Betts v. Sixty Lower East Side, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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MARGARET BETTS,

Plaintiff,

MEMORANDUM AND ORDER

- against –

20 Civ. 4772 (NRB)

SIXTY LOWER EAST SIDE, LLC,

SIXTY HOTELS, LLC, and SIXTY

HOTEL MANAGER, LLC,

Defendants.

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NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE

This action arises from the pled sexual assault of plaintiff

Margaret Betts (“plaintiff”) by a massage therapist during an in-

room massage appointment at Sixty LES, a hotel owned and managed

by defendants Sixty Lower East Side, LLC, Sixty Hotels, LLC, and

Sixty Hotel Manager, LLC (together, the “defendants”).1 On August

24, 2023, this Court resolved competing motions for summary

judgment on liability, finding that defendants’ conduct: (1)

violated New York Education Law § 7802, thus constituting

negligence per se; and (2) proximately caused plaintiff’s injuries

by allowing plaintiff’s massage to be conducted by an unregistered

massage therapist who was not authorized to practice massage

therapy in New York. See Betts v. Sixty Lower E. Side, LLC, No.

20 Civ. 4772 (NRB), 2923 WL 5352334, at *13 (S.D.N.Y. Aug. 21,

1 To the Court’s understanding, the defendants have not asserted that the

assault did not, in fact, occur.

2023), appeal withdrawn, No. 23-1289, 2024 WL 1152438 (2d Cir.

Jan. 22, 2024).

With respect to the trial on damages scheduled to commence on

July 15, 2025, the parties have each filed motions in limine

seeking to preclude the opposing party’s proposed expert witnesses

from testifying at trial. See ECF Nos. 158-68. For the reasons

discussed herein, both parties’ motions are denied.

BACKGROUND

Plaintiff has proffered two expert witnesses, Dr. Steven A.

Fayer and Dr. Joseph Otonichar, to testify at trial that

plaintiff’s assault resulted in lasting psychological injuries,

including symptoms of post-traumatic stress disorder (“PTSD”).

Defendants, meanwhile, have proposed to offer one expert witness,

Dr. Julie Medlin, to testify at trial that plaintiff’s assault did

not significantly impact her pre-existing psychological symptoms.

We briefly summarize each expert’s credentials and proposed

testimony below.

I. Plaintiff’s Proposed Expert Witnesses

a. Dr. Steven A. Fayer

Dr. Fayer is an Associate Professor of Psychiatry at The Icahn

School of Medicine at Mount Sinai Hospital and an Attending

Physician at The Mount Sinai Hospital. ECF No. 162-1 at 5. He

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received his M.D. from Georgetown School of Medicine in 1974 and

completed his residency in Psychiatry at Mount Sinai Medical Center

in New York City. Id. at 3. He is certified by the National Board

of Medical Examiners and the American Board of Psychiatry and

Neurology. Id.

Dr. Fayer interviewed plaintiff via Zoom on September 29,

2021 and October 20, 2021. Id. at 16. On November 9, 2021, Dr.

Fayer issued a twelve-page report of his findings. Id. at 16-28.

In this report, Dr. Fayer concluded that plaintiff had developed

“trauma-induced anxiety with features of posttraumatic stress” as

a result of her assault, with her “trauama-induced anxiety,

substance abuse, depression, ADHD, and generalized anxiety . . .

significantly exacerbated by” what occurred. Id. at 27.

b. Dr. Joseph Otonichar

Dr. Joseph Otonichar is a Clinical Assistant Professor in the

Department of Psychiatry at New York University’s Grossman School

of Medicine, the Medical Director of Mental Health at NYC-HHC

Correctional Health Services, and a Co-Partner at Gotham

Forensics. ECF No. 162-4 at 45-47. He received a Master’s Degree

in Biology from Cleveland State University in 2008, and he

subsequently received his D.O. from Midwestern University –

Arizona College of Osteopathic Medicine in 2012. Id. at 44. He

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is certified by the American Board of Psychiatry and Neurology in

Forensic Psychiatry and is a Diplomat of the American Board of

Psychiatry and Neurology in Psychiatry. Id.

Dr. Otonichar interviewed plaintiff via the Psychology Today

videoconferencing platform on January 18, 2024 and February 7,

2024. Id. at 6. On March 1, 2024, Dr. Otonichar issued a thirty-

seven-page report of his findings. Id. at 6-42. In this report,

he determined that plaintiff suffered from “significant trauma-

induced psychiatric symptoms” as a result of her assault, noting

that, although she “has a longstanding history of mental illness,

. . . she developed new and worsening symptoms” as a result of the

incident, “which have caused her severe distress and functional

impairment.” Id. at 36-37.

II. Defendants’ Proposed Expert

Dr. Julie Medlin is a licensed psychologist and the Director

of the Medlin Treatment Center in Marietta, Georgia. ECF No. 162-

6 at 44-45. She received a Master’s Degree in Science in Clinical

Psychology from the University of Florida in 1993, and she

subsequently received her Doctor of Philosophy in Clinical

Psychology from the University of Florida in August 1995. Id. at

44.

Dr. Medlin interviewed plaintiff on June 20, 2024 and November

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11, 2024. Id. at 5. The first interview was conducted virtually,

but it was halted shortly after it began. Id. at 6-8. The second

interview occurred in person in a hotel conference room in Newark,

New Jersey. Id. at 9. On January 12, 2025, Dr. Medlin issued a

thirty-eight-page report detailing her findings. Id. at 5-42. In

this report, she determined that, although plaintiff reported

experiencing “significant emotional distress” due to the assault,

including “anxiety, nightmares, depression, and insomnia,” her

records indicated that “she already had these problems before the”

alleged assault. Id. at 36 (emphasis in original). Specifically,

Dr. Medlin concluded that, although plaintiff “experienced an

increase in emotional distress and symptoms of PTSD following the

sexual assault in New York,” her symptoms “do not appear to have

ever been severe or chronic enough to meet the diagnostic criteria

for PTSD” and that other issues, including financial, familial,

and relationship problems, “clearly contributed to her emotional

distress” in the years following the assault. Id. at 41.

LEGAL STANDARD

Rule 702 of the Federal Rules of Evidence governs the

admissibility of expert testimony at trial, providing:

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If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the form

of an opinion or otherwise, if (1) the testimony is based

upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the

witness has applied the principles and methods reliably

to the facts of the case.

Fed. R. Evid. 702.

The threshold question under Rule 702 is whether the witness

is qualified to provide expert testimony on the subject matter at

hand. “To make this determination, a court must first ascertain

whether the proffered expert has the educational background or

training in a relevant field, by looking at the totality of the

witness’s background.” Tardif v. City of New York, 344 F. Supp.

3d 579, 595-96 (S.D.N.Y. 2018) (internal quotation and citations

omitted). An expert may be qualified based on his or her

knowledge, skill, experience, training, or education. Fed. R.

Evid. 702.

Once a district court has determined that an expert is

qualified, the court must also ascertain whether that expert’s

testimony is “rests on both a reliable foundation and is relevant

to the task at hand.” Daubert v. Merrell Dow Pharm. Inc., 509

U.S. 579, 597 (1993). In Daubert, the Supreme Court specified

several factors that courts may consider in making this assessment,

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including the ability to test the expert’s theory, whether it has

been subject to peer review and publication, and the degree of

acceptance within the relevant scientific community. See id. at

589-95. These factors, however, are not a “definitive checklist

or test.” Id. at 593.2 Rather, a district court’s “gatekeeping

inquiry must be tied to the facts of a particular case.” Kumho

Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999).

DISCUSSION

Having reviewed the parties’ submissions, we find that all

three proposed experts are sufficiently qualified to testify based

on their credentials and the law. Because each proposed expert

is qualified to testify, we could easily end the discussion here.

However, to ensure there is a clear record for any appellate

review, we will briefly address the parties’ remaining arguments

below.

I. Plaintiff’s Motion to Exclude the Testimony of Dr. Medlin

Plaintiff has moved to exclude Dr. Medlin’s testimony on the

grounds that she: (i) lacks qualifications to serve as an expert

in this case; (ii) is not licensed to practice psychology in New

2 Notably, courts have recognized the “certain of these Daubert factors

are less readily applied to psychological and psychiatric evidence, where

‘the research, theories and opinions cannot have the exactness of [other]

science methodologies.’” Qube Films. Ltd. v. Padell, No. 13 Civ. 8405 (AJN),

2016 WL 888791, at *2 (S.D.N.Y. Mar. 1, 2016) (quoting Jenson v. Eveleth

Taconite Co., 130 F.3d 1287, 1297 (8th Cir. 1997)).

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York; and (iii) employed tests and techniques in her examination

that were not subject to peer review and have not gained general

acceptance in the relevant scientific community. ECF No. 161

(“Plaintiff’s Motion,” or “Pl. Mot.”) at 7-19.

As an initial matter, as previously stated, it is clear based

on even a cursory review of Dr. Medlin’s curriculum vitae that she

is qualified to serve as an expert in this case. See ECF No. 162-

6 at 44-55. Dr. Medlin is a licensed psychologist and Certified

Clinical Trauma Professional. Id. at 44. Although plaintiff

contends that Dr. Medlin’s career has been focused “on child

trauma, juvenile sex offenders, and adult perpetrators, not adult

victims,” her curriculum vitae states that she founded a private,

outpatient counseling center more than twenty-five years ago to

offer “specialized evaluation and treatment for sexual and

physical trauma victims” and conduct “forensic and clinical

evaluations of alleged or confirmed sexual abuse victims and

perpetrators, including in criminal and civil cases.” Id. at 44-

45. This work experience is directly relevant to the issues in

this action. Moreover, even if it were not, “[a]n expert’s

training need not narrowly match the point of dispute in the case.”

Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 73

(S.D.N.Y. 2001). Accordingly, plaintiff’s proposed exclusion of

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Dr. Medlin’s testimony on the basis of her qualifications and

experience is denied.

Next, plaintiff contends that Dr. Medlin may not testify in

this proceeding because she is not licensed to practice in New

York. Pl. Mot. at 10-11. However, Dr. Medlin’s curriculum vitae

states that she is licensed with PSYPACT, an interstate

organization that allows licensed psychologists to practice

telepsychology and conduct temporary, in-person sessions across

state boundaries. See ECF No. 162-6 at 44; ECF No. 166

(“Defendants’ Reply,” or “Defs. Reply”) at 18. Dr. Medlin

conducted her evaluation of plaintiff in New Jersey, which is a

participant in PSYPACT. Defs. Reply at 18-19. Accordingly,

plaintiff’s motion to exclude Dr. Medlin’s testimony on this basis

is denied.

Plaintiff further asserts that Dr. Medlin’s testimony must be

excluded because the tests used by Dr. Medlin to assist in her

evaluation of plaintiff’s psychological condition are unreliable,

have not been subject to peer review, and have not gained general

acceptance in the relevant scientific community. Pl. Mot. at 12-

19. Dr. Medlin conducted the following psychological tests on

plaintiff: the Personality Assessment Inventory (PAI); Minnesota

Multiphasic Personality Inventory-3 (MMPI-3); Trauma Symptom

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Inventory, 2nd Edition (TSI-2); and Inventory of Problems (IOP-

29). ECF No. 162-6 at 35-39. Although plaintiff claims that the

validity of each test is disputed, plaintiff’s motion fails to

present sufficient evidence to support this assertion. Rather, a

brief internet search suggests that, although some instability is

inherent in any tests that involve self-reporting, the tests

employed by Dr. Medlin are widely used and generally considered to

be reliable, including in diagnosing PTSD.3 In fact, one of the

two scientific articles cited by plaintiff clearly states that the

PAI is both reliable and generally accepted in the field of

psychological assessment.4

3 See, e.g., Les C. Morey, The Personality Assessment Inventory (PAI), THE

USE OF PSYCHOLOGICAL TESTING FOR TREATMENT PLANNING AND OUTCOMES ASSESSMENT: INSTRUMENTS FOR ADULTS

509-551 (Mark E. Maruish, ed., 2004) (the PAI “has gained rapidly in popularity

as a clinical and research tool” since its introduction in 1991 and is “among

the most widely used measures relied on in legal cases involving emotional

injury”); Megan Whitman and Yossef Ben-Porath, Applying the Daubert Factors to

MMPI-3-Based Testimony, 17 Psychological Injury and Law 1 (Jan. 2024),

https://doi.org/10.1007/s12207-023-09493-1 (applying the Daubert factors to the

MMPI-3, determining that “the evidence . . . indicates that the MMPI-3 has been

subjected to extensive empirical testing” and identifying “several indicators

of general acceptance that can be cited to support use of the test in forensic

assessments”); Natacha Godbout, Monica Hodges, John Briere, and Marsha Runtz,

Structural Analysis of the Trauma Symptom Inventory-2, 25 J. of Aggression,

Maltreatment & Trauma 333, http://dx.doi.org/10.1080/10926771.2015.1079285

(determining that the TSI-2 factors are “significant predictors of exposure to

trauma or some other very upsetting event, especially Posttraumatic Stress”);

Esteban Puente-López, David Pina, Rubén López-Nicolás, Isabel Iguacel, and Ramón

Arce, The Inventory of Problems-29 (IOP-29): A systematic review and bivariate

diagnostic test accuracy meta-analysis, Psychological Assessment, 35(4), 339-

352, https://doi.org/10.1037/pas0001209 (determining that, although further

research was recommended, the results of an analysis of the accuracy of IOP-29

were “highly promising” and that the IOP-29 was “able to discriminate adequately

between instructed simulators and healthy controls”).

4 Specifically, plaintiff cites a 2024 article in the Journal of Forensic

and Legal Medicine, which states that the PAI is “popular[] in forensic

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In sum, there can be no doubt that Dr. Medlin is amply

qualified to testify for defendants at trial. Plaintiff’s motion

to preclude Dr. Medlin from offering her written report or

testifying at trial is denied.

Finally, plaintiff requests that Dr. Medlin be precluded from

testifying about certain commentary concerning plaintiff’s counsel

that is contained in her report. Pl. Mot. at 2-3. Plaintiff’s

counsel contends that this commentary should be precluded under

Fed. R. Evid. 403 and 702 as irrelevant, unfairly prejudicial, and

likely to confuse the issues. Id. While Dr. Medlin’s report

certainly suggests that plaintiff’s counsel exhibited

unprofessional behavior during both of Dr. Medlin’s examinations

settings[,]” and notes that it “continues to gather international

recognition” and “its relevance and usefulness in forensic settings is

generally accepted and acknowledged.” Mauro Paulino, John F. Edens, Mariana

Moniz, Octavio Moura, Daniel Rijo, Mario R. Simeos, Personality assessment

inventory (PAI) in forensic and correctional settings: A comprehensive

review, 103 J. of Forensic and Legal Medicine (2024),

https://www.sciencedirect.com/science/article/pii/S1752928X24000234.

The only other article cited by plaintiff does not appear to be

publicly available. See Megan Whitman, Kaci Holmes, Laura Elias, Bruce

Cappo, and Yossef Ben-Porath, Incremental Validity of MMPI-3 and NEO PI-3

Scores in Public Safety Candidate Pre-employment Psychological Evaluations,

51 Criminal Justice and Behavior (2023),

https://doi.org/10.1177/00938548231219809. However, the Abstract states that

the study “evaluated the incremental validity of the [MMPI-3] and the [NEO

PI-3] scores in predicting California Commission on Peace Officer Standards

and Training dimension . . . ratings in public safety . . . pre-employment

psychological evaluations[.]” Id. This summary suggests that this article

is not relevant to this litigation, as plaintiff is neither a public safety

officer nor being evaluated in the context of a pre-employment psychological

evaluation.

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of plaintiff, at this stage we agree that the admission of such

information is not directly relevant to the issues to be presented

at trial.5 Accordingly, we grant plaintiff’s request to exclude

any reference to plaintiff’s counsel’s behavior in Dr. Medlin’s

testimony.6

II. Defendants’ Motion to Exclude the Testimony of Dr. Fayer and

Dr. Otonichar

Defendants move to bar the admission of expert reports and

testimony by Dr. Fayer and Dr. Otonichar under Daubert or,

alternatively, request that the Court order a Daubert hearing to

5 It should be noted that the Court previously issued two letters setting

forth criteria for Dr. Medlin’s evaluation of plaintiff due to plaintiff’s

counsel’s interruption of her initial examination. See ECF Nos. 109, 112.

On the day that plaintiff’s counsel interrupted the first examination

conducted by Dr. Medlin, the Court held a telephone conference at which it

supported the termination and stated that the examination could not proceed

without a stipulation entered into by both parties and signed by the Court.

See ECF No. 109. After the parties failed to reach an agreement on the terms

of this stipulation, see ECF Nos. 106-08, the Court provided specific

criteria for the conditions pursuant to which Dr. Medlin’s next examination

of plaintiff should occur, see ECF Nos. 109, 112.

6 We need not address plaintiff’s argument that defendants violated Rule

26(a)(2)(B) by allegedly failing to provide two pages of Dr. Medlin’s expert

disclosure, as defendants have provided more than sufficient evidence to show

that they provided plaintiff’s counsel with the full expert disclosure,

including the two purportedly missing pages, on January 14, 2025 and February

14, 2025. See Defs. Reply at 6. Accordingly, plaintiff’s argument is moot.

In their reply, defendants requested that the Court sanction

plaintiff’s counsel for representing to the Court that certain pages were

missing from defendants’ expert disclosure when they were, in fact, provided

to plaintiff’s counsel on two separate occasions. Id. at 6-7. While we

decline to proceed with sanctions against plaintiff’s counsel at this time,

we note for the record that this is only the latest in a series of

professionally questionable actions taken by plaintiff’s counsel in the

course of this litigation.

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determine the reliability of their testimony. See ECF No. 159

(“Defendants’ Motion,” or “Defs. Mot.”) We address each of

defendants’ arguments in turn.7

a. Dr. Otonichar

First, defendants contend that Dr. Otonichar’s credentials

“simply do not meet the standard” set forth in Fed. R. Evid.

702(a). We disagree. Dr. Otonichar’s advanced education in

psychiatry and his work experience, including as Medical

Director of Mental Health at NYC-HHC Correctional Health

Services and Clinical Assistant Professor in the Department of

Psychiatry at New York University School of Medicine,

undoubtedly qualify as “specialized knowledge” gained through

“experience, training, or education” within the meaning of Rule

702. ECF No. 162-4 at 45. Accordingly, defendants’ motion to

preclude Dr. Otonichar’s testimony on this basis is denied.8

7 Defendants also contend that plaintiff’s expert disclosures violated

Fed. R. Civ. P. 26(a)(2)(B) because they did not include a list of all cases

in which Dr. Otonichar and Dr. Fayer testified in the previous four years,

including testimony before administrative agencies, and because plaintiff’s

counsel failed to disclose the existence of either expert’s handwritten notes

prior to their depositions. Defs. Mot. at 1-7. While the Court finds it

difficult to understand why these purported omissions are the subject of a

motion in limine rather than having been raised during discovery, plaintiff’s

counsel is directed to provide defendants’ counsel with any documentation or

information subject to disclosure under Rule 26(a)(2)(B) that has not yet

been provided for their review.

8 Defendants contend that Dr. Otonichar’s credentials are inadequate

because he has not previously testified in a civil or criminal proceeding.

Defs. Mot. at 9. Neither Fed. R. Evid. 702 nor Daubert requires an expert to

have previously testified in a court proceeding. This argument is

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Defendants further assert that Dr. Otonichar’s methodology

is unsupportable, claiming that he conducted two Zoom interviews

of the plaintiff in January and February 2024 lasting a combined

total of four hours and “has not spoken to or engaged in any

conversation” with the plaintiff since that time. Defs. Mot. at

8. However, in preparing his written report, Dr. Otonichar

reviewed: (i) psychiatric treatment records of Dr. Robert A.

Reff, M.D. between July 2016 and January 2024; (ii) psychiatric

treatment records of Dr. Wilson between August 2016 and January

2024; (iii) the psychiatric examination report of Dr. Fayer

dated November 9, 2021; (iv) testimony and exhibits from the

nonsensical. Why would an expert who had not testified before be precluded,

as opposed to a “professional witness” who has testified dozens of times,

always for one side?

Similarly, to the extent defendants contend that Dr. Otonichar is not

qualified to opine on plaintiff’s symptoms of PTSD because he has not

previously been called to testify regarding PTSD, Dr. Otonichar’s curriculum

vitae demonstrates that he has extensive experience in treating and

evaluating patients suffering from various psychological and psychiatric

conditions. See ECF No. 162-4 at 44-50. Further, he testified that he has

treated patients who have been diagnosed with PTSD and previously evaluated

an individual who experienced symptoms of PTSD when he retained in connection

with another lawsuit. ECF No. 162-5 at 22, 32-33. This work experience,

when considered in connection with Dr. Otonichar’s credentials, is more than

sufficient to establish that he is qualified to serve as an expert in this

proceeding. See Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53,

73 (“An expert’s training need not narrowly match the point of dispute in the

case.”) (internal quotation and citation omitted); Tardif v. City of New

York, 344 F. Supp. 3d 579, 598 (S.D.N.Y. 2018) (“If an 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.”)

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deposition of plaintiff on January 8, 2021; and (v) the

pleadings and procedural filings in this action. ECF No. 167

(“Plaintiff’s Reply,” or “Pl. Reply”) at 15-16. Dr. Otonichar’s

review of plaintiff’s medical records spanning approximately

eight years, in conjunction with his own evaluation, is

sufficient to meet the requirements of Rule 702(a).9 See

Daubert, 509 U.S. at 588-89 (the Federal Rules of Evidence take

a ”general approach of relaxing the traditional barriers to

opinion testimony [that] counsels in favor of admissibility”)

(quotations and citations omitted).

Finally, defendants assert that Dr. Otonichar’s report

contains “no opinion on the issues of causation or permanency,”

and that he must be precluded from offering opinions to the jury

on those issues. Id. We disagree. Dr. Otonichar clearly

addresses both causation and permanency in his report.

Specifically, he states that plaintiff experienced a “new type

of anxiety” as a result of the assault, which took the form of a

9 Defendants cite Morritt v. Stryker Corporation, 973 F. Supp. 2d 177

(E.D.N.Y. 2013) to support their assertion that Dr. Otonichar has not

sufficiently set forth an established methodology used to reach his opinion.

However, the Court in that case, which involved a medical device alleged to

be defective, determined that the expert at issue had not “establish[ed] a

threshold level of competency” in forming his opinion that a defect had

caused the medical device to fail, noting that he did not analyze or test the

device or observe it under a microscope. Id. at 189. Given the widely

differing facts at issue in this litigation, which focuses on plaintiff’s

psychiatric condition, this case is inapposite.

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“fear of intimacy and romantic relationships.” ECF No. 162-4 at

39. He also writes that she experienced “anxiety and trauma

symptoms that are often seen with [PTSD],” including flashbacks

to the incident, isolation, mistrust, fear, anger, and

irritability. Id. at 39-40. Dr. Otonichar describes each of

these symptoms as arising after the assault and rules out other

causes that may have contributed to increased anxiety and

depression following the incident, writing that, although

plaintiff “experienced numerous other stressors around the time

of the referenced incident . . . those experiences could not

have caused the specific symptoms of sexual trauma that she

suffered.” Id. at 40-41. He further states that, while these

symptoms have “more recently improved over time[,]” “she

continues to have residual symptoms related to the trauma from

the referenced incident.” Id. Accordingly, defendants’ request

to preclude Dr. Otonichar from testifying on issues of causation

and permanency is denied.10 Any concerns regarding the depth or

form of his evaluation goes to the weight of his testimony,

10 Defendants also claim that Dr. Otonichar failed to perform a

“differential diagnosis” of plaintiff despite her psychiatric history. Defs.

Mot. at 13-14. However, as stated above, Dr. Otonichar’s report extensively

summarizes her extensive psychiatric history and the symptoms associated with

her pre-existing psychiatric conditions. He also identifies “new” symptoms

that arose after her assault, including flashbacks, isolation, mistrust,

fear, anger and irritability. ECF No. 162-4 at 39-40. Accordingly,

defendants’ assertion that this history was “ignored” by Dr. Otonichar in

reaching his medical conclusions is unpersuasive. Defs’ Mot. at 14.

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rather than its admissibility, and may be addressed on cross-

examination.

b. Dr. Fayer

Next, defendants contend that Dr. Fayer must also be

precluded from testifying at trial, asserting that his proposed

testimony does not meet the requirements of Rule 702(b-d).

Defs. Mot. at 16-20.

First, defendants assert that Dr. Fayer’s methodology was

insufficient, contending that he: (i) interviewed plaintiff for

a total of four hours via Zoom on September 29, 2021 and October

20, 2021, and has had no further contact with plaintiff or

reviewed any additional medical records since that call; (ii)

did not review medical records from plaintiff’s primary treating

psychologist after December 15, 2020 or records from plaintiff’s

primary treating psychiatrist covering the four treatment

sessions immediately preceding the assault, and did not review

the records of plaintiff’s second treating psychiatrist, Dr.

Wilson, or her other medical providers; and (iii) did not

administer any tests in evaluating plaintiff’s psychological

condition. Defs. Mot. at 17-18. However, a review of Dr.

Fayer’s report indicates that he based his diagnosis of

plaintiff’s mental health conditions on his own examinations of

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plaintiff and a review of her psychiatric treatment records with

Dr. Robert A. Reff. ECF No. 162-1 at 16-28. As stated above, a

review of such records, in combination with a personal

evaluation of plaintiff’s condition, is consistent with the

standards for evaluation within the psychiatric community and

adequate to meet the requirements of Fed. R. Evid. 702(a). See,

e.g., O’Loughlin v. USTA Player Dev. Inc., No. 14 Civ. 2194

(VB), 2016 WL 5416513, at *5 (S.D.N.Y. Sept. 28, 2016)

(admitting psychiatrist’s expert testimony, which was based on

his review of the plaintiff’s medical records, deposition

testimony, and a 75-minute interview of plaintiff and her

mother). Accordingly, defendants’ motion to preclude Dr.

Fayer’s testimony on this basis is denied.

Defendants further argue that Dr. Fayer’s expert report

contains “no opinion on the issues of causation or permanency,”

and that he must be precluded from offering opinions to the jury

on those issues. Defs. Mot. at 18. However, there is no need

to limit Dr. Fayer’s testimony on this basis, as his report

addresses both causation and permanency. He states that, as a

result of the assault, plaintiff developed “trauma-induced

anxiety with features of posttraumatic stress[,]” including

“flashbacks, dreams . . ., negative thoughts, avoidance, and

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isolation[.]” ECF No. 162-1 at 27. Dr. Fayer further

determined that plaintiff would require “ongoing psychiatric

treatment . . . as a result of the incident that occurred.” Id.

Accordingly, Dr. Fayer’s expert report adequately addresses both

causation and permanency, and defendants’ motion to limit Dr.

Fayer’s testimony with respect to these topics is denied.

In sum, Dr. Fayer’s opinion is grounded in a reliable

methodology commonly accepted in the psychiatric community, and

defendants’ motion to preclude Dr. Fayer’s testimony is denied.

Any concerns regarding the depth or form of his evaluation goes

to the weight of his testimony, rather than its admissibility,

and may be addressed on cross-examination.

c. FRCP Rule 403

Finally, defendants contend that the testimony of Dr. Fayer

and Dr. Otonichar should be precluded or limited as duplicative

under Fed. R. Evid. 403, asserting that both witnesses “will

present predominantly duplicative testimony.”11 Defs. Mot. at

19. Specifically, defendants claim that the two expert

disclosures are based upon a review of substantially the same

11 Fed. R. Evidence 403 provides that “[t]he court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”

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medical and legal records, similar examinations of the

plaintiff, and reach similar conclusions, asserting that “to

permit two experts to testify upon the same ground, using the

same bases for their testimony, a jury could simply engage in

the improper head counting of experts and decide against the

Defendants’ expert simply on the basis of her being one

testifying expert as opposed to two.” Id.

Plaintiff, however, asserts that testimony from the two

experts is not needlessly cumulative because the two experts

examined plaintiff at different times. Pl. Reply at 21-22. Dr.

Fayer examined plaintiff approximately three years after the

assault, on September 29, 2021 and October 20, 2021. ECF No.

162-1 at 16. Dr. Otonichar, meanwhile, conducted his

examination of plaintiff more than five years after the assault,

on January 18, 2024 and February 7, 2024. ECF No. 162-4 at 6.

Plaintiff contends that Dr. Fayer’s testimony will address the

“acute impact” of the assault, while Dr. Otonichar’s testimony

will focus its “the chronic and enduring impact” and plaintiff’s

“sustained psychiatric impairment and deterioration in

functioning[.]” Pl. Reply at 21-22. Because the two experts

examined plaintiff three years and five years after the assault,

respectively, and are expected to testify regarding their

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separate conclusions with respect to plaintiff’s psychological

condition at each point in time, we agree that the proposed

testimony is neither cumulative nor duplicative.!

CONCLUSION

For the foregoing reasons, the parties’ motions are denied.

The Clerk of Court is respectfully directed to close the motions

currently pending at ECF Nos. 158-59, 162-65.

Dated: June 30, 2025

New York, New York YO a /)

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_ whl □□□ Ne ed Nucherhch

NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE

12 Defendants cite two cases in support of their request to preclude

plaintiff’s proposed expert testimony as needlessly cumulative. In Country

Mutual v. Broan Nutone LLC, No. 20 Civ. 1356 (DNH), 2024 WL 7324516 (N.D.N.Y.

Nov. 7, 2023), the court precluded two experts who collaborated on a joint

report from offering cumulative testimony regarding the same report at trial.

Where, as here, the two experts at issue prepared different reports based on

separate examinations, this case is inapposite. In US Airways, Inc. v. Sabre

Holdings Corp., No. 11 Civ. 2725 (LGS), 2022 WL 986232 (S.D.N.Y. Apr. 1,

2022), the district court granted plaintiff’s motion to bar duplicative

opinions from two experts on four subjects pertaining to airline incentive

payments and commissions to travel agents. Here, the testimony proffered by

Dr. Otonichar and Dr. Fayer concerns their independent evaluations of

plaintiff’s psychological condition, performed in 2021 and 2024,

respectively. Given the timing of the experts’ examinations, their differing

focuses, and the subjective nature of a psychological evaluation, we decline

to preclude the proposed testimony from either expert as cumulative or

duplicative.

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