Schoolcraft v. The City Of New York et al

Filing 491

FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION in Limine MOL in Support. Document filed by Jamaica Hospital Medical Center.(Radomisli, Gregory) Modified on 9/22/2015 (db).

G.TR/DA
82-82153

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
■X

ADRIAN SCHOOLCRAFT,
Plaintiff,
-against10 CIV 6005 (RWS)
THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
MARINO, Tax Id. 873220, Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL BOROUGH
BROOKLYN NORTH GERALD NELSON, Tax Id. 912370,
Individually and in his Official Capacity, DEPUTY
INSPECTOR STEVEN MAURIELLO, Tax Id. 895117,
Individually and in his Official Capacity CAPTAIN
THEODORE LAUTERBORN, Tax Id. 897840, Individually
and in his Official Capacity, LIEUTENANT JOSEPH GOFF,
Tax Id. 894025, Individually and in his Official Capacity, SGT.
FREDERICK SAWYER, Shield No. 2576, Individually and in
his Official Capacity, SERGEANT KURT DUNCAN, Shield
No. 2483, Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax Id.
915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id. 885374,
Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004, AND P.O.’s "JOHN
DOE" #1-50, Individually and in their Official Capacity (the
name John Doe being fictitious, as the true names are presently
unlcnown) (collectively referred to as "NYPD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR. ISAK
ISAKOV, Individually and in his Official Capacity, DR.
LILIAN ALDANA-BERNIER, Individually and in her Official
Capacity and JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually and in their
Official Capacity (the name John Doe being fietitious, as the
true names are presently unloiown).
Defendants.
■X

MEMORANDUM OF LAW IN SUPPORT OF MOTION IN LIMINE
BY DEFENDANT JAMAICA HOSPITAL MEDICAL CENTER
TO PRECLUDE DR. ROY LUBIT FROM TESTIFYING THAT
PLAINTIFF SUFFERS FROM POST-TRAUMATIC STRESS DISORDER (PTSD)
Of Counsel:

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William P. Brady (WPB- 7686)
Gregory J. Radomisli (GJR- 2670)
Brian Osterman (BO- 5881)

PRELIMINARY STATEMENT
This Memorandum of Law is respectfully submitted on behalf of defendant
JAMAICA HOSPITAL MEDICAL CENTER (“JHMC” or “Jamaica Hospital”) in support
of its motions in limine to preclude plaintiffs expert Dr. Roy Lubit from testifying that the
plaintiff developed Post-Traumatic Stress Disorder as a result of his hospitalization at
Jamaica Hospital.
POINT I
PLAINTIEE’S EXPERT’S OPINION THAT THE
PLAINTIFF DEVELOPED POST-TRAUMATIC STRESS DISORDER
IS UNRELIABLE AND THEREFORE INADMISSIBLE
A.

General Principles

Federal Rule of Evidence 702 governs the admissibility of expert testimony.

It

states,
If scientific, technical, or other specialized loiowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert. . . 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.
F.R.E. 702; see Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786
(1993).
Rule 702 lays out a three-step approach to determine whether the testimony of a
party’s proffered expert should be deemed admissible:

1) the court must review the

relevance of the proposed testimony; 2) the court must ensure that the expert is qualified to
render an opinion; and 3) the court must inquire “whether a proffered expert opinion has the
required indicia of scientific reliability.” Vicusi v. Procter & Gamble, 2007 U.S.Dist.LEXIS
51307, *14-16 (E.D.N.Y. 2007), affd, 2009 U.S.App.LEXIS 20961 (2d Cir. 2009)); Berkv.

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St. Vincent's Hospital and Medical Center, 380 F.Supp.2d 334, 349-351 (S.D.N.Y. 2005).
For the purposes of this motion, defendant will assume that plaintiffs have met the first and
second prongs of Rule 702.
The third prong of Rule 702 pertains to whether the expert’s opinion is reliable and
rests upon a sufficient foundation to be admissible. See Danbert, 509 U.S. at 589, 113 S.Ct.
2786. The trial judge must “ensure that an expert’s testimony rest on a reliable foundation.
Plew V. Limited Brands, Inc., 2012 U.S.Dist.LEXIS 14966, *12 (S.D.N.Y. 2012) {citing
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167 (1999));

also

Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002); Harkabi

V.

Sandisk Corp., 2012 U.S.Dist.LEXIS 32833, *8-9 (S.D.N.Y. 2012); Smith v. Target Corp.,
2012 U.S.Dist.LEXIS 16526, *27 (N.D.N.Y. 2012). For expert testimony to be reliable, it
must be based on “sufficient facts or data.

F.R.E. 702. The party seeking to introduce

expert testimony bears the burden of establishing its reliability. Harkabi v. Sandisk Corp.,
2012 U.S.Dist.LEXIS 32833 at *9.
To ensure reliability, the Court must “undertake a rigorous examination of the facts
on which the expert relies, the method by which the expert draws an opinion from those
facts, and how the expert applies the facts and methods to the case at hand.” Amorgianos,
303 F.3d at 267; see also Lewis v. FMC Corp., 786 F.Supp.2d 690, 699 (W.D.N.Y. 2011)
(Testimony must be based upon “sufficient facts or data”). The Court must be satisfied that
the opinion is reliable enough to be presented to a jury. Smith v. Target Corp., 2012
U.S.Dist.LEXIS 16526 at *29; Emig v. Electrolux Home Prod, Inc., 2008 U.S.Dist.LEXIS
68811 (S.D.N.Y. 2008).
In contrast, expert testimony should be excluded “if it is speculative or conjectural.

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Boucher v. U.S. Suzuki Motor Corp., 73 F,3d 18, 21-22 (2d Cir. 1996); see also Harkabi,
2012 U.S.Dist.LEXIS 32833 at *10. Indeed, Rule 702 was designed to guard against “the
presentation of insufficiently reliable evidence to the finder of fact.'
Inc., 2010 U.S.Dist.LEXIS 143368,

Conte V. Newsday,

13 (E.D.N.Y. 2010); Tokio Marine and Nichido Fire

Ins. Co., Ltd. V. Russo & Apoznanski, 2011 U.S.Dist.LEXIS 135987, *35 (E.D.N.Y. 2011).
The question of whether an expert report and testimony based thereon are “sufficiently
reliable” to assist the trier of fact is an issue that the Court (not the jury) must decide. Conte
V. Newsday, Inc., 2010 U.S.Dist.LEXIS 143368 at *15.
When an expert’s opinion is based on data, a methodology or studies that are “simply
inadequate to support he conclusions reached, Dauhert and Rule 702 mandate the exclusion
of that unreliable opinion testimony.

Amorgianos, 303 F.3d at 266 (emphasis added).

Indeed, “it is critical that an expert’s analysis be reliable at every step.” Id. at 267. Dauhert
and its progeny “require the Court to reject opinion evidence bottomed upon speculation and
guesswork.” Lewis v. FMC Corp., 786 F.Supp.2d 690, 706 (W.D.N.Y. 2011). The judge
should exclude expert testimony if the opinion “lacks good grounds” for the expert’s
conclusions. In Re: Xerox Corp. Securities Litigation, 764 F.Supp.2d 402, 407 (D.Conn.
2010) {citing Amorgianos, 303 F.3d at 267). As discussed in detail below, Dr. Lubit’s
conclusion that the plaintiff developed Post-Traumatic Stress Disorder is unreliable, and is
therefore inadmissible.

B.

Dr. Lubit Should Be Precluded from Testifying
That the Plaintiff Suffers from Post-Traumatie Stress Disorder

In Discepolo v. Gorgone, 399 F.Supp.2d 123, 125 (D.Conn. 2005), the Court found
that plaintiffs expert’s opinion that the plaintiff suffered from Post-Traumatic Stress

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Disorder (“PTSD”) was reliable because the expert not only interviewed the plaintiff and
others, but also administered several tests, including the Personal Assessment Inventory, the
Trauma Symptom Inventory and the Detailed Assessment of Posttraumatic Stress. In that
case, the Court went through a painstaking analysis as to the purpose of each of those tests
and how the expert determined the reliability of those tests. The Court then held that the
expert’s opinion that the plaintiff developed PTSD as a result of the sexual assault at issue
was reliable because the expert’s “methodology for diagnosing PTSD generally and as
utilized in diagnosing plaintiff, particularly because coupled with psychological testin
record review, and other interviewing, is a generally accepted methodology in the
community of psychiatrists and psychologists for making a medical diagnosis.” Discepolo
V. Gorgone, 399 F.Supp.2d 123, 127 (D.Comi. 2005). As such, the expert in Discepolo
satisfied the Daubert criteria.

See also Shea v. Long Island Railroad Co., 2009

U.S.Dist.LEXIS 43748 (S.D.N.Y. May 21, 2009) (expert’s opinion as to whether the
plaintiff suffered from PTSD was reliable because the expert had administered the MMPI-2
test which measured components of PTSD, compared those results to model results, and
reviewed records from the plaintiffs treating mental healthcare providers, in addition to
conducting a clinical interview).
In contrast. Dr. Lubif s opinion that the plaintiff developed Post-Traumatic Stress
Disorder is clearly inadmissible.

His opinion is based solely upon the symptoms the

plaintiff reported experiencing when he interviewed him on a single occasion (Exhibit AA,
pp. 196-197, 305, 379)\ At his deposition. Dr. Lubit admitted that he had not administered
any tests to the plaintiff, such as the Life Stressor Checklist, Life Experience Survey,
* All Exhibits refer to those attached to the December 22, 2014 Declaration of Gregory J. Radomisli
in support of defendant’s motion for summary judgment.

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Critical Incident History Questionnaire, Work Environment Inventory or Impact of Event
Scale to determine the cause of his alleged PTSD symptoms (Exhibit AA, p. 199-200). He
also did not review any medical records pertaining to the care and treatment the plaintiff
reeeived before October 31, 2009 to determine if the plaintiff may have had PTSD before
the police entered his home (Exhibit AA, p. 285-286). He also did not review the records of
the only psychiatrist who saw the plaintiff shortly after he was discharged from JHMC
(Exhibit Z). Furthermore, he testified that he was not aware of any literature or case studies
in which involuntary hospitalization had caused a patient to develop PTSD (Exhibit AA, p.
209).
When asked if he considered whether the plaintiff might have been suffering from
PTSD as a result of job stress he had experienced in the past, Dr. Lubit testified that he
eonsidered it, but “Em not aware of that being a reasonable explanation given the timing'
(Exhibit AA, p. 201). However, opinion based upon “little more than temporal correlation'
between two events is inadmissible.

Washburn v. Merck & Co., 2000 U.S.App. LEXIS

8601 (2d Cir. 2000). Expert testimony based on nothing more than the logical fallacy of
post hoc ergo propter hoc generally does not pass muster under Daubert. See Discover
Financial Services v. VISA, U.S.A., Inc., 582 F.Supp.2d 501 (S.D.N.Y. 2008); see also In re
Rezulin Prods. Liab. Litig., 369 F.Supp.2d 398, 411 n.92 (S.D.N.Y. 2005); Lloyd v. United
States, 2011 U.S.Dist. LEXIS 36237 (S.D.N.Y. 2011).
Dr. Lubit’s opinion that the plaintiff developed PTSD is undermined by plaintiffs
deposition testimony.

On September 27, 2013, approximately one year before Dr. Lubit

interviewed him for the purposes of this lawsuit, the plaintiff specifically testified at his
deposition that he had never been diagnosed with Post-Traumatie Stress Disorder (Exhibit L,

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pp. 470-471). He also testified as follows (Exhibit L, pp, 411-417):
Relating to your admission at Jamaica Hospital, what injuries or damages do
Q:
you say you sustained as a result of that admission?
A:

You mean physical injuries?

Q:

Anything.

A:

Anything besides-

Q:

What damages.

A:

Loss of freedom being one of them.

Q:

OK

I was—I was - I was never attacked. . . Physically, when I got out I was sick
A:
for a while and I believe it was something— a hospital.
Q:

Bug.

A:

Yeah, I got a hospital bug. . ..
*

Are you claiming any other consequences as a result of your admission to
Q:
Jamaica Hospital?
Mr. Smith: Objection to form.
Q:

I mean impact on you.

Mr. Smith: Objection to the form.
A:
psych ward.
Q:

Okay, so—yeah, there’s a record of me being locked up for six days in a

Okay. How has that affected you?

Well, it’s affected me that I haven’t been allowed to contest it, or I believe
A:
I’m contesting it but I would like to have it expunged in some way, corrected and I don’t
believe I’ve been allowed that and I don’t know if I ever will be.
Other than it being on record and your ability or inability to contest it, has
Q:
that affected you in any other way?

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Mr. Smith: Objection to form.
A:
It’s disconcerting. You feel powerless that anybody can accuse you of
something and make false statements that, you Icnow, this record exists because of that. It
feels like there should be a—some mechanisms to, other than suing.
*

*

Since your discharge from Jamaica Hospital, have you ever consulted a
Q:
mental health professional? By that I mean psychiatrist, psychologist, social worker?
A:

Yes.

Q:

Who is that?

A:

Dr. Luell, in Forest Hills.

Q:

How many times did you see Dr. Luell?

A;

Once.

*

Other than Dr. Luell, have you seen any other mental health practitioner since
Q:
being discharged from Jamaica Hospital?
A:

No.

Thus, in response to questions asking plaintiff to specify his alleged injuries, the
plaintiff never testified about experiencing any of the “symptoms” Dr. Lubit documented in
his report. More significantly, according to the report of Dr. Steven Luell (Exhibit Y), a
treating physician who is not a party to this case, and a Diplomate of the American
Academy of Experts in Traumatic Stress (Exhibit Y), the plaintiff complained of stomach
distress, anxiety, difficulty relaxing and insomnia, and his mood was depressed. Again, he
never complained of any “symptoms” consistent with PTSD, or even mentioned the
symptoms” he had apparently conveyed to plaintiffs expert. Dr. Luell then diagnosed the
plaintiff with Adjustment Disorder with Mixed Emotional Features, Rule Out Obsessive
Compulsive Personality Disorder—not PTSD. Dr. Luell recommended that the plaintiff
undergo a comprehensive psychiatric evaluation and counseling, but it does not appear that

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the plaintiff accepted Dr. Luell’s recommendations.
Given the absence of any testimony that the plaintiff experienced symptoms
eonsistent with PTSD, the absence of any indieation that the plaintiff complained of those
symptoms to the only psychotherapist who treated him after he was discharged from JHMC,
his failure to undergo any treatment since having been discharged from the hospital, Dr.
Lubit’s failure to perform any diagnostic tests to assess the plaintiff for PTSD and Dr.
Lubit’s failure to adequately rule out other potential causes of plaintiffs alleged symptoms,
it is respectfully submitted that Dr. Lubif s opinion that the plaintiff developed PTSD as a
result of the events that are the subject of this action is unreliable and does not pass muster
under Daubert. Accordingly, Dr. Lubif s opinion that the plaintiff developed PTSD should
be excluded.
CONCLUSION
For the foregoing reasons, it is respectfully requested that this Court grant
defendant’s motion in its entirety, together with such other and further relief as this Court
deems just and proper,
Dated: New York, New York
September 21, 2015
Respectfully submitted,
Martin Clearwater & Bell LLP
'.-'1

By:
Grggdry J, Radomisli (GJR 2670)
Attorneys for Defendant
JAMAICA
HOSPITAL
MEDICAL
CENTER
220 East 42nd Street
New York, NY 10017
[phone]

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