Plaintiff William A. White (“White”), a federal inmate, initiated this action alleging nine distinct claims against the United States of America (“United States”) and the Federal Bureau of Prisons (“BOP”) (collectively, the “Federal Defendants”), and two distinct claims against BOP inmate Robert Kenneth Decker (“Decker”).
Dr. Richard M. Samuels conducted an independent psychological examination of White. The Federal Defendants filed a motion to strike Dr. Samuels’ report.
Psychology Expert Witness
Richard M. Samuels has nearly fifty years of medical experience. He has conducted 2,500 psychological evaluations, treated thousands of patients, and testified in several states.
He is licensed in Arizona and New Jersey and is a fellow of the American Psychological Association and two of its divisions.
The Federal Defendants argued that Samuels is not qualified to be an expert, the report is outdated, and this report is neither helpful nor based on sufficient facts related to the issues in this case.
As to the first step, the Court found the Federal Defendants’ argument unconvincing. Samuels is a trained psychologist who had been licensed at one time in two different states, giving him general expertise regarding the issue of standard of care for White’s mental health needs. He need not be a specialist in Indiana or hold active registration as a psychologist to render his report useful.
Moreover, Samuels’ medical opinion is not based on ‘junk science’, but almost fifty years of medical experience. The Federal Defendants pointed out that Samuels is not registered with the American Board of Psychology, however, both the Middle District of Florida and Middle District of Pennsylvania accepted Samuels’ testimony and ruled him qualified to provide an expert opinion.
Due to his specific knowledge of the circumstances and experience in the field, Samuels’ testimony and report will assist the Court in understanding the evidence and in determining the facts at issue in this case.
Held
The Court denied the Federal Defendants’ motion to strike Dr. Richard Samuels’ report.
Key Takeaway
Anyone with relevant expertise enabling him to offer responsible opinion testimony helpful to judge or jury may qualify as an expert witness. In this case, Samuels has established that he has specialized knowledge as required by Rule 702.
This case involves the Fair Housing Act (“FHA”) and Americans with Disabilities Act (“ADA”). Defendant, the City of Springfield, prohibited Plaintiffs from operating a home for residents in recovery from drug or alcohol addiction. Defendant claimed their zoning ordinance prohibited the home from operating in an R-SF Zone because it is a “group home” under the City’s zoning code and there is another “group home” located within 1/4 mile. The City classified the home as a group home because the residents who occupy the home are in recovery from drug and alcohol abuse. The City denied Plaintiffs’ request for a reasonable accommodation under the FHA and ADA.
Plaintiffs brought claims of failure to accommodate, disparate treatment, and disparate impact under the ADA and the FHA.
Plaintiffs have disclosed three experts in this matter. Stephen D. Villavaso was disclosed as an expert in professional and urban planning. Andrea Stevens is a real estate agent, who Plaintiffs wish to have testify as to the number of residential listings in the City of Springfield during a given timeframe. Finally, John Majer was disclosed to provide expert opinions concerning the operation of residential group homes for substance abuse treatment.
Defendant filed a motion to exclude the testimony of the proposed expert witnesses disclosed by Plaintiffs for the reason that their proposed testimony did not meet the requirements set forth in Rule 702.
Urban Planning Expert Witness
Stephen D. Villavaso, J.D., FAICP is a professional urban and regional planner and a land use/zoning attorney with over forty years of experience in city and regional planning, environmental regulations, land use law, public administration and zoning.
Villavaso’s degrees include a Bachelor of Science in Economics and a Master of Urban and Regional Planning, both from the University of New Orleans, and a Juris Doctorate from Loyola University of New Orleans. He has served the Louisiana Chapter of the American Planning Association, with thirty-five years of service to the APA — receiving both the Chapter’s Leadership and Distinguished Service Awards along the way. He is the Past-President of the Louisiana Chapter of the American Planning Association.
Andrea Stevens is a real estate agent affiliated with Keller Williams Realty Elevate in Joplin, Missouri. Stevens has been practicing as a real estate professional since 2021 and is licensed by the Missouri Real Estate Commission.
John M. Majer, Ph.D. is a full Professor of Psychology at Harry S. Truman College and a Consultant for the Center for Community Research at DePaul University, in Chicago, Illinois.
Majer has extensive research experience in the field of clinical-community psychology, mostly involving persons with substance use disorders and sober living homes.
Defendant argued that the experts’ opinions are not based on reliable methodology, are not supported by sufficient facts or data, and are based upon theories that have not been tested.
Stephen Villavaso is an expert in professional and urban planning, who offers opinions on municipal zoning practices, the City’s application of its ordinances, and the compatibility of the spacing requirements with accepted planning principles and DOJ/HUD guidance. Andrea Stevens is a licensed real estate professional, who analyzes residential housing market conditions in Springfield, including the availability of suitable properties during the relevant timeframe. Dr. John Majer is an expert in the operation of residential recovery housing, who provides insight into the therapeutic and operational requirements of recovery homes, as well as the practical implications of spacing requirements on their viability.
This Court agreed that the arguments raised by Defendant’s motion go to credibility and the weight of the testimony which are subjects that may be raised during cross-examination.
However, federal courts should limit their review to the materials that were presented to the local land use board while considering reasonable accommodation claims, except in circumstances where the board prevents applicants from presenting sufficient information. This general rule however, does not apply to disparate impact and disparate treatment discrimination claims.
The Court found that the Plaintiffs were not prevented from providing the information they now seek to present. Plaintiffs were invited to resubmit their request to the proper individual, and asked to address several issues, which they chose to ignore when making their resubmission. Thus, the expert reports will be considered in the disparate impact and disparate treatment claims. The expert reports will, however, be excluded in the failure to accommodate claim.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude or limit the testimony of Plaintiffs’ expert witnesses Stephen D. Villavaso, Andrea Stevens, and Dr. John Majer.
Key Takeaway
Plaintiffs’ experts may be relevant under Rule 702 and at this time, there is no basis to exclude them under Daubert. However, the Court excluded Plaintiffs’ expert testimony in the failure to accommodate claim because it was not presented to the City as part of Plaintiffs’ request for accommodation.
Case Details:
Case Caption:
New Beginning Sanctuary V. City Of Springfield, Missouri
Plaintiffs Josepha Austin, Robin Cruz, Gordana Pobric, and Jennifer Haselman brought this action claiming harm resulting from their exposure to polychlorinated biphenyls (“PCBs”).
Defendants Monsanto Company, Bayer CropScience, L.P., Solutia, Inc., and Pharmacia L.L.C. (collectively “Monsanto”) filed a motion to exclude the testimony of Dr. Gayle Morse. Plaintiffs intended to call Morse to testify about cognitive injuries they allegedly suffered as a result of PCB exposures.
Psychology Expert Witness
Gayle Morse is a licensed psychologist and neuropsychologist in New York State. She holds a doctorate in counseling psychology and is a tenured professor at Russell Sage College, where she serves as the internship director of the mental health counseling and community program. She currently teaches psychology courses and maintains a private clinical practice.
Morse has been involved in PCB research since 1994. Her work has included multiple studies on the impacts of PCBs on members of the Akwesasne Mohawk Tribe. That work reportedly included the neuropsychological testing of hundreds of people who were exposed to PCBs. Morse has authored several peer-reviewed articles on the effects of PCB exposure on human populations, and has testified that one of her projects revealed evidence of adverse effects of PCBs on human neuropsychological functioning.
In her expert report, Morse concluded, “with a reasonable degree of medical/scientific certainty, that the above exposures to PCBs are consistent with [Plaintiffs’] injuries and that said PCB exposures were a significant contributing cause to their cognitive conditions.”
Monsanto’s challenge to Morse focuses on her qualifications and the reliability of her conclusions.
Qualifications
With respect to her qualifications, Monsanto noted that Morse spends most of her professional time working in academia, with her clinical practice occupying only one day per week. Within her clinical practice, she generally treats people with severe psychopathology such as schizophrenia or long-term trauma. In her deposition testimony, she distinguished her practice from that of a neuropsychologist.
She also testified that she performs neuropsychology evaluations approximately twice a year. Monsanto criticized Morse for not being board certified in neuropsychology. The Court found that board certification is only relevant in the context of an expert’s other qualifications.
Morse concedes that she is not a neuropsychologist, and that she only conducts such testing occasionally.
The neuropsychological tests in this case were administered by Dr. Eric Mart. Monsanto did not challenge his qualifications to perform and interpret such testing.
The Court held that Morse is not testifying outside her area of expertise. Nor is she merely relaying the opinion of Mart. Indeed, there is no suggestion that Mart formed any sort of opinion regarding the impact of PCBs. Instead, it is Morse who independently reviewed the test results and formed an opinion about how those results align with her knowledge about the potential impacts of PCB exposure.
Reliability
Morse reviewed not only Mart’s test results, but also the reports of Plaintiffs’ experts Kevin Coghlan, who generated data regarding PCB levels at Burlington High School, and Dr. Paul Rosenfeld, who opined on the level of hazard resulting from those PCB levels. She further reviewed the report generated by Dr. David Carpenter, with whom she has worked in the past and who offered his opinion as to general causation. In the course of preparing her own report, Morse interviewed each Plaintiff. Applying her professional knowledge, Morse developed opinions about the individual health impacts of PCB exposures. Her report explicitly states that she considered other possible causes of Plaintiffs’ conditions, and that she reached her conclusions with a reasonable degree of medical or scientific certainty.
Monsanto is critical of Morse’ use of Plaintiffs’ “premorbid functioning” as a tool for determining that PCBs played a role in causing their conditions. In her deposition, Morse explained that she was not able to rule out the impact of all other factors, such as one Plaintiff’s tuberculosis or another’s thyroid condition, since she is not a physician.
Aside from those issues, she was able to compare the Plaintiffs’ abilities and achievements prior to their time at Burlington High School with their abilities after their respective PCB exposures, note the differences, and opine as to cause. Her caveats about certain medical conditions did not undermine her methodologies, and instead left room for cross-examination and argument regarding her conclusions.
Monsanto’s final criticism of Morse is that she did not identify the dose at which PCBs could be expected to cause the conditions discussed in her report. However, more than one expert in this case has offered the opinion that the dose-response relationship for PCBs may be nonlinear, and even non-threshold.
Held
The Court denied Monsanto’s motion to exclude the testimony of Gayle Morse, Ph.D.
Key Takeaway:
Plaintiffs have shown by a preponderance of the evidence that Morse is qualified and that the data on which she is relying, which includes both neurological testing and PCB exposure estimates, is sufficient and reliable. Moreover, Plaintiffs have carried their burden of showing that Morse is applying reliable methodologies based on her significant experience with PCB studies, that she reliably applied accepted principles and methodologies to the facts of this case, and that her testimony will assist the trier of fact.
Defendant Bryant Wilson (hereinafter “Defendant”) was charged with voluntary manslaughter and possession of contraband in prison, following a prison fight at USP Canaan that resulted in the stabbing death of Defendant’s victim on November 28, 2021.
Defendant did not contest that the fight happened, nor that the death of his victim resulted; rather, he asserted that he acted in self-defense.
On November 10, 2025, Defendant notified the Government that he wished to offer the expert testimony of Dr. Stephen M. Timchack, PsyD at trial, pursuant to Rule 702 of the Federal Rules of Evidence. He indicated that Timchak would testify to Defendant’s symptoms consistent with Post Traumatic Stress Disorder (“PTSD”).
Psychology Expert Witness
Dr. Stephen M. Timchack, PsyD has extensive training and background in both clinical and forensic psychology.
Timchack has held faculty positions at Wilkes University, Misericordia University, and the University of Scranton.
Psychiatric evidence cannot serve as a defense unless it renders the Defendant legally insane, and even if the Defendant is deemed insane, such evidence is inadmissible unless it negates the mens rea of the crime charged.
Here, the Government thoroughly analyzed this issue with respect to the mens rea requirement of voluntary manslaughter.
Defendant did not dispute the Government’s argument; instead, Defendant narrowly focused on admissibility of the psychiatric evidence for purposes of his self-defense claim. Thus, Defendant essentially conceded that his PTSD evidence did not truly negate mens rea.
The PTSD evidence did not negate mens rea, so it was inadmissible. Furthermore, Defendant’s analogous reasoning did not hold up under scrutiny. As the Government noted,
“Battered woman’s syndrome focuses on the perceived threat posed by the batterer on the battered, while PTSD, as shown by Timchak’s report, focuses on a more general, perceptual perceived threat posed to the PTSD-sufferer by his surroundings . . . Here, [Defendant] was not under duress or defending himself against his “batterer” or someone who had assaulted him in the past. So [Defendant’s] PTSD is much less probative to the disputed issues here than those in the cases relied on by the Defendant.”
Even if the Court were to find that PTSD negates the mens rea of voluntary manslaughter in this case, the psychiatric evidence would still be inadmissible as both irrelevant and confusing to the jury.
Held
The Court granted the Government’s motion in limine to preclude the expert testimony of Dr. Stephen Timchak.
Key Takeaway:
Simply, PTSD does not constitute insanity, nor does PTSD negate the mens rea for voluntary manslaughter. The Court posits, as a theory, that PTSD could have inflamed Defendant’s reaction such that he carried out the killing in the heat of passion. In other words, PTSD likely offers an explanation, not a negation.
Case Details:
Case Caption:
USA V. Wilson
Docket Number:
3:24cr239
Court Name:
United States District Court, Pennsylvania Middle
Order Date:
November 17, 2025
Please refer to the blog previously published about this case:
This case arises under the Trafficking Victims Protection Reauthorization Act (TVPRA), which provides victims of sex trafficking a civil remedy against the perpetrators and beneficiaries of their trafficking.
Plaintiff Doe (C.L.F.) filed this action to recover for alleged harm she experienced from being trafficked at a Motel 6 in Wichita, Kansas, that she claims was owned and operated by the Defendants.
Defendant Kisan, Inc. filed a motion to exclude the testimony of Dr. Katy Fowler Sutton, one of C.L.F.’s designated expert witnesses.
Psychology Expert Witness
Kathryn Fowler Sutton graduated with a Master of Science in Clinical Psychology and in 2004 received her Doctor of Clinical Psychology (PsyD). She has been a Licensed Specialist in School Psychology (Texas) since 2005 and a Licensed Clinical Psychologist (Texas) since 2006. In her twenty years of clinical practice, approximately 15% of her patients have been survivors of sex trafficking. As part of her annual license renewal requirements, she has to complete mandatory training in human trafficking.
She also has fourteen years of experience being an expert witness and has never before been struck. In addition to being an expert witness, she also currently continues to see patients, some of whom are sex trafficking survivors.
Kisan and the G6 Defendants sought to exclude Sutton’s opinions that
(1) C.L.F. meets the criteria of Post-Traumatic Stress Disorder (PTSD) and other specified trauma-and-stressor-related disorders; and
(2) C.L.F.’s PTSD is caused by her having been sex-trafficked rather than any other previous traumatic experiences.
Defendants claimed that these opinions should be excluded because they are both irrelevant and unreliable.
A. Relevance
Defendants argued that the testimony of Sutton is inadmissible because it is irrelevant.
According to Defendants, the fatal flaw in Sutton’s report is that “the word ‘motel’ does not appear.” Worse yet, the report stated that C.L.F.’s alleged trafficking was “facilitated by social media platforms.” In this case, the alleged trafficking occurred only at motels owned and operated by Defendants, and C.L.F. “met her trafficker at a gas station,” not on social media. This might be problematic as expert testimony must be connected to “the facts of the case.”
While a report based on social-media-facilitated sex trafficking at no specific locations may not be tied to the facts of this case, Sutton’s report is. Sutton interviewed C.L.F. for 5 hours and 12 minutes. During that time, Sutton and C.L.F. discussed C.L.F.’s early life in detail, C.L.F.’s experiences during the alleged trafficking, and C.L.F.’s recovery in recent years. They specifically talked about her “thoughts and feelings” associated with the alleged trafficking, and Sutton collected enough information to provide diagnoses of and recommended treatments to C.L.F.
Further, in her deposition Sutton explicitly confirmed that she tied her interview with C.L.F. to the facts of this case. Sutton used the complaint during the interview to “refer specifically to the incident[s] in question” at the motels in issue. When asked if they discussed the relevant motels “where [C.L.F.] had a traumatic experience,” Sutton responded: “Yes.” During the interview, Sutton ensured to “very specifically explain to C.L.F. what events [she was] referring to.” In the Court’s view, Sutton’s methodology was “sufficiently tied to the facts of the case.”
The Court held that her testimony was relevant under Rule 702.
B. Reliability
Defendants asserted that the two opinions they want stricken should be excluded because they are unreliable. To Defendants, Sutton’s opinions are not the product of a reliable methodology and do not reflect a reliable application of psychology to the facts of the case.
1. Sutton’s Diagnosis of C.L.F.’s PTSD and Other Trauma Disorders
Defendants objected to Sutton’s opinion that C.L.F. met the criteria for PTSD and other specified trauma-and-stressor-related disorders.
First, Defendants argued that Sutton’s diagnosis is unreliable because she “did not follow accepted medical practice in selecting or administering tests” for PTSD in her interview of C.L.F.
The Court understood Defendants’ stance, but ultimately their attacks are best left for “[v]igorous cross-examination.” To admit Sutton’s testimony, C.L.F. “need not prove to th[is court] that the expert’s testimony is correct;” she simply must “prove by a preponderance of the evidence that the testimony is reliable.” Even with its alleged flaws, Sutton’s opinion that C.L.F. met the criteria for PTSD is reliable by a preponderance of the evidence.
Defendants also found fault with Sutton’s administration of the CAPS-5, specifically her failure to use the Life Events Checklist (LEC-5) during CAPS-5 Step 1. They said that because Sutton did not use the LEC-5 for the Step 1 inquiry, her opinions are unreliable to the point of inadmissibility. But CAPS-5 allows the practitioner to administer the LEC-5 or some “other structured trauma screen” to begin. Sutton’s report, as noted, details information about C.L.F.’s history of trauma gleaned from the hours-long interview Sutton conducted of C.L.F., which in the Court’s view qualifies as a structured trauma screen.
Second, Defendants argued that Sutton’s diagnosis of C.L.F. with PTSD is unreliable because Sutton’s conclusion contains conflicting diagnoses. However, the Court did not accept that Sutton’s “conflicting diagnoses” are so unreliable that they defy the “methods and procedures of science.”
2. Sutton’s opinion that sex-trafficking, not other traumatic experiences, caused C.L.F.’s PTSD
Defendants took issue with Sutton’s opinion that C.L.F.’s “history of trafficking,” not any of her other previous traumatic experiences, caused her PTSD.
As Sutton noted in her report (and as Defendants state in their motion), the stressors with potential to cause PTSD for C.L.F. other than her trafficking experiences are the death of her grandmother, her placement in foster care, the incarceration of her first child’s father, her abusive relationship circa 2020, and apparent substance abuse. Defendants claimed that Sutton only ruled out C.L.F.’s grandmother’s death and her placement in foster care before declaring that C.L.F.’s trafficking experiences were the sole cause of her PTSD. Sutton certainly did rule those stressors out; she concluded “within a reasonable degree of scientific certainty” that C.L.F.’s PTSD responses are associated with her history of trafficking, not the “grief” she experienced from her grandmother’s death or foster care.
Now Sutton did not explicitly rule out all potential causes, but her report evidences that she was aware of these other stressors when opining on the cause of C.L.F.’s PTSD. While the Court felt that Sutton should improve her recordkeeping and notetaking as it pertains to conducting diagnoses for litigation, her extensive experience with evaluations, her five-hour interaction with C.L.F., her deposition testimony, and the conclusions in her report all favor reliability here.
C. Scope
Though Sutton can testify as to her opinion that C.L.F.’s PTSD was caused by the trafficking-related trauma discussed during the evaluation, the Defendants pointed out that Sutton may not characterize any incidents C.L.F. experienced as “sex trafficking.” Sutton’s report and testimony is rife with her calling the incidents C.L.F. discussed “sex-trafficking.” The Court agreed. Defendants are right to point out that Sutton is not permitted to opine on ultimate legal issues.
In other words, Sutton may provide her opinion that C.L.F. suffers from PTSD and other trauma disorders, and she may provide her opinion as to what caused C.L.F.’s PTSD. But in describing these causes, she must keep her descriptions within certain limitations.
Held
The Court denied in part the Defendant Kisan, Inc.’s motion to exclude the proposed testimony of Plaintiff’s expert Dr. Kathryn Sutton.
Key Takeaway:
Sutton is free to discuss the trauma-causing incidents concerning C.L.F., but only in permissible ways. The Court is aware that these incidents necessarily involve sex or even commercial sex, but the testimony is permissible so long as it does not characterize any experiences or incidents as sex trafficking or trafficking.
Plaintiffs Elizabeth Mirabelli, Lori Ann West, and others brought this action on behalf of themselves and a putative class challenging school district policies regarding the social transition of students who identify as transgender. The central dispute concerns whether California’s public school teachers and staff may notify parents when a student uses a different name or different pronouns or gender expressions that diverge from the name and sex assigned to the child at birth.
Defendants designated two expert witnesses: (1) Christine Brady, Ph.D., a clinical psychologist; and (2) Darlene Tando, LCSW, a licensed clinical social worker.
Plaintiffs contended these experts’ opinions: (1) relied on unreliable principles, including quasi-spiritual beliefs; (2) lacked sufficient factual basis; (3) contradicted constitutional principles; (4) contained internal inconsistencies; and (5) were cumulative.
Psychology Expert Witness
Christine Erin Lam Brady is a clinical psychologist and Clinical Associate Professor at Stanford University School of Medicine’s Pediatric and Adolescent Gender Clinic.
She holds a Ph.D in Child Clinical Psychology, an M.A. in Psychological Sciences, and a B.S. in Psychology.
Plaintiffs argued that Tando’s statements that gender identity is “part of a person’s soul” and her references to “male and female brains” reflected quasi-spiritual rather than scientific foundations for her opinions.
While such statements can affect the credibility of the witness, they did not render the entirety of the testimony inadmissible. Plaintiffs also noted the absence of studies examining social transition without parental involvement, while the cited literature presumes parental participation. The Court acknowledged the absence of supporting research for healthy gender transition without parental involvement. This absence, however, did not render inadmissible Tando’s testimony based on broader clinical experience with transgender youth. The limitation concerned the weight rather than admissibility.
Plaintiffs argued that the experts’ opinions run contrary to constitutional principles that sometimes require individualized determinations of parental fitness. At the same time, there is also a general constitutional presumption that fit parents act in their children’s best interests.
While these principles, including the presumption that fit parents act in their children’s best interests, maintain their vitality, expert opinion admissibility under Rule 702 does not turn on constitutional alignment; such issues go to the merits.
B. Expert Disagreement Is Not a Basis for Exclusion
In essence, Plaintiffs contended that their experts are “right” and Defendants’ experts are “wrong” requiring exclusion. “Correctness,” however, is not the admissibility standard.
Here, Defendants’ experts need only demonstrate their opinions meet Rule 702‘s requirements by a preponderance of the evidence, not that they have definitively proven causation or eliminated all alternative explanations. As a result, the Court found that such disagreement about whether there are mental health benefits from transitioning concerned weight, not admissibility.
Additionally, because this matter proceeds to a bench trial, standards for excluding expert testimony apply with additional flexibility.
Alternatively, Plaintiffs requested limiting Defendants to one expert witness (either Brady or Tando). Brady and Tando represented distinct disciplines. For example, Tando’s counseling emphasized social systems, skill development, and client advocacy.
Defendants argued that the two experts offered different disciplinary approaches, and each obtained different perspectives from different client bases. The Court found these differences sufficient.
Held
The Court denied the Plaintiffs’ motion to exclude the testimony of Defendants’ experts Darlene Tando and Christine Brady.
Key Takeaway:
Plaintiffs highlighted the fact that both experts — in their own practices — refused to treat minors without parental consent. The reality of their own practices did tend to contradict their view that schools may facilitate gender transition safely without parental involvement. Even so, the experts’ ongoing clinical experiences counseling transgender youth provided a sufficient foundation here for admissibility.
Raeshon Strickland filed a lawsuit against Associated Foods Stores, Inc., alleging that she was subjected to sexual harassment and a hostile, intimidating, and offensive work environment. Strickland further contended that she experienced retaliation after opposing or reporting the misconduct.
Defendant filed a motion to exclude part of the expert report prepared by Plaintiff’s expert, Dr. Louise F. Fitzgerald, Ph.D. while Plaintiff filed a motion to exclude Defendant’s expert Dr. Nancy B. Cohn, Ph.D. under Rule 702.
Psychology Expert Witnesses
Dr. Louise F. Fitzgerald, Ph.D., is a Professor Emerita at the University of Illinois at Urbana-Champaign with a distinguished career dedicated to understanding and addressing gender-based violence, workplace sexual harassment, and women’s psychological well-being.
Fitzgerald received her Ph.D. in Psychology from The Ohio State University in 1979, following her M.A. from the same institution and a B.A. in Psychology (magna cum laude) from the University of Maryland. Her academic journey has been marked by a steadfast commitment to investigating sexual harassment, particularly in institutional settings such as academia, the military, and the workplace.
Dr. Nancy B. Cohn, Ph.D. is a fellowship-trained forensic psychologist. Her areas of expertise include evaluations for the criminal courts, family court and civil matters.
She has a Ph.D. in Clinical Psychology from the University of Utah.
Fitzgerald’s testimony pertains to “the nature, extent and causation of the [alleged] injures, damages, losses, and harms sustained by [Plaintiff],” among other things.
Defendant sought to exclude only Part II of her report, which contains “a review of the scientific literature on sexual harassment: its nature, organizational causes, and its psychological consequences to the individuals who experience it.” Defendant did not challenge Fitzgerald’s qualifications, but argues that Part II of the report is not reliable or relevant under Rule 702, and is unfairly prejudicial under Rule 403.
The Defendant first argued that Part II of Fritzgerald’s report is not relevant because it “provided academic theories of sexual harassment,” with no “analysis specific to [Plaintiff] or [Defendant]” regarding “the alleged emotional distress suffered by Plaintiff because of her employment at AFS,” and because it will not “advance a material aspect of the case.”
Upon reviewing Part II, the Court concluded it is relevant. The studies found in Part II provide the scientific knowledge upon which Fitzgerald’s conclusions are based in part and are not themselves conclusions about the case. Rather, and in addition to the studies, Fitzgerald’s ultimate opinions rest on “the facts of the present case,” and “methods of clinical science.”
Here, Part II discussed the causes of sexual harassment, emotional and psychological consequences of sexual harassment, and organizational climate for sexual harassment. Because the scientific studies cited to in Part II go beyond mere discussion of gender stereotypes, the Court found that Part II will help the trier of fact understand issues that are not “well within a layperson’s common knowledge.”
b. Plaintiff’s Motion toExclude
Plaintiff argued that Cohn’s report is unreliable because (1) she did not conduct a psychological evaluation of Plaintiff; (2) she did not ask to review the documentation from Plaintiff’s expert’s evaluation; (3) she did not understand the diagnostic importance of the specificity of certain trauma symptoms; and (4) her report contains certain factual errors and faulty assumptions.
However, Cohn’s testimony does not seek to diagnose Plaintiff, but instead opines as to the purported flawed reasoning of Fitzgerald. The Court agreed with Defendant that it is reasonable for Cohn to rely on only the relevant documents available in the case, including Plaintiff’s therapy records, Fitzgerald’s report, pleadings, deposition transcripts, and other court filings.
The Court further agreed with Defendant that the mere fact Cohn did not review the underlying data of Fitzgerald’s evaluation of Plaintiff, alone, does not cause Cohn’s expert report as a whole to be unreliable under Rule 702.
Held
The Court denied Defendant’s partial motion to exclude the testimony of Louise Fitzgerald.
The Court denied Plaintiff’s motion to exclude the testimony of Defendant’s expert witness, Nancy Cohn.
Key Takeaway:
Courts have excluded expert testimony involving gender stereotypes on the grounds that such testimony could be understood by a lay person. Fitzgerald’s report discusses causes and effects of sexual harassment in the workplace, as opposed to general stereotypes.
Plaintiff Mary Spates (“Plaintiff”) as parent and natural guardian of her minor son, C.M., filed a suit against Defendant Horry County School District (“Defendant” or “School District”), alleging violations of C.M.’s Fourteenth Amendment due process rights.
Defendant Horry County School District filed a motion in limine seeking to exclude or limit the testimony of Plaintiff’s treating mental health providers, Jessica Greene, LPC, and Jameion Blanton Fowler, MSW, LISW-CP, as well as a written report authored by Fowler.
Psychology Expert Witness
Jessica Greene, LPC holds a PhD in General Psychology from Northcentral University (2020), a master’s degree in Counseling with an emphasis in clinical mental health counseling (2006), and a Bachelor of Arts degree in Sociology from Coastal Carolina University (2003).
She is known for her passion in advocating for her clients and fighting to educate about trauma-informed and cognitive behavioral therapy treatment.
Jameion Blanton Fowler, MSW, LISW-CP (SC), LCSW (NC) is currently working as an Independently Licensed Social Work Clinician with A Place To Start Counseling. He is also the founder of Blanton Clinical Consulting Group (BCCG).
He has worked with a variety of different populations throughout his career. These include Mental Health, Substance Abuse and work with Children and families.
Defendant argued that Plaintiff failed to designate these witnesses as experts under Rule 26(a)(2), failed to provide the required disclosures under the Court’s scheduling orders, and now seeks to introduce opinions on diagnosis and causation that qualify as expert testimony.
The Court recognized that Rule 26 distinguishes between retained experts, who must provide a written report under Rule 26(a)(2)(B), and treating providers, who may testify as hybrid fact/expert witnesses without such a report.
Motion to Exclude or Limit
Here, Plaintiff did not timely disclose Greene or Fowler under Rule 26(a)(2). Her initial interrogatory responses confirmed no experts would be offered, and only on the final day of discovery in April 2024 did Plaintiff identify these providers and produce Fowler’s report. Such a late disclosure deprived Defendant of the opportunity to depose the providers or prepare rebuttal expert testimony before the close of discovery. The absence of a Rule 26(a)(2)(C) summary compounds this deficiency.
Allowing the evidence would disrupt the trial, requiring the Court to reopen discovery and delay a consolidated trial already scheduled. While the Court acknowledges the importance of treating providers’ testimony to Plaintiff’s claims, Rule 26 and Rule 37 require balancing that importance against fairness to the opposing party. Finally, Plaintiff offered no persuasive explanation for her failure to comply with the disclosure deadlines. On balance, these factors show that exclusion is warranted under Rule 37(c)(1).
At the same time, it is undisputed that Greene and Fowler are treating providers. Courts have permitted treating providers to testify about observations and diagnoses made during treatment, even absent a Rule 26(a)(2)(B) report. But they may not provide litigation-driven causation opinions prepared for trial. Fowler’s December 2023 report does just that-it expressly attributed C.M.’s depression to his “current legal situation and the family’s case against his former school district.” That opinion fell within Rule 702 and requires proper disclosure.
Plaintiff’s non-disclosure also meant that Greene’s and Fowler’s proposed opinions have never been scrutinized under the Court’s gatekeeping function pursuant to Federal Rule of Evidence 702 and the Daubert standard.
Held
The Court granted in part and denied in part the Defendant Horry County School District’s motion in limine to exclude or limit the testimony of Plaintiff’s treating mental health providers, Jessica Greene, LPC, and Jameion Blanton Fowler, MSW, LISW-CP.
Plaintiff’s treating providers, Jessica Greene, LPC, and Jameion Fowler, MSW, LISW-CP, may testify as fact witnesses regarding their treatment of C.M., including observations and diagnoses formed in the ordinary course of care. However, because Plaintiff failed to comply with Rule 26(a)(2) and has not shown substantial justification or harmlessness under Rule 37(c)(1), the providers may not offer undisclosed expert opinions on the causation of C.M.’s conditions or on the adequacy of the School District’s conduct. For the same reasons, Plaintiff may not introduce the December 16, 2023, written report by Fowler, which constitutes litigation-driven expert opinion.
The Court also noted that Plaintiff’s proffered opinions have not undergone the reliability screening required by Federal Rule of Evidence 702 and Daubert, further supporting their exclusion.
Key Takeaway:
Treating providers are often assumed to fall outside Rule 26’s disclosure requirements because they are not retained experts. But Rule 26(a)(2)(C) expressly requires a summary disclosure when a treating provider’s testimony implicates Rules 702-705. Counsel who conflate treatment testimony with litigation-driven expert opinions risk exclusion under Rule 37(c)(1).
Plaintiff Mollie Minskoff brought this case against her former boyfriend, Defendant Hector Mendoza Jr., for sexual assault and sexual battery. Defendant brought a counterclaim for defamation, in response to which Plaintiff brought a counterclaim under New York’s Anti-Strategic Lawsuits Against Public Participation statute.
Plaintiff and Defendant engaged in an “on-again, off-again sexual relationship between 2010 and 2015.” At one point in time, the parties lived together in an apartment in New York City owned by Plaintiff’s father. In late 2011, Defendant moved to Los Angeles while Plaintiff remained in New York. For the next several years, the parties continued to see each other occasionally. Plaintiff alleged that Defendant sexually assaulted and battered her on multiple occasions between 2012 and 2015. Defendant maintained that, although the parties had sex on these occasions, all of their interactions were consensual.
The parties agreed that the Plaintiff came to the Defendant’s home the night of August 30, 2014, and that Defendant recorded an argument between the parties that night (the “August 30 recording”). According to Plaintiff, however, Defendant did not record this argument until after Defendant raped her.
Plaintiff filed a motion to exclude the testimony of Defendant’s expert Dr. Lenore E. Walker while Defendant filed a motion to exclude the testimony of Plaintiff’s expert Nick Barreiro.
Psychology Expert Witness
Dr. Lenore E. Auerbach Walker is a licensed psychologist in several states and Board Certified in Clinical Psychology and in Couples and Family Psychology by the American Board of Professional Psychology.
She has practiced all over the U.S. and in several other countries around the world. She earned her doctoral degree in psychology from Rutger’s, The State University in N.J. in 1972 after attaining an M.S. in Psychology from City College of the City University of New York (CCNY) in 1967 and a B.A. from Hunter College of CCNY in 1962.
In 2004, she earned an M.S. in Clinical Psychopharmacology from Nova Southeastern University. Walker began an independent practice of psychology after obtaining her license in N.J. in 1974 where she provided psychotherapy and assessment services throughout the years even after she moved to Denver, Colorado in 1975 and became licensed there. In 1981, she became a full-time employee of Walker & Associates and built her independent psychology practice adding forensic services to psychotherapy until 1998 when she began training other psychologists at Nova Southeastern University College of Psychology.
Nick Barreiro is a certified audio video forensic analyst who has received training in audio forensics from the FBI and the California Department of Justice, among other institutions. In addition to this training, Barreiro has more than sufficient experience: he spent fifteen years as a law enforcement officer in California, during which time he handled all media forensics including collecting, enhancing, and analyzing video footage from surveillance cameras, cell phones, traffic cameras, body-worn cameras, and dash cameras.
Plaintiff’s Motion toExclude Expert Opinion of Dr. Lenore Walker
Defendant retained Lenore Walker, a licensed psychologist, to conduct a forensic psychological analysis of him “to assess for possible psychological damages resulting from harassment, defamation, and false allegations of domestic violence and rape from his former girlfriend, [Plaintiff] Mollie Minskoff.”
Walker’s Initial Forensic Psychological Report on Defendant
Walker’s initial report on Defendant purported to provide opinions on the damages Defendant experienced from, among other things, Plaintiff’s alleged defamation. To support Defendant’s claim that he is entitled to emotional damages from Plaintiff’s defamation, such emotional damages must have been caused by the defamatory statements.
Walker did not once mention in her initial report any impact of the allegedly defamatory statements on Defendant. Instead, her report focused on the emotional and mental damages Defendant suffered from his relationship with Plaintiff, which predated the allegedly defamatory statements at issue by several years and is not relevant to Defendant’s defamation counterclaim or any other claim in this case. Because Walker did not include any analysis of damages Defendant suffered as a result of Plaintiff’s alleged defamation, or any other opinions relevant to the issues in this case in her initial report, the Court held that her opinions contained in that report will not be helpful to the trier of fact and are thus excluded.
Walker’s Rebuttal Forensic Psychological Report on Plaintiff
The parties did not dispute that Walker may testify about the results of the Detailed Assessment of Posttraumatic Stress she administered to Plaintiff, through which Walker found that Plaintiff “meets the criteria for a diagnosis of PTSD.” Nor did Plaintiff challenge the reliability or relevance of the results of Walker’s administration of the Danger Assessment or the Adverse Childhood Experiences Assessment to Plaintiff.
The Personality Assessment Inventory that Walker administered to Plaintiff is plainly a reliable methodology for an expert to use, especially given that Plaintiff’s own expert also administered a Personality Assessment Inventory to Plaintiff. However, as Plaintiff pointed out, and Defendant did not dispute, Walker’s conclusion from the Personality Assessment Inventory that Plaintiff engaged in “negative impression management” is not supported by the assessment itself. Nor did Walker provide any other support for this conclusion. As a result, the Court excluded this opinion.
The Court permitted Walker to testify about the results from the Trauma Symptom Inventory — Second Edition that she administered to Plaintiff. The fact that Walker included in her report that Plaintiff’s responses to this assessment were atypical but did not include the same statement about Defendant in her report about him, despite the parties receiving the same exact results on this metric, did not render this part of her opinion unreliable.
The Court held that Walker may testify about the results of the Battered Woman Syndrome Questionnaire she administered to Plaintiff, including her opinion that Plaintiff does not have battered woman syndrome, but Walker may not testify that Plaintiff is not, in fact, a battered woman based on the questionnaire. Walker was also permitted to provide her opinion that Plaintiff has borderline personality disorder. However, Walker may not testify about Plaintiff’s credibility or whether Plaintiff was sexually assaulted and battered by Defendant.
Walker’s “Addendum” to Her Forensic Psychological Report on Defendant
Walker’s “addendum” to her forensic psychological report on Defendant was disclosed to Plaintiff a mere two days before Plaintiff’s motion to exclude Walker’s testimony was due, and approximately six months after the deadline for the disclosure of expert reports had passed.
Defendant asserted that the addendum report was admissible because it fell under Defendant’s Rule 26(e) duty to supplement information upon learning that previously disclosed information is incomplete or incorrect. Defendant asserted that, when Walker was asked at her deposition whether she had identified in her initial report “specifically which social media postings were the ones that were traumatic for him,” she realized that her initial report was, as this Court has also concluded, “materially incomplete,” and “it was at this moment that Walker’s duty to supplement her report arose.”
However, the actual duty to supplement imposed by Rule 26 “arises when the expert subsequently learns of information that was previously unknown or unavailable, and the new information renders the earlier report incomplete or inaccurate.” In this case, information on the impact of Plaintiff’s allegedly defamatory statements on Defendant, all of which were published in 2023, was not “unknown” to Defendant or “unavailable” to Walker before Walker’s June 2024 deposition. The Court thus rejected Defendant’s characterization of the addendum report as a supplemental report under Rule 26, and turned to consider whether the untimely report should be excluded.
Defendant’s only proffered reason for non-compliance is that “Plaintiff’s counsel did not indicate that they would move to preclude Walker’s testimony” for failing to address the connection between Defendant’s damages and the allegedly defamatory statements “until July 2024.” The Court held that there is nothing except oversight by the defense and Defendant provided no explanation or justification for this oversight.
Defendant’s Motion to Exclude Expert Opinion of Nick Barreiro
Defendant filed a motion to exclude the opinion of Nick Barreiro, a certified audio video forensic analyst, and one of Plaintiff’s experts, concerning the August 30 recording. Barreiro used critical listening to analyze the August 30 recording. In doing so, he identified rustling sounds that are referred to as a “pocket rustle,” leading Barreiro to conclude that the phone used to record the August 30 recording did not “remain[ ] out in the open for the duration of the recording,” and that “[t]he rustling sounds it contains are consistent with a recording device that was inside a pocket, or otherwise concealed in fabric, for a significant portion of the recording.”
The Court found Barreiro’s opinion sufficiently reliable for admission. Critical listening, the method through which Barreiro formed his opinion that Defendant’s phone “was inside a pocket, or otherwise concealed in fabric, for a significant portion of the recording,” has been recognized by the FBI “as an essential component of forensic audio analysis,” and has been accepted by federal courts as a reliable method for conducting forensic audio analysis. Moreover, Barreiro is qualified to provide this opinion.
Defendant’s contention that “Barreiro’s experience and training is too general” and does not extend to “analyzing audio to determine the nature of pocket rustle, whether an audio device is concealed, or what it is concealed by” is belied by Barreiro’s deposition testimony. Barreiro testified that he has determined “many times” whether an audio recording was made on a device that was concealed. The Court determined that Barreiro’s report and deposition testimony did not provide any indication that his opinion was improperly influenced by his background.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude Dr. Lenore Walker’s expert testimony.
The Court denied the Defendant’s motion to exclude Nick Barreiro’s expert testimony.
Key Takeaway:
Experts are not free to continually bolster, strengthen, or improve their reports by endlessly researching the issues they already opined upon, or to continually supplement their opinions. Yet, these impermissible aims are exactly what Defendant submits Walker’s addendum report to achieve: Walker’s initial report failed to connect any of Defendant’s psychological damage to the allegedly defamatory statements, so she wrote the addendum report to address this failure, introducing brand new, previously undisclosed opinions.
This is a pro se prisoner action brought by Plaintiff William A. White relating to White’s detention at the John E. Polk Correctional Facility, in Sanford, Florida, between May and December 2014. Plaintiff’s claims arise out of his placement in the isolation unit due to information received from the U.S. Marshals that White was a neo-Nazi with white supremacist views creating safety and security concerns.
Dr. Richard M. Samuels has provided a forty-page report (including appendices) titled Independent Psychological Evaluation, opining as to the effects of Defendants’ alleged misconduct on Plaintiff’s psychological health.
Defendants filed a Daubert motion to exclude opinions offered by Plaintiff’s psychological expert, Samuels.
Psychology Expert Witness
Dr. Richard M. Samuels has conducted 2300 psychological evaluations till date. He is licensed in Arizona and New Jersey and is a Member of the Arizona Supreme Court Competent Professional Mental Health Provider Panel, Maricopa County. He has been court-appointed in most Arizona, New York, and New Jersey counties.
Basically, Defendants contended that Samuels’ report “contains certain opinions of a medical nature [that Samuels] does not appear qualified to offer” and that Samuels provided “certain inflammatory opinions about historical references to interrogation techniques,” which are irrelevant. Defendants further maintained that the opinions offered by Samuels are unreliable because they are based on only a portion of the evidence and on Plaintiff’s self-serving statements.
Additionally, Defendants argued that the report is not sworn or verified and is inadmissible hearsay, and they noted that other courts have questioned the opinions of Samuels.
Analysis
Given his extensive credentials in the field of psychology, the Court held that Samuels is qualified to testify as an expert regarding his psychological evaluation of Plaintiff. Moreover, Samuels persuasively outlined his methodology in the report, and any alleged flaws in the methodology can be addressed through cross-examination.
The opinions offered by Samuels are also likely to assist the factfinder because they provide psychological insights into how Defendants’ alleged misconduct could have harmed Plaintiff.
Plaintiff represented to the Court that Samuels will not testify to matters outside his report or to “the legal standards of ‘physical injury’ or ‘greater than de minimis‘” harm. Additionally, the Court noted that Samuels may not present any legal conclusions at trial.
Held
The Court denied the Defendants’ Daubert motion to exclude the testimony of Richard Samuels.
Key Takeaway:
Because Samuels is not merely transmitting hearsay, is qualified to provide psychological opinions, has used a sufficiently reliable methodology, and is likely to assist the factfinder as to Plaintiff’s purported damages, the Court held that his opinions are not due to be excluded under Daubert.
