Schoolcraft v. The City Of New York et al
Filing
543
OPINION #106002 re: 513 FIRST MOTION in Limine to preclude testimony from plaintiff's expert Dr. Roy Lubit, filed by Lillian Aldana-Bernier, 517 MOTION in Limine to preclude testimony from Dr. Roy Lubit, filed by Jamaica Hospital Medical Center. Based on the facts and conclusions of law set forth above, Defendants' motions to exclude Dr. Lubit's testimony is denied. (Signed by Judge Robert W. Sweet on 10/22/2015) (spo) Modified on 11/3/2015 (ca).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,
Plaintiff,
10 Civ. 6005 (RWS)
- against Opinion
CITY OF NEW YORK, ET AL.,
Defendants.
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USDCSDNY
DOCUMENT
ELECTRONICALLY
A P P E A R A N C E S:
DOC#·
Attorney for the Plaintiff
Attorneys for Defendant Jamaica Hospital Medical
Center
MARTIN CLEARWATER & BELL, LLP.
220 East 42nct Street
New York, NY 10017
By:
Gregory J. Radomisli; Esq.
Attorneys for Defendant Lillian Aldana-Bernier
Attorneys for Defendant Isak lsakov
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j
D~fE Fii;~~~~~~j
LAW OFFICE OF JON L. NORINSBERG
225 Broadway, Suite 2700
New York, NY 10007
By:
Jon L. Norinsberg, Esq.
CALLAN, KOSTER BRADY & BRENNAN, LLP
220 East 42nct Street
New York, NY 10017
By: Matthew Joseph Koster, Esq.
f
FILED~j!i
-
'•
IVONE, DEVINE & JENSEN, LLP
2001 Marcus Avenue, Suite NlOO
Lake Success, NY 11042
By:
Brian E. Lee, Esq.
2
Sweet, D.J.
Defendants Jamaica Hospital Medical Center ("JHMC"), Dr.
Lillian Aldana-Bernier ("Bernier"), and Dr. Isak Isakov have
made motions in limine to exclude the testimony of Dr. Roy Lubit
("Dr. Lubit" or "Lubit") from testifying as to his diagnosis of
Plaintiff's Post-Traumatic Stress Disorder ("PTSD").
For the
reasons set forth below, the motions are denied.
Prior Proceedings
A detailed recitation of the facts of the underlying case
is provided in this Court's opinion dated May 5, 2015, which
granted in part and denied in part five motions for summary
judgment. See Schoolcraft v. City of New York, No. 10 CIV. 6005
RWS, 2015 WL 2070187, at *1 (S.D.N.Y. May 5, 2015). Familiarity
with those facts is assumed. The instant motions were marked
fully submitted on October 12, 2015.
Applicable Standard
The standard for the admissibility of expert testimony at
trial is set forth in Federal Rule of Evidence 702:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
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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 case.
Fed.R.Evid. 702.
The standard was the subject of extensive analysis by the
Supreme Court in Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S.
579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999).
The Court emphasized that "[t]he inquiry envisioned by
Rule 702 is .
. a flexible one.
Its overarching subject is
the scientific validity and thus the evidentiary relevance and
reliability of the principles that underlie a proposed
submission.
The focus, of course, must be solely on principles
and methodology, not on the conclusions that they generate."
Id. at 594-95.
The Federal Rules of Evidence assign to the
district court the responsibility to act as a gatekeeper and to
ensure that "an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand."
Daubert, 509
U.S. at 597.
"[I]n analyzing the admissibility of expert evidence, the
district court has broad discretion in determining what method
is appropriate for evaluating reliability under the
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circumstances of each case."
Arnorgianos v. Nat'l R.R. Passenger
Corp., 303 F.3d 256, 265 (2d Cir. 2002).
However, "[t]he Rules'
basic standard of relevance ... is a liberal one," Daubert, 509
U.S. at 587.
"A review of the caselaw after Daubert shows that
the rejection of expert testimony is the exception rather than
the rule."
Fed.R.Evid. 702, Advisory Comm. Notes.
The Motion to Exclude is Denied
Dr. Lubit has been proffered as an expert by Plaintiff to
testify regarding his diagnosis that Plaintiff suffers from PTSD
as a result of the events at issue in this case.
have moved to bar his testimony
und~r
Defendants
Daubert on the grounds
that Lubit's opinion lacks sufficient medical basis to properly
reach a PTSD diagnosis.
Def. Jamaica Hospital Medical Center
Mem. in Supp. of Mot. in Limine to Preclude Dr. Roy Lubit,
Schoolcraft v. Jamaica Hospital Medical Center, No. 10-civ-6005
(Sept. 22, 2015)
(hereinafter "JHMC MIL") . 1
Defendants do not
: Defendant Dr. Isakov submitted a brief to the Court identical
in substance (though not format) to the JHMC brief.
See Mem. of
Law in Supp. of Mot. in Limine by Def. Isak Isakov to Preclude
Dr. Roy Lubit, No. 10-civ-6005 (Sept. 21, 2015).
Dr. AldanaBernier submitted a brief adopting the content of the JHMC and
Isakov briefs.
See Mem. of Law in Supp. of Mot. in Limine by
Def. Dr. Lilian Aldana-Bernier to Preclude Dr. Roy Lubit, No.
10-civ-6005 (Sept. 22, 2015).
Because all Defendants make the
same substantive arguments in the same words, for the purposes
of brevity and ease of reference, the Court cites only to the
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argue that Dr. Lubit is generally unqualified to make a PTSD
diagnosis, but rather that the methodology used to diagnose
Plaintiff in particular was medically insufficient to reliably
reach that conclusion.
Lubit's opinion is relevant to damages
Plaintiff sustained as a result of the events at issue in this
case.
Defendants do not argue the testimony lacks relevance.
The question is whether Lubit's examination and methodology
provided a sufficient basis for his diagnosis.
Id. at 2.
Plaintiffs point to numerous elements underlying Dr.
Lubit's diagnosis,
including but not limited to:
interview with Plaintiff;
(ii)
(i) a 90 minute
review of depositions by the
doctors that assessed Plaintiff at Jamaica Hospital; and (iii)
review of medical records including Plaintiff's Jamaica Hospital
chart, a 2002 psychological evaluation of Plaintiff, and NYPD
psychologist Dr. Lamstein's records on Plaintiff.
8-9.
Pl.'s Opp. at
This methodology amounts to more than a diagnosis based on
the patient's route recitation of symptoms, or a conclusion
based only on temporal correlation.
See JHMC MIL at 4-5.
Lubit
based his diagnosis on multiple facts and data points from a
variety of sources, applying his medical experience to those
facts.
This is a tried and true method of diagnosis consistent
JHMC brief.
6
..
with the standards set out for admissibility in Rule 702.
See
Fed.R.Evid. 702.
That Lubit's method does not conform to an alternative
method of PTSD diagnosis used by some (or even most)
psychologists does not alone show unreliability without evidence
or argument that the alternative method somehow precludes the
reliability of the method Lubit used.
See JHMC MIL at 3-5.
Indeed, even if another method was used by most doctors
diagnosing PTSD (whether psychologists or psychiatrists),
"general acceptance" of a methodology is no longer the test of
admissibility.
See Daubert, 509 U.S. at 587 (holding that
adoption Federal Rules of Evidence overruled the Frye test).
The Supreme Court has been clear that "the bright-line 'general
acceptance' test established by Frye was at odds with the
'liberal thrust' of the Federal Rules of Evidence.
Amorgianos,
303 F.3d at 265 (citing Daubert, 509 U.S. at 588).
Because Lubit spent a significant amount of time analyzing
multiple sources to assess Plaintiff and himself observed
Plaintiff for an extended period of time, the Court finds Dr.
Lubit's opinion as to Plaintiff's PTSD to be based on a reliable
methodology. Defendants' criticisms of Lubit's approach based on
comparison to other methods of PTSD diagnosis are "means of
7
..
attacking shaky but admissible evidence" more appropriate for
"[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof."
Daubert, 509 U.S. at 596; accord Amorgianos, 303 F.3d at 267.
Defendants make other arguments attacking Dr. Lubit's
conclusion that Plaintiff suffered from PTSD based on
Plaintiff's testimony about his own symptoms, and on an apparent
absence of symptoms associated with PTSD.
JHMC MIL at 6.
These
arguments go directly to Lubit's conclusion. Only the
methodology, not the district court's belief as to the
correctness of such conclusions, is the focus of a Daubert
inquiry.
Daubert,
509 U.S. at 594-95.
Amorgianos recognized
that where a great "analytical gap" existed between the method
employed and the conclusion reached, exclusion is required.
Id.
However, where the foundation and methodology are adequately
reliable to reach such a conclusion, the liberal standard of
Rule 702 must be heeded, even where arguments challenging the
conclusion can be made.
See Daubert,
509 U.S. at 594-95.
Having found Dr. Lubit's diagnosis methodology to be
sufficiently reliable to meet the admissibility standard set by
Daubert, and finding no great "analytical gap" between that
method and the conclusion drawn, the testimony is admissible.
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Conclusion
Based on the facts and conclusions of law set forth above,
Defendants' motions to exclude Dr. Lubit's testimony is denied.
It is so ordered.
New York, NY
October ~J;-2015
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