Rosario v. City of New York et al

Filing 229

OPINION AND ORDER re: 209 MOTION to Preclude pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the Expert Testimonies and Reports of Jennifer Dysart Ph.D. and Bhushan Aghar kar M.D.. filed by City Of New York, Irwin Silverman, Gary Whitaker, Richard Martinez, Charles Cruger, 206 MOTION to Preclude Portions of the Opinions and Testimony of Defendants Experts Steven A. Fayer, M.D. and DeAnsin G. Parker , Ph.D. filed by Richard Rosario. For the reasons set forth above, Plaintiff's motion to exclude the testimony of Steven A. Fayer is GRANTED IN PART -- his opinion and testimony on ASPD are excluded as unreliable; Plaintiff's motio n to exclude the testimony of DeAnsin G. Parker is DENIED; Defendants' motion to exclude the testimony of Jennifer Dysart is DENIED; and Defendants motion to exclude the testimony of Bhushan Agharkar is DENIED. The Clerk of Court is respectfully directed to close the motions at Docket Nos. 206 and 209. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 5/13/202) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
:
RICHARD ROSARIO,
:
:
Plaintiff,
:
:
-against:
:
:
CITY OF NEW YORK, et al.,
:
Defendants. :
-------------------------------------------------------------X

18 Civ. 4023 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Plaintiff Richard Rosario seeks damages under 42 U.S.C. § 1983 from the City of New
York (the “City”) and certain New York City Police Department (“NYPD”) detectives for his
alleged wrongful conviction and imprisonment. Plaintiff moves to exclude portions of the
opinions and testimony of Defendants’ experts Steven A. Fayer, M.D., and DeAnsin G. Parker,
Ph.D., pursuant to Federal Rules of Evidence 402, 403 and 702. Defendants move to preclude
the opinions and testimony of Plaintiff’s experts Jennifer Dysart, Ph.D., and Bhushan Agharkar,
M.D., pursuant to Federal Rule of Evidence 702. For the following reasons, Plaintiff’s motion is
granted in part and Defendants’ motion is denied.
I.

BACKGROUND
Familiarity with the underlying allegations and procedural history is assumed. See

Rosario v. City of N.Y., No. 18 Civ. 4023, 2019 WL 4450685, at *1-3 (S.D.N.Y. Sept. 16, 2019);
Rosario v. City of N.Y., No. 18 Civ. 4023, 2021 WL 199342, at *1-3 (S.D.N.Y. Jan. 20, 2021).
Following the partial grant of Defendants’ motion for summary judgment, Plaintiff’s remaining
claims are for (1) denial of a right to a fair trial, (2) failure to intervene and (3) malicious

prosecution against certain NYPD detectives and (4) respondeat superior liability for malicious
prosecution against the City. Rosario, 2021 WL 199342, at *14.
Plaintiff challenges portions of the opinions and testimony of Defendants’ damages
experts, psychiatrist Steven A. Fayer, M.D., and neuropsychologist DeAnsin G. Parker, Ph.D.,
that relate to Antisocial Personality Disorder (“ASPD”). Both Fayer and Parker opine that
Plaintiff has several psychological conditions, including ASPD, that are not connected to
Plaintiff’s lengthy imprisonment.
Defendants challenge the qualifications, opinion and testimony of Plaintiff’s liability
expert, Jennifer Dysart, Ph.D. Dysart is a tenured professor of psychology, holds a Ph.D. in
social psychology and has co-authored numerous peer-reviewed articles, book chapters and a
treatise on eyewitness identification. Dysart opines that three independent witnesses were
unlikely to have selected Plaintiff from hundreds of photographs without outside influence
during the NYPD’s investigation of the crime underlying Plaintiff’s alleged wrongful conviction.
Defendants also challenge the opinion and testimony of Plaintiff’s damages expert,
neurologist and psychiatrist, Bhushan Agharkar, M.D. Agharkar opines that Plaintiff suffers
from post-traumatic stress disorder (“PTSD”) and an acquired brain injury as a result of his
imprisonment.
II.

STANDARD
Federal Rule of Evidence 702 governs the admissibility of expert testimony. The rule

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 [] (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

2

and methods; and (d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702. District courts play a “‘gatekeeping’ function” under Rule 702 and are
“charged with ‘the task of ensuring that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.’” In re Mirena IUS Levonorgestrel-Related Prods. Liab.
Litig. (No. II), 982 F.3d 113, 122-23 (2d Cir. 2020) (quoting Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 597 (1993)). A Rule 702 inquiry focuses on three issues: (1) whether a
witness is qualified as an expert, (2) whether the witness’s “opinion is based upon reliable data
and methodology” and (3) whether “the expert’s testimony (as to a particular matter) will assist
the trier of fact.” Nimely v. City of N.Y., 414 F.3d 381, 397 (2d Cir. 2005) (internal quotation
marks and citations omitted); accord In re Namenda Indirect Purchaser Antitrust Litig., No. 15
Civ. 6549, 2021 WL 509988, at *6 (S.D.N.Y. Feb. 11, 2021). “[A] slight modification of an
otherwise reliable method will not render an expert’s opinion per se inadmissible.” United
States v. Jones, 965 F.3d 149, 160 (2d Cir. 2020). The party proffering the expert bears the
burden of establishing Rule 702’s admissibility requirements by a preponderance of the
evidence. Jones, 965 F.3d at 161.
III.

DISCUSSION
A.

Opinion and Testimony of Steven A. Fayer, M.D.

Defendants retained Fayer as a damages expert to conduct a comprehensive psychiatric
evaluation and detailed mental status examination of Plaintiff. Fayer opines that Plaintiff
“presents with an [ASPD] (F60.2),” “manifests traits and features of Cluster B Personality
Disorder,” “manifests bipolar spectrum disorder” and “does not manifest posttraumatic stress
disorder.” Fayer also opines that he is “dubious of a diagnosis of traumatic brain injury as a
result of fights that [Plaintiff] had when he was in prison.” Plaintiff moves to exclude the
3

portions of Fayer’s opinion and testimony related to ASPD, arguing that (1) Fayer’s opinion and
testimony are unreliable, (2) they are irrelevant and (3) their prejudicial effect substantially
outweighs their probative value. The motion is granted.
1. Reliability of Fayer’s Opinion
Fayer’s opinion and testimony as to ASPD are unreliable. “[A]n expert’s methodology
must be reliable at every step of the way.” In re Mirena, 982 F.3d at 123. Fayer bases his
diagnoses of mental disorders on the diagnostic criteria set out in the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders -- Fifth Edition (“DSM-5”).
Fayer considers the DSM-5 the gold standard reference for psychiatrists and believes it must be
followed to diagnose mental health disorders accurately or reliably. The DSM-5 requires four
criteria to diagnose ASPD. The third criterion states, “the individual . . . must have had a history
of some symptoms of conduct disorder before age 15 years.” In diagnosing Plaintiff with ASPD,
Fayer’s report makes no mention of this criterion. Nor does Fayer address any conduct by
Plaintiff prior to age fifteen. When asked about this omission in his deposition, Fayer testified
that he “disagree[d] with” the DSM-5’s third criterion for diagnosing ASPD and stated, “if you
are having several of these other criteria and if it manifested at 14 or 16, I would still think in my
opinion it is [ASPD].” Fayer further testified that the DSM-5 “makes a little mistake” with the
third criterion for ASPD. Fayer’s report is silent on his disagreement with the third criterion for
diagnosing ASPD and fails to justify deviating from the DSM-5. Defendants’ argument that
Fayer “reliably followed the diagnostic criteria delineated in the DSM-[5]” is unsubstantiated.
Due to the large analytical gap between the DSM-5 criteria and Fayer’s diagnosis, Fayer’s
opinion and testimony as to ASPD are unreliable. See El Ansari v. Graham, No. 17 Civ. 3963,
2019 WL 3526714, at *4 (S.D.N.Y. Aug. 2, 2019) (finding diagnosis of a psychological disorder

4

“unreliable because of the analytical gaps between the D[SM]-[5] guidelines that [the expert]
purported to follow and [the expert’s] diagnosis”). To be clear, Fayer’s opinion and testimony
are not unreliable because he deviated from the DSM-5’s diagnostic criteria, but because he
failed to provide a cogent explanation or justification for doing so.
Defendants argue that because the DSM-5’s first criterion for diagnosing ASPD
encompasses conduct “occurring since age 15,” there is no age cutoff. Defendants’ focus on the
first diagnostic criterion for ASPD is misplaced. The first criterion provides there must be “[a]
pervasive pattern of disregard for and violation of the rights of others, occurring since age 15
years[.]” But consideration of this criterion, related to conduct since age fifteen, does not mean
Fayer applied the third criterion, which relates to conduct before age fifteen.
Although Plaintiff in his reply memorandum seeks to exclude Fayer’s opinions as to “any
personality disorder,” Plaintiff’s specific arguments are directed only at the ASPD opinion.
Because Fayer’s ASPD opinion is excluded as unreliable, Plaintiff’s remaining arguments
challenging Fayer’s ASPD opinion are not addressed. For clarity, Fayer’s opinion that Plaintiff
suffers from ASPD is excluded, but any other of his opinions that Defendant chooses to offer are
not.
B.

Opinion and Testimony of DeAnsin G. Parker, Ph.D.

Defendants retained Parker as a damages expert to “assess the possibility that [Plaintiff]
suffered a Traumatic Brain Injury (TBI) and suffers with Post Traumatic Stress Syndrome
(PTSD) due to incarceration during his 20 year prison tenure.” Parker declined to endorse
Plaintiff’s claims that he has a traumatic brain injury and PTSD. Parker opined that Plaintiff has
“Attention-Deficit/Hyperactive Disorder, Combined Presentation,” “currently presents with
[ASPD],” “also presents with a Paranoid Personality Disorder,” “evidences a Somatic Symptom

5

Disorder,” “evidences a serious Mood Disorder which seems to be Bipolar in nature,” “manifests
traits and features of Cluster B Personality Disorder” and “manifests bipolar spectrum disorder.”
Plaintiff moves to exclude portions of Parker’s opinion and testimony related to ASPD, arguing
that Parker’s opinion and testimony are (1) unreliable, (2) irrelevant and (3) that their prejudicial
effect substantially outweighs their probative value. The motion is denied.
1. Reliability of Parker’s Opinion
Parker’s opinion and testimony as to ASPD are reliable. Parker adopted and addressed
the DSM-5’s four diagnostic criteria for this condition, concluding that Plaintiff’s conduct “since
before age 15” supports a diagnosis of ASPD.
Plaintiff takes issue with Parker’s analysis of the third criterion -- conduct before age
fifteen. Parker’s report states that Plaintiff “has a pervasive pattern of disregard for and violation
of the rights others since before age 15.” Plaintiff argues that this finding is unreliable because
Parker did not have any specific evidence that Plaintiff had engaged in any relevant conduct
before age fifteen. But Parker testified in her deposition that she had an adequate basis for her
conclusion, including that Plaintiff had dropped out of school around the age of fourteen or
fifteen because, up to then, he had been getting into fights and trouble all the time.
The conflicting opinion of Plaintiff’s damages expert, Agharkar, does not undercut the
reliability of Parker’s opinion. Plaintiff’s dispute with the reliability of Parker’s opinion
ultimately rests on the sufficiency of the underlying facts and evidence. Such disputes are
appropriate for resolution through “[v]igorous cross-examination [and] presentation of contrary
evidence” before the jury. Daubert, 509 U.S. at 596.

6

2. Relevance and Probative Value Versus Prejudice and Parker’s Opinion
Plaintiff contends that Parker’s personality disorder diagnoses are irrelevant and thus
barred by Rule 402 because they would not preclude or be relevant to a diagnosis of PTSD. This
argument is incorrect. “Evidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401. Defendants present the personality disorder
diagnoses to provide “the jury with another explanation for plaintiff’s” conduct -- i.e., to show
that conditions other than PTSD caused his conduct while incarcerated. Parker’s diagnoses are
relevant to the issues of causation and damages.
Plaintiff argues that the ASPD diagnosis should be precluded under Rule 403 because the
prejudicial effect of the diagnosis outweighs its probative value. Plaintiff asserts prejudice
because (1) there is no indication how the diagnosis related to damages, (2) ASPD is commonly
associated with lying, disregarding the rights of others and failing to conform to social norms and
(3) Parker did not appropriately consider Plaintiff’s circumstances. Only the second of these
arguments relates to prejudice, and it is unavailing. Plaintiff has put his mental health at issue by
seeking damages for injury to his mental health. As a result, the opinions and testimony of
qualified mental health experts are highly probative. Parker’s opinion offers an alternative
theory for the cause of Plaintiff’s alleged damages. In this context, any unfair prejudice from
unflattering descriptions of Plaintiff is outweighed by the jury’s need to determine the cause and
extent of his injury. Even Plaintiff’s own mental health expert, Agharkar, writes unflattering
descriptions of Plaintiff’s symptoms. The first and third arguments relate to relevance and
reliability respectively, and they are rejected for the reasons discussed above.

7

The cases Plaintiff cites to support excluding Parker’s ASPD opinion are inapt; none of
them arise in the context of dueling expert opinions about a plaintiff’s mental health where the
plaintiff seeks damages based on his mental health condition. See, e.g., Tchatat v. City of N.Y.,
315 F.R.D. 441, 445-47 (S.D.N.Y. 2016) (excluding expert’s mental health report where expert
offered only “tentative conclusions” and purpose of report was to undermine plaintiff’s
credibility); Jackson v. City of White Plains, No. 05 Civ. 0491, 2016 WL 234855, at *2-3
(S.D.N.Y. Jan. 19, 2016) (excluding expert’s mental health report where it was offered as
evidence of plaintiff’s likelihood to use violence).
Plaintiff also attacks the sufficiency of Parker’s report, arguing that because it is based on
incorrect and incomplete information, it is prejudicial. But, as noted above, because the report is
reliable, arguments as to the sufficiency of the analysis are best suited for resolution by the jury.
Parker’s ASPD opinion is admissible under Rule 403.
C.

Opinion and Testimony of Jennifer Dysart, Ph.D.

Plaintiff retained Dysart as a liability expert to provide an opinion “regarding the
eyewitness identification evidence relating to” Plaintiff’s conviction. Dysart opines that “the
likelihood of the three purported eyewitnesses separately and independently identifying Mr.
Rosario from among hundreds of photographs in mugshot books is extraordinarily low, whether
he is innocent or guilty.” Dysart also opines that if the police used “improperly suggestive
techniques,” then “the initial, tainted identification process [is] the most likely source of the
witnesses’ subsequent identifications” of Plaintiff. Defendants move to exclude Dysart’s opinion
and testimony, arguing that (1) she is not qualified to testify about police practices, (2) her
opinion is unreliable and (3) her opinion will not assist the jury. The motion is denied.

8

1. Dysart’s Qualifications
Dysart is qualified to testify on police practices related to eyewitness identification.
Dysart holds a Ph.D. in Social Psychology, and she is a tenured professor of psychology at John
Jay College of Criminal Justice. She is the co-author of a treatise titled Eyewitness Testimony:
Civil and Criminal and a litany of publications on eyewitness testimony, including an article on
eyewitness accuracy rates in police show-up and lineup presentations. She has presented to
police officers on eyewitness identification throughout the United States and in other countries.
Dysart also writes that her opinion is based on her “study of police identification procedures
across the country.” Dysart is well qualified to testify about police practices relating to
eyewitness identification.
Defendants argue that Dysart can testify about eyewitness identification but not police
practices. Defendants’ argument is based on the faulty premise that police practices have
nothing to do with eyewitness identification. Dysart’s report and experience make clear that a
critical focus of her field is the “study of police identification procedures.” Her expertise directly
informs police practices when she presents to police departments and at police conferences.
Defendants also argue that Dysart is not qualified because she is not an expert on the
NYPD’s policies at the time of Plaintiff’s identification. This argument is unpersuasive because
Dysart’s opinion is not specific to NYPD practices or policies. For example, her report
addresses the proper use of photobooks, photo arrays and lineup fillers as identification
procedures in general and in regard to what allegedly occurred in this case. She does not purport
to be an expert on NYPD police practices in particular.

9

2. Reliability of Dysart’s Opinion
Defendants argue that Dysart’s opinions are unreliable for three reasons. These
arguments are unavailing.
First, Dysart assumes for “certain aspects of [her] analysis and opinions” that Plaintiff is
innocent. Defendants argue that this is an unreasonable assumption. “[E]xpert testimony should
be excluded . . . if it is based on assumptions that are so unrealistic and contradictory as to
suggest bad faith . . . .” Electra v. 59 Murray Enters., 987 F.3d 233, 254 (2d Cir. 2021) (internal
quotation marks omitted). This assumption does not make Dysart’s opinions either unrealistic or
contradictory because she: (1) notes that her main conclusion holds “whether [Plaintiff] is
innocent or guilty”; (2) assigns the witnesses’ identifications degrees of likelihood based on an
assumption of innocence or guilt; and (3) notes that her assumption of innocence is based on a
request from Plaintiff and her understanding of testimony from numerous witnesses. Nothing
about the assumption suggests bad faith.
Second, Defendants argue that because Plaintiff requested Dysart to assume his
innocence for portions of her analysis, her analysis impermissibly rests on a determination that
Plaintiff credibly professed his innocence. This argument is unconvincing because experts may
provide opinions tailored to different factual scenarios that the jury may consider. Dysart’s
analysis plainly states that she “cannot make any credibility determinations” and that she does
not know “whether [Plaintiff] is innocent or guilty.” Nor do Defendants identify any part of
Dysart’s report in which she purports to weigh the evidence to conclude that Plaintiff in fact is
innocent.
Third, Defendants fault Dysart’s opinion for not citing scientific studies or empirical
evidence in support of particular statements. This argument is unpersuasive because the

10

challenged statements address the current consensus among eyewitness experts and are derived
from Dysart’s specialized experience. See Restivo v. Hessemann, 846 F.3d 547, 576 (2d Cir.
2017) (“Experts of all kinds tie observations to conclusions through the use of what Judge
Learned Hand called general truths derived from . . . specialized experience.” (internal quotation
marks omitted)). Defendants offer no other basis for finding Dysart’s opinion unscientific; they
neither contest the quality of her methods nor contend her uncited statements are incorrect.
3. Usefulness of Dysart’s Opinion for the Jury
Defendants briefly argue that Dysart’s opinion (1) usurps the role of the court and
invades the ken of the jury, (2) needlessly regurgitates testimony in laying out the facts relevant
to her opinion, (3) is unnecessary because a jury could apply common sense to decide the issues
addressed and (4) is irrelevant. These arguments lack merit.
First, Dysart’s opinion does not take on the role of judge and jury. Defendants argue that
a probabilistic statement in Dysart’s conclusion -- that absent an “improper suggestion . . . it
would have been highly unlikely for all three witnesses to independently choose [Plaintiff’s
photo] from hundreds of photographs of young, Hispanic men” -- constitutes a legal conclusion
or factual determination. This statement is an opinion based on Dysart’s expertise in eyewitness
identification and is precisely the kind of opinion that is not intuitive and may be helpful to the
jury.
Second, Dysart’s statement of the facts relevant to her opinion is both helpful and
necessary. Dysart is required by the Federal Rules of Civil Procedure to set out the “facts or
data” forming the basis of her opinion. See Fed. R. Civ. P. 26(a)(2)(B)(ii). To assess the
reliability of Dysart’s opinion, it is necessary to know the facts and assumptions on which it
rests.

11

Third, Dysart’s opinion is not simply common sense. The opinion explains the impact of
fear and stress on eyewitness identification, particularly because the science of eyewitness
identification often runs counter to everyday assumptions regarding the accuracy of perception
and reliability of memory. “A lay juror would not know . . . about the likely impact on
perception of extreme stress and weapon focus.” United States v. Nolan, 956 F.3d 71, 82 (2d
Cir. 2020).
Fourth, Dysart’s opinion is relevant. Defendants challenge the relevancy of Dysart’s
mention of DNA exonerations, lineup filler bias and show-up identification procedures. Dysart’s
reference to DNA exonerations provides important background about the propensity for
mistaken eyewitness identification. Dysart’s opinion about lineup filler is relevant to
understanding what occurred in this case. Even if the lineup is not directly a basis for liability,
discussion of the lineup is important for jurors to understand how it could be possible that
multiple witnesses identified Plaintiff in various contexts. For the same reasons, the show-up
identification procedure section of the opinion is admissible. Finally, at least some portions of
Dysart’s supplemental report remain relevant, even though it is a response to Defendants’ expert
who has since been withdrawn. For example, Defendants challenge Dysart’s initial report for
failing to provide citations regarding the state of knowledge on post-identification feedback in
1996, and Dysart’s supplemental report discusses this issue while citing supporting materials.
D.

Opinion and Testimony of Bhushan Agharkar, M.D.

Plaintiff retained Agharkar to “assess the existence and extent of [Plaintiff’s] psychiatric
difficulties as it relates to possible damages.” Agharkar opines that “the traumas that [Plaintiff]
endured as a result of his conviction and incarceration have caused him to suffer from [PTSD]”
and that Plaintiff “exhibits signs and symptoms consistent with acquired brain injury secondary

12

to blows to the head received during his incarceration.” Agharkar further opines that Plaintiff’s
disorders “will cause ongoing debilitating effects that will keep him from living a full life,” that
his “condition cannot be cured and will require lifelong psychiatric intervention” and that “the
etiology and symptoms of [Plaintiff’s] PTSD make him highly resistant to the type of therapy
most likely to be effective in alleviating his distress.” Defendants move to exclude Agharkar’s
opinion and testimony arguing that it is not based on reliable data or methodology, that it will not
assist the jury and that it will usurp the Court’s role. The motion is denied.
1.

Reliability of Agharkar’s Opinion

Defendants argue Agharkar’s opinion is unreliable because it: (1) contains no differential
diagnosis of Plaintiff’s mild neurocognitive disorder; (2) contains no differential diagnosis as to
Plaintiff’s panic disorder and does not consider all of the relevant DSM-5 criteria for that
condition; and (3) does not consider all of the diagnostic criteria for a PTSD diagnosis. These
arguments lack merit.
First, Defendants argue Agharkar’s opinion is unreliable because it fails to conduct a
differential diagnosis for the mild neurocognitive disorder. A differential diagnosis is “a patientspecific process of ruling out potential causes of an illness as unlikely, until one cause remains.”
Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 251 (2d Cir. 2005). Agharkar conducted a
differential diagnosis by considering numerous potential causes and conditions and ruling out
some of them, including those identified by Defendants’ own experts. Agharkar also relied on
testing by neuropsychologist Robert D. Shaffer, Ph.D., who conducted his own differential
diagnosis. Shaffer’s supplemental report notes that he ruled out “an inborn (constitutional)
variation of abilities” and considered certain aspects of Plaintiff’s condition to result from “an
acquired condition.” Shaffer also clarified why Plaintiff’s condition is consistent with “static

13

blows to the head” and not “acceleration/deceleration injuries.” Reading Agharkar’s report in its
entirety, it is plain that he considered and eliminated alternate causes of Plaintiff’s injury before
arriving at his diagnoses.
Defendants argue that Agharkar’s differential diagnosis should have explicitly ruled out
Plaintiff’s substance abuse as a cause for mild neurocognitive disorder. Defendants and their
psychological experts offer no meaningful scientific basis linking substance use to Plaintiff’s
symptoms. Although Defendants’ expert Fayer briefly mentions substance use in connection
with traumatic brain injury, he fails to explain how Plaintiff’s substance use relates to Plaintiff’s
mental health.
Second, Defendants contend that Agharkar’s opinion as to panic disorder is unreliable
because he did not conduct a differential diagnosis and consider all the diagnostic criteria for
panic disorder. Defendants’ argument is beside the point because Agharkar did not diagnose
Plaintiff with panic disorder.
Third, Defendants argue that Agharkar’s opinion as to PTSD is conclusory because it
does not consider the DSM-5’s second, third, seventh and eighth criteria for PTSD. An expert
must “employ[] in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). Defendants’ argument appears to be that Agharkar did not explicitly walk through each
of the eight diagnostic criteria for PTSD provided in the DSM-5. None of the expert
psychologists in this case, including Defendants’ experts, performed such a formalistic
enumeration of the DSM-5’s diagnostic criteria. And the criteria Defendants identify are
discussed in Agharkar’s report. As to the second criterion, intrusion symptoms, Agharkar
discusses several examples of Plaintiff experiencing such symptoms. As to the third criterion,

14

avoidance, Agharkar mentions Plaintiff’s avoidance behavior multiple times. As to the seventh
criterion, social and occupational impairment, Agharkar’s report specifically discusses Plaintiff’s
ability to work, conduct relationships, and complete goals. As to the eighth criterion,
consideration of substance use and other conditions, Agharkar conducted a differential diagnosis,
as discussed above. Agharkar’s PTSD opinion is not unreliable for failure to consider the
relevant diagnostic factors.
2.

Usefulness of Agharkar’s Opinion for the Jury

First, Defendants argue that too much of the report focuses on Plaintiff’s history and that
Agharkar need not opine on posturing, hypervigilance, social isolation and irritability because
any jury can understand those issues. To the contrary, Agharkar is required to provide an
overview of the facts he relied on in forming his opinion. See Fed. R. Civ. P. 26(a)(2)(B)(ii). It
is well within his purview to discuss the symptoms he considered as they relate to Plaintiff’s
mental health.
Second, Defendants identify a single alleged discrepancy between information in
Agharkar’s report and deposition testimony by another individual. Defendants do not explain
how this purported discrepancy materially impacted Agharkar’s opinion. The purported
discrepancy goes to the sufficiency of the facts underlying Agharkar’s opinion, an issue that
Defendants can address on cross-examination.
Finally, Defendants seek to exclude Agharkar’s supplemental report, arguing that it is
ipse dixit and usurps the Court’s role. These arguments are unfounded. Agharkar’s
supplemental report is primarily a rebuttal to Defendants’ expert reports. Defendants do not
challenge the report as an improper or untimely rebuttal. See generally Fed. R. Civ. P.
26(a)(2)(D)(ii) (setting restrictions on evidence offered in rebuttal). In rebuttal, Agharkar

15

properly offers counter-arguments to Defendants’ experts and questions the quality of their
analysis. Contrary to Defendants’ arguments, that some of Agharkar’s counter-arguments point
to common sense issues, suggest new conclusions, and use the word “reliable” is no basis for
exclusion.
IV.

CONCLUSION
For the reasons set forth above, Plaintiff’s motion to exclude the testimony of Steven A.

Fayer is GRANTED IN PART -- his opinion and testimony on ASPD are excluded as unreliable;
Plaintiff’s motion to exclude the testimony of DeAnsin G. Parker is DENIED; Defendants’
motion to exclude the testimony of Jennifer Dysart is DENIED; and Defendants’ motion to
exclude the testimony of Bhushan Agharkar is DENIED.
The Clerk of Court is respectfully directed to close the motions at Docket Nos. 206 and
209.
Dated: May 13, 2021
New York, New York

16