’s Opp’n 22 n.7), and thus

should not be offered through Dr. Saathoff as an expert witness, see, e.g., Serrano v. City of New

York, No. 15-CV-6885, 2022 WL 2529547, at *4 (S.D.N.Y. July 7, 2022) (“The testimony must

not be ‘directed solely to lay matters which a jury is capable of understanding and deciding

without the expert’s help.’” (quoting Tardif, 344 F. Supp. 3d at 596)).

demonstrates exaggeration” and “is complemented by her own acknowledgement of her

tendency to exaggerate” without citation to the DSM-V, scientific literature, or psychiatric

knowledge gained during his career to support his conclusion).)

The Court is not persuaded, however, by Plaintiffs’ argument that Dr. Saathoff’s opinions

as to Lane’s potential memory issues “invad[es the] province of [the] jury.” (Pls.’ Mem. 15.)

Dr. Saathoff gave a reasoned opinion on how a medication prescribed to Lane, when mixed with

alcohol, could affect her memory. (See Saathoff Rep. 31 (“Lane acknowledged to me that she

was drinking heavily during the same period that she was taking benzodiazepines. This

combination of sedative hypnotics such as benzodiazepines and alcohol impairs the formation of

memory to a significant extent.”); id. at 33 (“Lane’s use of alcohol and the benzodiazepine

Xanax during [the Flight] may account for her inability to recall and/or development of starkly

different assault scenarios.”).) Dr. Saathoff did not opine on the state of mind or credibility of

Lane, which would be inadmissible, even “when such evaluations are rooted in scientific or

technical expertise.” Nimley, 414 F.3d at 398 (first citing United States v. Lumpkin, 192 F.3d

280, 289 (2d Cir. 1999); and then citing United States v. Scop, 846 F.2d 135, 142–43 (2d Cir.

1988)); Island Intell. Prop., 2012 WL 526722, at *2 (“No proposed expert will be allowed to

opine on the state of mind or intent of a particular individual. This invades the province of the

jury members, who are tasked with determining facts and credibility.” (first citing In re Blech

Sec. Litig., No. 94-CV-7696, 2003 WL 1610775, at *21–22 (S.D.N.Y. Mar. 26, 2003); and then

citing Highland Cap. Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 187–88 (S.D.N.Y. 2008))).

Accordingly, the Court admits Dr. Saathoff’s expert opinion regarding the side effects of Lane’s

prescribed medications and how those medications could affect Lane, such as impairing her

memory. (See, e.g., Saathoff Rep. 31, 33.)

The Court therefore (1) excludes Dr. Saathoff’s expert opinion regarding Lane’s factual

narrative to the extent that Dr. Saathoff did not conduct additional or independent analysis, (see,

e.g., Saathoff Rep. 34 (conclusions regarding exaggeration)); and (2) admits Dr. Saathoff’s

expert opinion regarding the side effects of Lane’s prescribed medications and how those

medications could affect Lane, (id. at 31, 33).

iii. Defendant’s motion to exclude Kim E. Petersen’s opinion

Defendant moves to exclude the expert opinion of Plaintiffs’ “Transportation Security

Expert,” Kim E. Petersen. (Def.’s Mem. 4–7, 13–23; see also Petersen Rep.)

1. Petersen’s background and expert opinion

Petersen is a “multi-modal transportation security specialist” employed as President of

Security Dynamics LLC. (Petersen Rep. 1.) He has over forty years of “combined experience in

maritime security, special operations, national security, and intelligence operations,” having

“specialized in transportation security” since 1995. (Id. at 1, 27.) His experience includes

developing “security standards and practices for aviation, rail, cruise, and maritime operations.”

(Id. at 1.) He has served as director of security for former Secretary of State, Alexander M.

Haig, and as chief of security operations for the Presidential Transition for President George

H.W. Bush. (Id. at 28–29.) Starting in 1995, he worked with various cruise companies

developing “global security and counterterrorism program[s],” eventually being elected as

executive director of the Maritime Security Council, holding that position for nine years until

2006. (Id. at 29.) During this time, he also taught counterterrorism and transportation security to

“the US Navy, [US Coast Guard], Army, FBI, foreign law enforcement and intelligence services,

and numerous state and local police departments and transportation authorities.” (Id.) He is

currently the president of Security Dynamics LLC, a company he founded. (Id. at 1, 27–28.)

Plaintiffs asked Petersen to present his opinion on “aviation security practices” and on

“security measures and actions relating to” the present case. (Id. at 1.) In particular, Plaintiffs

asked him to determine “whether passenger terminal staff, cabin crew, and officers of [the

Flight] followed [Defendant]’s preventive security policies established to detect and deter

intoxicated passengers from boarding their aircraft or being served alcoholic beverages while

onboard”; “if the measures employed by [the Flight]’s aircraft crew were in compliance with

applicable company policies and the passenger aviation transportation industry’s best practices”;

and “if [Defendant] provided a safe and secure environment for its passengers during [Lane’s]

flight.” (Id. at 4–5.) In preparing his report, Petersen reviewed numerous regulatory documents,

including federal regulations concerning flight crew training and alcoholic beverages to be

served on flights, along with various other transportation security acts and guidance documents.

(Id. at 7–9.) He also reviewed all case documents available to him, including the parties’ moving

papers, deposition transcripts, and exhibits. (Id.) These exhibits included Defendant’s own

policy and guidance documents. (Id.) Most of Petersen’s report consists of summaries of

various witnesses’ deposition testimony, including that of Lane, a neighboring passenger, and a

retired pilot who was also a passenger on the Flight. (See id. at 15–23.) These summaries are

interspersed with Petersen’s views, described below, regarding whether the Flight crew

appropriately responded to Santiago and the complaints received during the Flight.

In his report, Petersen opined that the Flight crew failed to comply both with federal

regulations and industry best practices, citing, inter alia, 14 C.F.R. § 121.575(c), which prohibits

the boarding of “any person . . . if that person appears to be intoxicated.” (See id. at 9–10.)

Based on his review of the deposition transcripts, Petersen concluded that the “[F]light crew

failed to effectively screen and deter Mr. Rene Santiago, who was immediately recognized as

seriously inebriated by several passengers,” and that this failure was “due to a lack of training.”

(Id. at 10.) He wrote that “[i]n the absence of such training, [Defendant] could have posted the

[International Air Transport Association (“IATA”)] chart in crew lounges and aircraft to assist

[flight attendants] in identifying the warning signs of inebriation but chose not to.” (Id.)

Petersen highlighted that the IATA’s “Traffic Light System” chart warns that people who are

“[g]lassy-eyed, walking awkwardly, stumbling or falling down and spilling drinks” likely “had

too much to drink” and are possibly intoxicated. (Id. at 13.) He also recounted the testimony of

other passengers — including that of the passenger seated next to Santiago, two seats away from

Lane — and comments that their observations reflect that Santiago’s inebriation was

“immediately apparent,” meaning that the Flight crew “either failed to scrutinize Mr. Santiago or

elected to ignore his stumbling and smell of alcohol.” (Id. at 10–12.) Petersen’s view is that

based on the depositions and available case documents, Defendant “does not have a company

policy on preventing sexual assault onboard their passenger aircraft,” based on the crew’s

inability to recall any training or guidance. (Id. at 15 (emphasis omitted).) Petersen suggested

that this lack of training and refusal to screen passengers could be linked to “increased pressure

placed upon flight crews to decrease late departures” because of “the US Department of

Transportation’s decision to publicize and rank airlines by their late arrivals.” (Id. at 14.) He

reported that “screening passengers for inebriation is viewed by the flight crew as risky,” as it

could lead to lawsuits, disciplinary action, and further delays in flight departures. (Id.)

Petersen also faulted the Flight crew for failing to respond appropriately to complaints

that were made during the Flight. He pointed to a flight attendant’s testimony that Lane had

complained that Santiago was sexually harassing her. (Id. at 17.) Petersen explained that “one

of the fundamental employee requirements taught in transportation security and safety classes” is

that “once such an allegation has been made to an official representative of the carrier . . . that

representative has the obligation to report the incident through their chain-of-command.” (Id. at

17–18.) Basing his view on the American Airlines Customer Incident Guide, Petersen reported

that the crew should have filed a “Passenger In-Flight Disturbance Report (PIDR)” against

Santiago upon receiving the complaint, and further should have interviewed both Lane and

Santiago, “ensur[ing] that they were separated and kept under observation throughout the flight,

and report[ing] the incident by radio to law enforcement at the arrival airport.” (Id.)

Finally, Petersen explained that it is “recognized within the transportation industry that

the majority of sexual assaults will occur at night when visibility and activities on an aircraft . . .

are reduced,” yet the Flight crew failed to conduct regular walkthroughs. (Id. at 18–19.) In

Petersen’s opinion, “had the crew of [the Flight] recognized that Mr. Santiago represented a

potential problem, they would have directed the crew to focus on him during their walkthroughs,

. . . recogniz[ing] that Ms. Lane was being physically and sexually harassed by an inebriated

passenger and at risk.” (Id. at 19.) In Petersen’s view, this error was further compounded by the

Flight crew’s failure to station crew members “in the rear of the aircraft” where the assault

allegedly occurred. (Id. at 18–19.) He opined that if crew members were “at the aft station on

the aircraft during the night, Mr. Santiago would not have been able to break in to Ms. Lane’s

lavatory and rape her without such act being witnessed by a crew member.” (Id. at 19–20.)

2. The Court excludes in part and admits in part Petersen’s

expert opinion

Defendant argues that the Court should exclude Petersen’s opinion because he is not

qualified “to opine on very specific issues addressing [Defendant]’s compliance with federal

regulations and industry standards,” and “because all of the opinions expressed in his [r]eport are

either impermissible legal conclusions or his own unsupported interpretations of evidence

already available to the jury.” (Def.’s Mem. 15–16.)

Plaintiffs argue that Petersen’s experience sufficiently qualifies him to provide his

opinion, and that his statement of facts simply lays a foundation to support his opinion. (Pls.’

Opp’n 3, 17–18.)

A. Qualifications

Defendant first argues that though Petersen has “generalized experience in transportation

security,” he is “not qualified to opine upon the very specific issues Plaintiffs have asked him to

address.” (Def.’s Mem. 15–16.) In support, Defendant asserts that Petersen has no experience

“regarding industry standards for the regulation of intoxicated boarding and service of alcohol on

commercial airlines.” (Id. at 17.) Rather than having Petersen offer his opinion on these

practices, Defendant argues, Plaintiffs should have sought the expertise of “pharmacologists,

toxicologists, or some sort of dram shop and alcohol beverage regulation expert.” (Id.)

Defendant further argues that Petersen’s background “does not qualify him to provide expert

testimony regarding industry standards for sexual assault prevention on commercial airlines.”

(Id. at 18–19.) In support, Defendant faults Petersen for failing to show how “his purported

expertise is related to the particular facts surrounding the alleged sexual assault in this case.” (Id.

at 18.) Defendant asserts that the only relevant experience of his related to sexual assault

prevention is an “e-Learning program” that Petersen allegedly authored, but that this program “is

tailored towards maritime and military standards, not commercial aviation” and “is neither cited

nor referenced anywhere in Petersen’s Report.” (Id. at 19.)

Plaintiffs respond that “Rule 702 does not demand that a witness’s expertise be perfectly

tailored to the facts of the case.” (Pls.’ Opp’n 16.) They argue that Petersen need not be an

“expert . . . formally educated in the relevant subject matter” when he has “gained specialized

knowledge through experience or training,” and that this “‘experience alone — or experience in

conjunction with other knowledge, skill, training, or education’ is sufficient to qualify Mr.

Petersen as an expert.” (Id. at 3 (quoting Fed. R. Evid. 702 advisory committee’s notes).) Any

disputes regarding Petersen’s methodology or basis for his opinion, Plaintiffs contend, “go to the

weight, not the admissibility, of his testimony.” (Id. at 16 (quoting McCullock v. H.B. Fuller

Co., 61 F.3d 1038, 1044 (2d Cir. 1995)).) Plaintiffs next point to the fact that in the face of

rising concerns over sexual assaults in commercial flights, Congress established a task force to

advise the Secretary of Transportation on best practices for air carriers. (Id. at 11–12.) Plaintiffs

highlight as particularly relevant that when the task force learned that most airlines “do not train

their employees specifically on handling incidents of sexual misconduct,” it “looked at training

practices in the cruise and hotel and restaurant industries as part of its discussion on airline

training programs to address in-flight sexual misconduct.” (Id. at 12 (internal quotation marks,

emphasis, and footnote omitted).) Plaintiffs argue that “[i]t is hard to imagine witness

availability from airline industry experts concerning prevention of airborne sexual assaults, when

Congress could not find one and instead referred to those experts in the cruise industry, such as

Mr. Petersen.” (Id. at 17.) Similarly, Plaintiffs argue that when Defendant’s own “designee on

in-flight drink service, drink counts, the appearance of persons who appear to be intoxicated, or

identifying intoxication could not identify their supposed Subject Matter Experts,” Defendant

cannot argue that Petersen is unqualified to testify as an expert. (Id.) Plaintiffs argue that to

allow Defendant to exclude Petersen while failing to identify its own expert on the matter would

amount to “letting [the airline] industry indirectly set its own standards.” (Id. (quoting Stagl v.

Delta Air Lines, Inc., 117 F.3d 76, 82 (2d Cir. 1997)).)

In some cases, “a district court may properly conclude that witnesses are insufficiently

qualified despite the relevance of their testimony because their expertise is too general or too

deficient.” Stagl, 117 F.3d at 81; see also Lickteig v. Cerberus Cap. Mgmt., L.P., 589 F. Supp.

3d 302, 328–29 (S.D.N.Y. 2022) (quoting the same). However, even if a proposed expert lacks

such specific training or experience, “he may still have ‘practical experience’ or ‘specialized

knowledge’ qualifying him to give opinion testimony under Rule 702.” Lickteig, 589 F. Supp.

3d at 328 (citing McCullock, 61 F.3d at 1043). In such cases, the court must “compare the area

in which the witness has superior knowledge, education, experience, or skill with the subject

matter of the proffered testimony.” United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004)

(citing United States v. Diallo, 40 F.3d 32, 34 (2d Cir. 1994)). “If the expert has educational and

experiential qualifications in a general field closely related to the subject matter in question, the

court will not exclude the testimony solely on the ground that the witness lacks expertise in the

specialized areas that are directly pertinent.” In re Zyprexa Prods. Liab. Litig., 489 F. Supp. 2d

230, 282 (E.D.N.Y. 2007) (citing Stagl, 117 F.3d at 80). “Assertions that the witness lacks

particular educational or other experiential background, ‘go to the weight, not the admissibility,

of [the] testimony.’” Zyprexa Prods., 489 F. Supp. 2d at 282 (quoting McCullock, 61 F.3d at

1044).

The Court is not persuaded by Defendant’s argument that Petersen’s “general expertise as

a transportation security expert,” (Def.’s Mem. 16), makes him unqualified to opine on whether

the crew of the Flight followed Defendant’s “preventive security policies,” whether they “were

in compliance with . . . the passenger aviation transportation industry’s best practices,” or

whether Defendant “provided a safe and secure environment for its passengers during the

Plaintiff’s flight,” (Petersen Rep. 4–5). Defendant attempts to contrast Petersen’s background

with that needed to testify on “industry standards for the regulation of intoxicated boarding and

service of alcohol on commercial airlines” or on “industry standards for sexual assault

prevention on commercial airlines.” (Def.’s Mem. 17–18.) Not only is this an overly narrow

interpretation of the subject matter of Petersen’s report, but an expert need not specialize in these

specific topics to provide helpful context on prevailing safety practices in the transportation

industry or to comment on whether employees properly complied with company policies.

“[W]here an expert possesses qualifications in a ‘general field closely related to the subject

matter in question, the court will not exclude the testimony solely on the ground that the witness

lacks expertise in the specialized areas that are directly pertinent.’” Hilaire v. DeWalt Indus.

Tool Co., 54 F. Supp. 3d 223, 236 (E.D.N.Y. 2014) (quoting Deutsch v. Novartis Pharm. Corp.,

768 F. Supp. 2d 420, 425 (E.D.N.Y. 2011)). Petersen’s background includes experience

advising on security matters for cruise lines and shipping companies, and on transportation

security for law enforcement. (Petersen Rep. 28–29.) As part of his work developing safety

protocols for Princess Cruises, he participated in developing “comprehensive programs” to

address “sexual assaults onboard cruise ships” and “other issues of criminality onboard the

vessels.” (Dep. of Kim E. Petersen 212:12–24, annexed to Pls.’ Mem. as Ex. 1, Docket Entry

No. 91-1.) He worked with other subject matter experts and conducted “extensive research” to

develop the training program that was ultimately “duplicated by other cruise lines” to address

sexual assault and sexual harassment onboard the cruise ships. (Id. at 214:2–215:24.) Even if

Petersen did not undergo a formal training himself, his “background and practical experience

qualify as ‘specialized knowledge’” that supports admission of his testimony under Daubert. See

McCullock, 61 F.3d at 1043 (admitting an expert’s testimony on “fume dispersal” based on his

“practical experience,” despite his lack of “academic training”). To the extent Defendant

believes Petersen’s practical experience weakens his opinion, that experience can “properly [be]

explored on cross-examination” and go to his testimony’s “weight and credibility — not its

admissibility.” Id. (citing Fernandez v. Chios Shipping Co., 542 F.2d 145 (2d Cir. 1976)).

B. Impermissible legal conclusions and interpretation of

the evidence

Defendant also argues that Petersen’s proffered testimony consists of either

“impermissible legal conclusions or nothing more than Petersen’s own interpretations of

regulatory and discovery documents in this case, unsupported by and unconnected to any of his

purported expertise.” (Def.’s Mem. 19–23.) In particular, Defendant faults as a legal conclusion

Petersen’s opinion that the crew of the Flight “failed to comply with federal regulations.” (Id. at

20.) Defendant also points to Petersen’s conclusions “regarding [Defendant]’s alleged failure to

meet industry standards” as insufficiently supported by his purported expertise. (Id. at 20–21.)

These “baseless conclusions,” Defendant argues, “cannot withstand the reliability standard of

Rule 702.” (Id. at 20.) Defendant further argues that the Court should not admit expert

testimony that is based “upon the interpretation of discovery evidence (such as regulatory

documents) already available to the factfinder and not upon the expert’s own proffered

expertise.” (Id. at 21–22.) Defendant asserts that Petersen also cannot base his conclusions on

“his review of various deposition transcripts” for this same reason. (Id.) Finally, Defendant

points to other cases in which courts have excluded Petersen’s testimony “where his opinion was

either based on nothing more than his interpretation of evidence already available to the trier of

fact or ultimately unhelpful to the jury in determining issues relevant to litigation, just like he

attempts here.” (Id. at 22.)

Plaintiffs argue that “[i]t is premature for [Defendant] to seek to prevent Mr. Petersen

from stating facts he set forth in his [r]eport laying a foundation to support his opinions and/or

his interpretation of the facts.” (Pls.’ Opp’n 17.) Plaintiffs outline numerous parts of Petersen’s

report and argue that the highlighted excerpts rely on “his experience, the [Federal Aviation

Administration] Report, and review of the evidence in this case.” (Id. at 19–22.) Accordingly,

they argue that Petersen’s opinions should be presented to a jury “to decide the weight to which

his opinions are entitled.” (Id. at 22.)

The Court excludes any portion of Petersen’s report and testimony that expresses a legal

conclusion — specifically, Petersen’s opinion that Defendant’s staff “failed to comply with Title

14 Code of Federal Regulation, Section 121.575(c)” is inadmissible. (Petersen Rep. 10.)

Regardless of underlying expertise, “experts may not testify as to conclusions of law,” because

“[d]oing so would usurp the role of the court in determining the applicable legal standards.”

Floyd v. City of New York, 861 F. Supp. 2d 274, 287 (S.D.N.Y. 2012) (first citing United States

v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991); and then citing United States v. Lumpkin, 192

F.3d 280, 289 (2d Cir. 1999)).

However, the Court is not persuaded by Defendant’s contention that Petersen’s opinions

as to “industry standards” must be excluded. (Def.’s Mem. 20–21.) Although Defendant argues

that these opinions are “entirely unsupported” and “cite to ‘common sense’ as a basis,” (id.),

Petersen’s report reflects that he relied on the IATA’s Traffic Light System, its “Guidance on the

Safe Service of Alcohol on Board,” Petersen’s own experience from trainings given to federal

law enforcement, and his review of Defendant’s own policy documents, (Petersen Rep. 10, 11

n.15, 13 & n.19, 17). For example, Petersen explains that the IATA “Traffic Light System” chart

is meant to guide crew members on “how to evaluate a person’s possible intoxication so as to

determine their relative risk during the flight,” and that the chart flags as potentially disruptive to

flight operations someone who is “[g]lassy-eyed, walking awkwardly, stumbling or falling down

and spilling drinks.” (Id. at 13.) Elsewhere, he relies on his experience in the industry to explain

that “there has been increased pressure placed upon flight crews to decrease late departures” ever

since “the US Department of Transportation’s decision to publicize and rank airlines by their late

arrivals,” and that “screening passengers for inebriation is viewed by the flight crew as risky” for

this reason. (Id. at 14 (internal quotation marks omitted).) Similarly admissible are Petersen’s

opinions as to the proper response to a complaint of sexual harassment onboard a flight. (See id.

at 17–18.) Notwithstanding Defendant’s arguments to the contrary, these bases for Petersen’s

opinions on industry standards do not amount to the kinds of “serious flaws in reasoning or

methodology” that warrant exclusion. In re Fosamax, 645 F. Supp. 2d at 173 (citing

Amorgianos, 303 F.3d at 267). Petersen’s views are “based on data — including personal

experience, interviews, review of . . . manuals and other primary sources . . . ‘of a type

reasonably relied upon by experts in various disciplines of social science.’” Vazquez v. City of

New York, No. 10-CV-6277, 2014 WL 4388497, at *12 (S.D.N.Y. Sept. 5, 2014) (quoting Katt v.

City of New York, 151 F. Supp. 2d 313, 357 (S.D.N.Y. 2001)); see also Kumho Tire, 526 U.S. at

148–49 (acknowledging that in some disciplines, the reliability inquiry may turn on the expert’s

“knowledge and experience of his discipline” rather than on “scientific” or “technical”

knowledge (quoting Daubert, 509 U.S. at 592)). Any perceived weaknesses in Petersen’s

foundation for these opinions “are fair ground for cross-examination, but they are not a basis for

preclusion.” Vazquez, 2014 WL 4388497, at *12; see also Daubert, 509 U.S. at 596 (“Vigorous

cross-examination, presentation of contrary evidence, and careful instruction on the burden of

proof are the traditional and appropriate means of attacking shaky but admissible evidence.”).

Finally, the Court excludes those portions of Petersen’s report that “construct a factual

narrative based upon record evidence.” Jensen v. Cablevision Sys. Corp., 372 F. Supp. 3d 95,

116 (E.D.N.Y. 2019). “Under Rules 701 and 702, opinions must be helpful to the trier of fact,

and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford

ample assurances against the admission of opinions which would merely tell the jury what results

to reach.” Hygh v. Jacobs, 961 F.2d 359, 363–64 (2d Cir. 1992). An expert may not “simply

rehash[] otherwise admissible evidence about which he has no personal knowledge,” and

“[w]hile an expert must of course rely on facts or data in formulating an expert opinion, an

expert cannot be presented to the jury solely for the purpose of constructing a factual narrative

based upon record evidence.” Highland Cap., 379 F. Supp. 2d at 468–69 (citing Fed. R. Evid.

703); see also In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d at 551 (excluding portions of an

expert opinion that presented “a narrative reciting selected regulatory events” because “[s]uch

material, to the extent it is admissible, is properly presented through percipient witnesses and

documentary evidence”). But see B & R Supermarket, Inc. v. Mastercard Int’l Inc., No. 17-CV-

2738, 2021 WL 234550, at *13 (E.D.N.Y. Jan. 19, 2021) (admitting an expert’s narrative

because it was not presented “for the purpose of drafting a facts section and speculating about

[d]efendants’ agents’ state of mind and motivations, . . . but for the purpose of evaluating” the

evidence in light of expert’s expertise). Moreover, the Second Circuit “has consistently held that

expert opinions that constitute evaluations of witness credibility, even when such evaluations are

rooted in scientific or technical expertise, are inadmissible under Rule 702.” Nimley, 414 F.3d at

398 (first citing Lumpkin, 192 F.3d at 289; and then citing Scop, 846 F.2d at 142–43).

Extensive portions of Petersen’s report simply “rehash[] otherwise admissible evidence,”

Jensen, 372 F. Supp. 3d at 116, seemingly for no other purpose than to “construct[] a factual

narrative based upon record evidence,” Highland Cap., 379 F. Supp. 2d at 469. Much of his

report is spent summarizing the testimonies of Lane, various other passengers, and crew

members on the Flight. (See, e.g., Petersen Rep. 11–23.) He effectively “tell[s] the jury what

results to reach,” Hygh, 961 F.2d at 363, when he opines, for example, that “[i]t should have

been apparent to both the gate agents and the crew that Mr. Santiago was inebriated and unfit to

be boarded,” (Petersen Rep. 11). Similarly, Part 3 of his “Opinions” section consists of nothing

other than Petersen’s own summary of the testimonies of Lane, the neighboring passenger, and

the passenger flight captain who observed the incident. (Id. at 15–17.) The Court excludes such

portions of Petersen’s report that merely restate what could be presented to a jury “through

percipient witnesses and documentary evidence.” See In re Rezulin, 309 F. Supp. 2d at 551.

For the above reasons, the Court (1) excludes Petersen’s opinion that Defendant’s staff

“failed to comply with Title 14 Code of Federal Regulation, Section 121.575(c),” (Petersen Rep.

10); (2) admits Petersen’s opinions as to “industry standards”; and (3) excludes those portions of

Petersen’s report that would be “presented to the jury solely for the purpose of constructing a

factual narrative based upon record evidence,” Highland Cap., 379 F. Supp. 2d at 469 (citing

Fed. R. Evid. 703).

iv. Defendant’s motion to exclude Dr. Sheri Vanino’s opinion

Defendant moves to exclude Plaintiffs’ psychology expert, clinical psychologist Dr. Sheri

Vanino. (Def.’s Mem. 23–30; see also Vanino Rep.)

1. Dr. Vanino’s background and expert opinion

Dr. Vanino has “[seventeen] years of experience as a licensed clinical psychologist with

an expertise in sexual assault and [twenty-four] years in the mental health field, working directly

and indirectly with thousands of sexual assault survivors.” (Vanino Rep. 4.) Her work has

“focused on trauma assessment and treatment,” including work as clinical director of a rape

crisis center in Colorado, as a referral specialist at a hospital emergency department, in a

psychiatric inpatient rehabilitation center, as a forensic expert, and as an adjunct professor.

(Decl. of Dr. Sheri Vanino (“Vanino Decl.”) 21–22, annexed to Pls.’ Opp’n as Ex. 6, Docket

Entry No. 91-6.) She regularly testifies in criminal cases, and has also provided trauma

treatment instructions to “police agencies, the [Federal Bureau of Investigation], Planned

Parenthood, and various district attorney’s offices.” (Id. at 22.)

Plaintiffs retained Dr. Vanino “to address the psychological impact of the sexual assault

that Ms. Lane endured at the hands of Rene Santiago when he sexually assaulted her.” (Vanino

Rep. 4.) In preparing her report, Dr. Vanino conducted a psychological interview of Lane and

had her complete five psychological tests, measuring “levels of 1) depression, 2) anxiety, 3)

dissociative symptoms, and 4) trauma symptomology.” (Id. at 6.) She also conducted three

follow-up interviews with Lane, and reviewed the depositions of Plaintiffs, the neighboring

passenger, and the passenger flight captain. (Id.) In addition, Dr. Vanino reviewed numerous

case documents and Lane’s available health records, and she also conducted a phone interview

with a trauma therapist who treated Lane after the alleged sexual assault. (See id. at 5–6, 13.)

Dr. Vanino’s report first reviewed Lane’s childhood, including the trauma and abuse she

suffered from her biological father as well as her babysitter’s sons. (Id. at 8.) This background

included details about the violent behavior of her first husband when she was twenty-one years

old. (Id. at 9.) Dr. Vanino then summarized the sexual assault Lane allegedly suffered onboard

the Flight, as well as the treatment she sought out afterwards. (Id. at 9–13.)

Dr. Vanino then proceeded to discuss the “[m]any myths [that] exist around the topic of

sexual assault,” including the “seemingly counterintuitive” behaviors that survivors of sexual

assault exhibit during and after an assault. (Id. at 13–20.) She explained, for example, that

“most victims of sexual assault do not fight back during an assault . . . due to the profound

confusion and terror they experience during a traumatic event.” (Id. at 14.) Similarly, Dr.

Vanino explained that “[v]ictims of violence, sexual assault, or similar trauma may dissociate

during the crime or continue to dissociate afterward.” (Id. at 15–16.) These same processes, she

wrote, “also affect[] the victim’s memory of the traumatic incident,” leading to “severe memory

deficits.” (Id. at 16–17.) She commented, for example, that it is “not at all bizarre that [Lane]

does not recall whether she was exiting the bathroom when Mr. Santiago entered or whether she

was actually sitting on the toilet.” (Id. at 17.) Finally, she explained that any “[d]elay in

reporting” the incident was “not uncommon” among sexual assault victims. (Id. at 18–20.)

Dr. Vanino also detailed the effects of the alleged sexual assault on Lane’s mental health

in her report. (See id. at 20–43.) She first opined that “the assault has complicated and impacted

every aspect of [Lane’s] life, including her health, self-esteem, career, education, relationships,

parenting abilities, marriage, intimacy, and trust in herself and the world.” (Id. at 20.) Dr.

Vanino set forth the literature linking sexual assault and other nonsexual trauma to depression.

(Id. at 20–21.) She explained that “sexual assault victims have higher levels of depression and

lower levels of self-esteem,” and that “depression often becomes a lifetime diagnosis.” (Id. at 20

(internal quotation marks omitted).) She then outlined the numerous symptoms of depression

that Lane continues to exhibit years after the alleged sexual assault. (Id. at 22–23.) These

symptoms include “daily crying spells, decreased sex drive, a mix of hypersomnia and insomnia,

and constantly feeling sad and angry,” as well as “low self-esteem, irrational guilt, shame,

constant fatigue, and a lack of motivation.” (Id. at 22.) Dr. Vanino notes that “Lane has

struggled on and off throughout her life with both depression and anxiety,” and that she took

antidepressants when she was in college, after she became pregnant, and later when she lost a

pregnancy, as well. (Id.) She writes that notwithstanding her earlier depression, Lane reports

that “since the rape, her depression and anxiety have intensified and often interrupt her daily

functioning.” (Id.) Although Dr. Vanino does not comment definitively on whether the alleged

assault exacerbated Lane’s depression, she does conclude that “Lane’s medical records

repeatedly document her intense struggles with depression since the rape.” (Id. at 23.) Dr.

Vanino further notes that the tests she conducted placed Lane between the 77th and 98th

percentile in depression. (Id.)

Dr. Vanino then considered the extent to which the alleged assault affected and

exacerbated Lane’s anxiety. (Id. at 23–25.) She first reviewed the literature and highlighted that

“[f]or many victims of sexual assault, anxiety typically becomes something they spend a lifetime

attempting to manage.” (Id. at 23.) Dr. Vanino then noted that “Lane has suffered from anxiety

for most of her life, including social anxiety and perfectionism.” (Id. at 24.) She acknowledged

that Lane’s preexisting anxiety was linked to fear “that her biological father would find her,” but

concluded that “since being raped by Mr. Santiago, the fear has not only returned but has become

debilitating,” detailing Lane’s report that “she no longer trusts men and is fearful that she will be

sexually assaulted again.” (Id.) Dr. Vanino included several examples of Lane’s behavior that

reflect this fear, including “in seemingly innocuous situations.” (Id.) This “generalized fear of

men,” Dr. Vanino explained, is common in “many victims of sexual assault.” (Id.) She also

explained that Lane’s fear “underscores not only an inability to trust men but also a new concern

that she cannot trust herself.” (Id. at 25.) Dr. Vanino concluded that Lane’s distrust in her own

instincts “has an enormous crippling effect on everyday functioning and basic freedom to live

life.” (Id.) In addition, Dr. Vanino noted that Lane’s “frequent panic attacks” since the alleged

assault “are a debilitating form of anxiety” that occur “roughly once a week.” (Id.) The tests

that Dr. Vanino conducted showed that Lane scored in the 95th to 99th percentile in anxiety,

“indicat[ing] that Ms. Lane is struggling considerably with anxiety.” (Id.)

Dr. Vanino then addressed Lane’s PTSD diagnosis, opining that “it is apparent and

reflected in her testing that Ms. Lane suffers from [PTSD].” (Id. at 26–33.) She summarized the

various categories of PTSD to which Lane’s symptoms are linked. (Id.) She first discussed how

Lane is “reexperiencing,” a phenomenon that occurs “when a victim of trauma continues to

relive or replay a traumatic event.” (Id. at 28–29.) Dr. Vanino detailed the various ways in

which Lane “replays the assault in her mind,” “go[ing] over and over her own behavior, thinking

how she could have handled the situation differently.” (Id. at 28.) Dr. Vanino listed the

numerous “triggers that remind her of the sexual assault,” and how these “triggers lead to

nightmares, which result in disturbed sleep with even more exhaustion and depression.” (Id. at

28–29.) Lane’s PTSD also manifests through her “avoidance of trauma-related stimuli,”

meaning that she frequently has to distract herself with television or chores to avoid thinking

about the assault, or avoids being alone with men. (Id. at 29–30.) Her PTSD leads to “negative

cognition and mood,” including “a persistent and distorted sense of blame of self or others,

estrangement from others, markedly diminished interest in activities, or considerable and

persistent negative emotions like depression, fear, anxiety, and anger.” (Id. at 30.) Lastly, Dr.

Vanino opined that Lane’s trauma symptoms manifest as “trauma-related arousal of the nervous

system.” (Id. at 30.) In Lane’s case, these symptoms include “difficulty concentrating,” anxiety,

hypervigilance, “difficulty calming her body,” “heightened startle reactions,” panic attacks,

“occasional flashbacks,” and “periods of extreme hypo and hypersomnolence.” (Id.) Dr. Vanino

observed, however, that “since the rape, . . . [Lane’s] most challenging emotional struggle has

been controlling her anger.” (Id. at 31.) “Rage has hijacked Ms. Lane’s mental stability and

overwhelmed most aspects of her life,” Dr. Vanino wrote. (Id.) Since the alleged assault, Dr.

Vanino reported that Lane “began getting so angry that she would scream, break dishes, and

physically attack her husband, sometimes in front of her son.” (Id.) This behavior led Lane to

check herself into a “[seven]-week psychiatric treatment program to be treated for anxiety,

PTSD, and angry outbursts.” (Id.) Dr. Vanino concluded by noting that Lane’s “testing results

support a PTSD diagnosis,” with the various tests placing her above the 80th percentile of

numerous PTSD symptoms. (Id. at 32–33.)

Dr. Vanino then discussed Lane’s substance abuse, explaining that — consistent with the

“substantial amount of research supporting the fact that many sexual abuse survivors are at

increased risk for post-assault substance abuse” — “[a]fter Ms. Lane was raped, her drinking

dramatically escalated on a regular basis.” (Id. at 33.) Dr. Vanino acknowledged that Lane

“developed a problem with alcohol around the age of 23 or 24,” well before the alleged assault,

but observed that her alcohol use led to her becoming “more physically aggressive” and even

“becoming physically abusive and blacking out several times per week” — something that had

not occurred prior to the alleged assault. (Id.) Although Lane apparently stopped consuming

alcohol in 2020, Dr. Vanino reported that Lane “continues to constantly use marijuana as a

means of numbing overwhelming emotions.” (Id. at 33–34.)

Based on the reports of the alleged incident, Dr. Vanino also explained that Lane

“experienced a high level of social betrayal from the flight crew on [the Flight],” potentially

leading “to negative long-term mental health outcomes and . . . the development of PTSD.” (Id.

at 34.) Dr. Vanino wrote that in such cases, “the victim often feels abandoned and begins

questioning the dependability and trustworthiness of the general public.” (Id.) In Dr. Vanino’s

opinion, social betrayal is one of “the most salient factors” that “affect whether a sexual assault

victim will develop adverse mental health effects.” (Id.)

Dr. Vanino next discussed the impact that the alleged assault has had on Lane’s

relationships. (Id. at 35–39.) She wrote that it is common for a “survivor’s quality of

relationships to decline after a sexual assault,” and that “Lane’s relationships have certainly been

affected.” (Id. at 35.) Dr. Vanino discussed Lane’s difficulty “maintaining friendships” and

meeting new people, preventing her from partaking in social activities like taking her son to the

park. (Id. at 35–36.) Lane reported to Dr. Vanino, however, that “the most significant effect the

rape has had on her life was the implosion of her marriage to Jesse Lane.” (Id. at 36–37.) She

reported that though the two were once “happily married,” the marriage is “permanently broken”

after the alleged incident. (Id. at 36.) Relatedly, Lane reported to Dr. Vanino that after the

alleged assault, she struggled with intimacy, exacerbating the difficulties in her marriage. (Id. at

37–38.) Dr. Vanino explained that this experience is “not uncommon,” as survivors are “known

to have decreased sensuality and higher levels of anxiety during sexual activity,” while other

studies “indicate that sexual assault is also associated with increased negative communication

and hostility between romantic partners.” (Id. (internal quotation marks omitted).) Finally, Dr.

Vanino discussed how “[s]ince the rape, Ms. Lane has struggled with parenting.” (Id. at 38–39.)

Though Dr. Vanino’s report indicated that Lane has never been physically aggressive with her

six-year-old son, Lane reported getting much angrier with him while also being unable to give

him the attention she needs because of her depression, anxiety, and PTSD. (Id.) Lane also

“carries heavy guilt and shame for the divorce and for the effect that will have on their son.” (Id.

at 39.) According to Dr. Vanino, research shows that “parents suffering with PTSD” often tend

to experience these difficulties with their children. (Id. at 38.)

Dr. Vanino then considered the impact that the alleged assault had on Lane’s preexisting

trauma. (Id. at 39–40.) She summarized research that shows “the more traumatic experiences

that victims of sexual assault endure, the higher are the levels of symptoms such as anxiety,

depression, and dissociation.” (Id. at 39.) These repeated incidents can also “affect[] a client’s

rate of recovery, which then affects the efficacy of mental health treatment,” leading to “more

complex PTSD and [the] need [for] more experienced treatment providers for longer periods of

treatment.” (Id.) Consistent with this research, Dr. Vanino concluded that “there is no doubt that

the current assault has exacerbated [Lane’s] prior trauma.” (Id.) Dr. Vanino wrote that “it is

impossible to separate out Ms. Lane’s prior trauma history” when “evaluating the impact of the

rape,” but she explained that “Lane is able to easily describe the ways that the rape has fueled her

prior trauma.” (Id.) Dr. Vanino described how the alleged assault has brought back many of the

fears she used to experience, including the fear of . (Id. at 40.) Lane has

been revisiting the prior traumas she experienced and “thinks of herself now as a child sexual

abuse victim more than she ever has.” (Id.) Dr. Vanino concluded that this is consistent with

research indicating that “many people with trauma history, such as rape, spouse battering, and

child abuse, seem to function relatively well as long as feelings related to the traumatic memories

are not stirred up.” (Id. (citation and internal quotation marks omitted).)

Turning next to the effect of the assault on Lane’s “long-term physical health,” Dr.

Vanino explained that many studies “establish links between trauma, the impact of psychological

stress on the body, and poor health.” (Id. at 41–42.) These studies showed that prolonged and

repeated “exposure to the body’s flight, fight, or freeze response” can lead to “many lifelong

health problems.” (Id. at 41.) Dr. Vanino concluded that “[n]ot surprisingly, the rape has

impacted Ms. Lane’s health.” (Id.) Lane reported weight loss, lack of sleep, migraines, and

vomiting when triggered. (Id. at 41–42.) The repeated migraines — occurring “on average

twice per month and typically last[ing] a full day” — were evidently not an issue for Lane “prior

to the rape.” (Id.)

Finally, Dr. Vanino discussed the impact of the alleged assault on “current employment

and future earning potential.” (Id. at 42–43.) While she previously “was on the rise as a

successful realtor,” she has since been “unable to continue showing homes due to anxiety and

fear for her safety.” (Id. at 42–43.) Lane has returned to her former employer, but “she has not

started selling homes and therefore still doesn’t have an income,” leaving her future “uncertain.”

(Id. at 43.) Dr. Vanino explained that Lane’s experience is consistent with research showing that

“sexual assault and the related trauma response can disrupt survivors’ employment in several

ways,” and that work can often be missed “due to the effects of stress on the body, a decline in

physical health, and increased physicians’ visits.” (Id.)

Dr. Vanino concluded her report by recommending various types of “therapeutic and

psychiatric treatment” for Lane, but highlighting that she needs “consistent long-term individual

therapy with a trauma treatment provider.” (Id. at 44–48.) As a “conservative estimate” of what

Lane might need in the future, Dr. Vanino recommended inpatient trauma treatment, individual

trauma-specific treatment, group therapy for sexual assault survivors, dialectic behavior group

therapy, eye movement desensitization reprocessing, psychiatric treatment, couples therapy,

trauma-specific yoga, and “Model Mugging.” (Id.) In total, she estimated that the cost of future

recommended treatment could range from $324,880 to $467,680. (Id. at 48.)

2. The Court admits Dr. Vanino’s expert opinion

Defendant argues that the Court should exclude Dr. Vanino’s opinion as unreliable,

biased, and unhelpful given the governing Arizona law. (Def.’s Mem. 23–30.) The Court

addresses each argument in turn.

A. Reliability

Defendant argues that Dr. Vanino’s opinion should be excluded as unreliable because her

“diagnosis of [Lane] fails to materially consider [Lane]’s history of physical and sexual abuse or

any related psychological and psychiatric treatment that [Lane] received prior to the alleged

incident on the Flight.” (Def.’s Mem. 23.) This “faulty methodology,” Defendant argues, is a

sufficient basis to exclude Dr. Vanino’s proffered testimony. (Id. at 23–26.) In support,

Defendant contends that in opining on the causation of Lane’s symptoms, Dr. Vanino was

required by circuit precedent to conduct a “differential diagnosis” to assess possible alternate

causes of the alleged injuries. (Id. at 24 (emphasis omitted).) Defendant argues that without

consideration of Lane’s prior trauma, Dr. Vanino’s diagnosis is insufficient to establish

causation.

Plaintiffs respond that Dr. Vanino’s expert report did “show a quite extensive

acknowledgment and consideration of Plaintiff’s history,” and that Defendant was required to

identify possible alternate causes prior to the preparation of Dr. Vanino’s report. (Pl.’s Opp’n

23–24.) Plaintiffs assert that instead of timely raising the possible alternate causes, Defendant

waited until Dr. Vanino wrote her report and then identified alternate causes based on what Dr.

Vanino discussed in her report. (Id.)

“A differential diagnosis is ‘a patient-specific process of elimination that medical

practitioners use to identify the “most likely” cause of a set of signs and symptoms from a list of

possible causes.’” Ruggiero, 424 F.3d at 254 (quoting Hall v. Baxter Healthcare Corp., 947 F.

Supp. 1387, 1413 (D. Or. 1996)). “[T]he absence of a differential diagnosis,” however, “is not

always fatal to an expert’s causation opinion.” Tardif, 344 F. Supp. 3d at 601. Such analysis

“may not be required . . . when there are other sufficient indicia of reliability, such as literature

reviews, reviewing medical records, and interviews with the plaintiff.” Id. at 602 (citation and

internal quotation marks omitted). Moreover, even when an expert bases their causation opinion

on a differential diagnosis, that opinion “normally should not be excluded because the expert has

failed to rule out every possible alternative cause of a plaintiff’s illness.” Davids v. Novartis

Pharm. Corp., 857 F. Supp. 2d 267, 278 (E.D.N.Y. 2012) (quoting Cooper v. Smith & Nephew,

Inc., 259 F.3d 194, 202 (4th Cir. 2001)). Rather, the opinion “must at least address obvious

alternative causes and provide a reasonable explanation for dismissing specific alternate factors

identified by the defendant.” Id. (quoting Israel v. Spring Indus., Inc., No. 98-CV-5106, 2006

WL 3196956, at *5 (E.D.N.Y. Nov. 3, 2006)).

Dr. Vanino’s opinion does not, as Defendant asserts, “fail[] to materially consider

Plaintiff’s history of physical and sexual abuse.” (See Def.’s Mem. 23.) Nor is her report

excludable for lacking a “differential diagnosis” that assesses possible alternate causes of her

injuries. (Id. at 24.) Contrary to Defendant’s assertions, and as described above, at each step of

her analysis Dr. Vanino explained how the assaults Lane experienced previously — from her

— contributed to each of Lane’s

mental health issues. (See Vanino Rep. 8–43.) She did not state in a conclusory fashion that the

alleged assault exacerbated all of Lane’s disorders, and all of Dr. Vanino’s analyses were

preceded by extensive literature reviews and discussions of Lane’s medical history. See Tardif,

344 F. Supp. 3d at 602. For example, when discussing Lane’s depression, Dr. Vanino relayed

Lane’s report that her depression has intensified since the alleged assault, but Dr. Vanino herself

did not draw any conclusions regarding whether that assessment is accurate. (See id. at 22–23.)

When discussing Lane’s anxiety, however, Dr. Vanino explained how the literature linking

sexual assault to anxiety manifests in the way in which Lane’s symptoms have markedly

worsened since the alleged assault. (Id. at 24–25.) Similarly, Dr. Vanino explained in detail

how Lane’s PTSD changed and worsened as a result of the alleged assault. (See id. at 26–33.)

Dr. Vanino’s opinion, therefore, did not “ignore[] the obvious possibility that Plaintiff’s current

symptoms are at all connected to her prior history of trauma and abuse,” and is not excludable on

this basis.14 (See Def.’s Mem. 26.)

B. Bias

Defendant next argues that Dr. Vanino’s opinion “presents an objective bias which

discredits her reliability.” (Id. at 27.) In support, Defendant notes that Dr. Vanino prepared her

report “over one year after her interview with [Lane],” and only after Lane received “treatment

that Dr. Vanino herself recommended to [Lane] to treat her PTSD and depression symptoms

caused by the alleged incident on the Flight.” (Id. at 27–28.)

14 Dr. Vanino submitted a declaration alongside Plaintiffs’ opposition brief, responding

to various parts of Defendant’s Daubert motion. (Vanino Decl.) The first half of the declaration

relies only on Dr. Vanino’s original expert report, (id. at 1–13), while the second half includes

her opinions on “the diagnosis the defense discussed in their reports that were submitted after

[Vanino’s] report was completed,” (id. at 14–20). These diagnoses include a variety of

personality disorders that Defendant asserts could have caused in Lane the symptoms that Dr.

Vanino attributes to the alleged sexual assault. (See supra sections II.b.i.–ii.) Defendant argues

in reply that Dr. Vanino’s declaration did not comply with the disclosure requirements of Rule

26 of the Federal Rules of Civil Procedure, and that Plaintiffs are attempting to use the Vanino

Declaration to “retroactively support the admissibility of” her testimony, and that the Declaration

constitutes impermissible “new opinions” that should be stricken. (Def.’s Reply 10–13.)

As discussed above, Dr. Vanino’s expert opinion is admissible based on her report, even

without any additional support that her supplemental declaration might provide. The Court does

not rely on the declaration in deeming Dr. Vanino’s opinion admissible, and therefore declines to

decide whether this declaration is admissible at this stage of the litigation.

Plaintiffs argue that any “bias” that Defendant perceives in Dr. Vanino’s opinion is an

issue to raise on cross-examination, as it goes to her testimony’s weight and credibility rather

than its admissibility. (Pls.’ Opp’n 24.)

Dr. Vanino’s opinion is not excludable for presenting “an objective bias which discredits

her reliability.” (Def.’s Mem. 27.) Even assuming that “Dr. Vanino herself recommended” to

Lane the treatment that Lane received to treat her PTSD and depression, Defendant cites no

authority to support its assertion that Dr. Vanino’s opinion is rendered inadmissible merely

because she bases her report in part on recommended treatment. (See id. at 27–28.) Nor has the

Court found any such authority. To the extent Defendant believes that Dr. Vanino’s preference

for a certain kind of treatment renders her opinion biased or untrustworthy, Defendant can

properly explore this challenge on cross-examination. See Amorgianos, 303 F.3d at 267

(observing that cross-examination is the proper avenue to challenge “reliable, albeit debatable,

expert testimony”).

C. Helpfulness

Finally, Defendant argues that Dr. Vanino’s testimony “should be excluded because it

would not provide any assistance to the jury’s determination of . . . what damages, if any, [Lane]

has suffered due to the alleged incident on the Flight.” (Def.’s Mem. 28–30.) As a result,

Defendant argues, Dr. Vanino’s opinion “does not assist with the factual issue of apportioning

damages.” (Id.) Defendant asserts that Arizona law governs Plaintiffs’ negligence claim, and

that under governing law, Plaintiffs are “not entitled to compensation for any physical or

emotional condition that pre-existed the fault of [Defendant].” (Id. at 29 (citation omitted).)

Defendant argues that Dr. Vanino’s report falls short because she herself admitted that she could

not separate out Lane’s prior trauma history from the trauma caused by the alleged incident on

the Flight. (Id. at 30.)

Plaintiffs challenge Defendant’s argument that Dr. Vanino’s opinion should be excluded

for failing to assist in apportioning damages, and they argue that Defendant misapprehends

Arizona law when it faults Dr. Vanino for failing to separate Lane’s prior trauma history from

that caused by the incident on the Flight.15 (Pls.’ Opp’n 24–25.)

As Defendant notes, the Court has already determined that the law of Arizona governs

Plaintiffs’ negligence claim. (Apr. 2022 Decision 9–20.) “To establish a claim of negligence

under Arizona law, a plaintiff must prove that (1) defendant owed plaintiff some duty, (2)

defendant breached that duty, (3) defendant’s breach caused plaintiff’s injuries, and (4) plaintiff

sustained actual damages.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 822

15 Plaintiffs argue in response that Defendant erroneously places on Dr. Vanino the

burden of apportioning damages. (Pls.’ Opp’n 24–25.) Plaintiffs contend that this would

“usurp[] . . . the role of the jury in applying th[e] law to the facts before it,” and that under

Arizona law, Defendant is responsible for apportioning damages where “divisibility of the injury

[is] impossible.” (Id. (first quoting Nimley, 414 F.3d at 397; and then citing Piner v. Superior

Court, 192 Ariz. 182 (1998) (en banc)).)

Defendant clarifies in reply that “Dr. Vanino is not being asked to actually apportion

damages in a manner that usurp[s] . . . the role of the jury,” but she must “provide a factual basis

upon which the jury can . . . make their damages determination.” (Def.’s Reply 14 (citation and

internal quotation marks omitted).) Defendant further states that it is not making an argument

regarding who bears the burden of apportioning damages under Arizona law; Defendant points

out that Piner, 192 Ariz. 182, relied on by Plaintiffs, “discussed the indivisible injury rule in

Arizona, which deals with apportionment of damages amongst ‘multiple, culpable actors’ or

tortfeasors,” while “[t]here is only one alleged tortfeasor in this case, but also pre-existing

injury.” (Id. at 14 n.5.)

The issue of who has the burden to apportion damages under Arizona law has not been

properly raised before the Court. Moreover, that issue need not be decided to address this

particular aspect of Defendant’s Daubert motion, which disputes only the helpfulness of Dr.

Vanino’s opinion. Regardless of who bears the burden of apportioning damages, Dr. Vanino’s

expert opinion will help the trier of fact determine the degree to which the alleged assault on the

Flight worsened Lane’s condition. Neither party disputes that such information would be helpful

to the jury. Accordingly, the Court declines to address the issue of who bears the burden of

apportioning damages.

(9th Cir. 2011). Moreover, Defendant is correct that “Arizona’s pure comparative fault scheme

protects defendants from bearing more than their fair share of liability for a plaintiff’s injuries,”

and therefore, “the liability of each defendant for damages is several only.” Cramer v. Starr, 240

Ariz. 4, 7 (2016) (first quoting Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 26 (2016); and then

quoting A.R.S. § 12-2506(A)).

The Court is not persuaded by Defendant’s contention that Dr. Vanino’s report “would

not provide any assistance to the jury’s determination of . . . what damages . . . [Lane] has

suffered due to the alleged incident on the Flight.” (Def.’s Mem. 28.) Defendant appears to

focus on Dr. Vanino’s statement that “it is impossible to separate out Ms. Lane’s prior trauma

history” when evaluating the impact of the alleged assault, and argues that this “admi[ssion]”

renders her entire report unhelpful to the factfinder. (See id. at 30 (quoting Vanino Rep. 39).)

The context of Dr. Vanino’s report makes clear, however, that this statement is meant only to

highlight that the effects of the alleged assault would not manifest in a manner completely

independent of Lane’s prior trauma. As already discussed above, (supra sections II.b.iv.1, 2.A),

Dr. Vanino describes at multiple points how “the current assault has exacerbated her prior

trauma,” contrasting preexisting symptoms with those that Lane now experiences, while also

acknowledging those that have remained the same. (See, e.g., Vanino Rep. 39–40.) Arizona law

requires that “the trier of fact assess[] percentages of fault after considering the fault of all

persons who contributed to the alleged injury, . . . ‘regardless of whether the person was, or

could have been, named as a party to the suit.’” Cramer, 240 Ariz. at 7 (quoting A.R.S. § 12-

2506(B)). The Court cannot conclude that Dr. Vanino’s extensive discussion of Lane’s lifelong

mental health struggles would be unhelpful to the factfinder in fulfilling this role, or that Dr.

Vanino “utterly fails” to provide the jury with a factual basis upon which to make a damages

determination. (See Def.’s Reply 14.)

Accordingly, the Court admits Dr. Vanino’s report.

III. Conclusion

For the reasons stated above, the Court denies Plaintiffs’ motion to exclude evidence of

Lane’s history of sexual abuse and assault, where such evidence is presented for the purposes of

identifying sources of Lane’s trauma other than the alleged sexual assault on the Flight or

apportioning Plaintiffs’ damages. The Court also (1) grants in part and denies in part Plaintiffs’

motion to exclude the expert opinions of Dr. Nina Rodd and Dr. Gregory Saathoff; (2) grants in

part and denies in part Defendant’s motion to exclude the expert opinion of Kim E. Petersen; and

(3) denies Defendant’s motion to exclude the expert opinion of Dr. Sheri Vanino.

Dated: February 27, 2024

Brooklyn, New York

SO ORDERED:

s/MKB

MARGO K. BRODIE

United States District Judge