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FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM INDEX NO. E2020001864
NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3760424
Book Page CIVIL
Return To: No. Pages: 12
RICHARD PATRICK WEISBECK
Instrument: AFFIRMATION IN OPPOSITION
Control #: 202402271902
Index #: E2020001864
Date: 02/27/2024
DOE, LG 55 Time: 5:38:43 PM
GRASSO, JOSEPH A.
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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STATE OF NEW YORK
SUPREME COURT : COUNTY OF MONROE
________________________________________
AFFIRMATION IN OPPOSITION
LG 55 DOE,
Index No. E2020001864
Plaintiff,
vs.
Hon. Charles A. Schiano, Jr. , J.S.C.
JOSEPH A. GRASSO, Justice Assigned
Defendant. Oral Argument Requested
________________________________________
Richard P. Weisbeck, Jr., Esq., affirms under the penalties of perjury that:
1.) I am an attorney at law duly licensed in the State of New York and a member of the
firm of Lipsitz Green Scime Cambria, LLP attorneys for the plaintiff herein. As such, I am fully
familiar with the facts, circumstances, pleadings and proceedings of this matter.
2.) I make this Affirmation in Opposition to the motions in limine seeking to preclude
Plaintiff from introducing the following into evidence at the trial of this matter: (I) testimony from
Dr. Warren D. Keller and Eve Andersen-Buescher regarding their opinions on Plaintiff-victim LG
55 Doe’s employability; (II) the expert testimony of Dr. Ronald R. Reiber; and (III) “prejudicial
terminology.”
I. Dr. Keller and Ms. Andersen-Buescher may provide opinions about Plaintiff’s
employability
3.) Defendant’s motion in limine relating to Dr. Keller and Ms. Andersen-Buescher is
improper because Plaintiff will lay the appropriate foundation related for the opinions of each
witness, respectively, at the time of trial. With the proper foundation, their respective opinions
relating to Plaintiff-victim LG 55 Doe’s employability are plainly admissible.
a. Dr. Keller’s testimony about Plaintiff’s employability is proper expert
testimony
4.) In relevant part, CPLR 3101(d)(1)(i) provides:
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Upon request, each party shall identify each person
whom the party expects to call as an expert witness
at trial and shall disclose in reasonable detail the
subject matter on which each expert is expected to
testify, the substance of the facts and opinions on
which each expert is expected to testify, the
qualifications of each expert witness and a summary
of the grounds for each expert’s opinion.
5.) Defendant argues Plaintiff has not provided information about Dr. Keller that
would “indicate” that he has “any training, knowledge, education, or experience, to be able to
opine as to Plaintiff’s past, present or future vocational potential.” Affirmation of Michael R.
Wolford, Esq., dated February 22, 2024, Doc. No. 207, (“Wolford Aff’m”), at ¶ 4.
6.) Defendant further claims that neither the treating health care provider or the
retained psychologist sets forth an explanation as to “what injury or injuries is impacting Plaintiff’s
ability to work, or how such an injury or injuries has impacted Plaintiff’s ability to work” (Wolford
Aff’m, ¶¶ 6, 11). The short answer to that unfounded statement is there is no explanation required
in expert witness disclosure nor is it necessary in the medical records. It is clear that the mental,
psychological, and emotional injuries that have impacted the Plaintiff-victim as a result of the
sexual assault by Defendant is causing the inability to work.
7.) In fact, Plaintiff’s expert disclosure included the CV of Dr. Keller which reflects
not only his bachelor, masters, and doctorate degrees in the field of psychology, but his decades
of experience as a treating psychologist and his decades of experience in publishing and presenting
in the field of psychology. Attached and made exhibit hereto as Exhibit A, Plaintiff’s Expert
Witness Disclosure of Warren D. Keller, Ph.D.)
8.) That experience includes over 30 years as the founder of East Amherst Psychology
Group, where he is “specializing in the evaluation and treatment of children, adolescents, and
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adults.” Id. at P. 10. That practice ”has included psychological evaluation [and] treatment of
emotional and behavioral disorders.” Id. Dr. Keller’s “[a]reas of specialization” include
neuropsychology, ADHD, and related disorders. Id.
9.) Dr. Keller has been involved in dozens of publications and presentations worldwide
relating to psychological issues for decades. Id. at P. 12-16. He has served multiple terms as the
Present of the Psychological Association of Western New York, and has been the Chair of the
Ethics Committee of that board for nearly 30 years. Id. at P. 17. He is a member of many local,
state, national, and international psychology associations, has many certifications, and has won
many awards. Id. at P. 16-17.
10.) Notably, Defendant fails to reference Dr. Keller’s profound work history and
involvement in the field of psychology. Clearly, such an education, work history, and academic
history qualifies Dr. Keller to testify on “the general body knowledge in the field of mental health
care and psychology,” “the impact of the abuse by Defendant Joseph A. Grasso on Plaintiff’s
psychological and mental health,” and the “employability, and future therapy, treatment,
medication and/or activities recommended to Plaintiff regarding his injuries.” Id. at ¶ 2.
11.) Plaintiff’s expert disclosure relating to Dr. Keller includes extensive discussion of
the myriad impacts of childhood sexual abuse upon a victim, particularly the impact of sexual
abuse perpetrated by clergy, including but not limited to the reality that “[a]s a result of his injuries,
it is more likely than not that Plaintiff cannot maintain full-time employment.” Id. at ¶¶ 2-3.
12.) As defined by the Cleveland Clinic, a psychologist “has an advanced degree in the
Science of Human Behavior.” See Exhibit B, “Psychologist” published by Cleveland Clinic,
attached and made an exhibit hereto. Among the various mental and behavioral health conditions
a psychologist can assist patients with is “Issues with work or school performance.” Id.
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13.) Defendant seems to be taking the position that a psychologist is incapable of
providing testimony relating to an individual’s ability to work. This clearly is at odds with the
field (and purpose) of psychology, and is inconsistent with New York case law.
14.) In Godfrey v. G.E. Capital Auto Lease, Inc., for example, an expert
neuropsychologist testified that the plaintiff “could not be expected to hold a job because an
employer could not rely on her to show up or be able to function if she did.” 89 A.D.3d 471, 475
(1st Dep’t 2011). The court accepted the testimony of the neuropsychologist (and an expert
economist) as the basis of an award for lost earnings. Id. at 477. Defendant identifies no case law
standing for the proposition that a psychologist would somehow be categorically prohibited from
opining upon whether an individual is capable of performing particular tasks, including the ability
to maintain employment.
15.) Defendant argues that there is not “any explanation given in Dr. Keller’s Expert
Disclosure as to what injury or injuries is impacting Plaintiff’s ability to work, or how such an
injury or injuries is impacting Plaintiff’s past, present, or future vocational potential. See Wolford
Aff’m, at ¶ 6. The reality is just the opposite.
16.) The disclosure of Dr. Keller includes dozens of injuries what Plaintiff has suffered
as a result of Defendant’s abuse (see Exhibit A, ¶ 3(k) and ¶ 3(r), for example) and detailed
explanation of how the nature and impact of this symptomatology (including Post-Traumatic
Stress Disorder, Major Depressive Disorder, Generalized Anxiety Disorder, Dependent
Personality Disorder, and Substance Use Disorder).
17.) As the disclosure explains, Dr. Keller will testify that “[a]s a result of his injuries,
Plaintiff is significantly restricted in his ability to fully enjoy the daily activities of his life and has
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failed to meet his potential personally, vocationally, and emotionally, and it is likely these
limitations will continue into the future.” Id. at 3(s).
18.) Thus, the disclosure of Dr. Keller reflects that he will provide ample basis for his
opinion that “[a]s a result of hist injuries, it is more likely than not that Plaintiff cannot maintain
full-time employment, and is relegated to at most, sporadic part-time employment.” Id. at 3(t).
19.) Plaintiff has set forth in paragraph 4 of Dr. Keller’s expert disclosure that, in
addition to the foregoing, the grounds for his opinions include “the general body of knowledge in
the field of mental health care and psychology,” “scientific research pertaining to the areas
identified herein,” “observations of Plaintiff,” “clinical interview of Plaintiff,” the administration
of personality assessments of Plaintiff, Plaintiff’s results, scientific research of psychological
testing, and review of the discovery materials in this action.
20.) The Fourth Department, in interpreting and applying CPLR 3101(d)(1)(i), has held
that a party intending to call an expert witness has no obligation “to provide the fundamental
factual information upon which an expert’s opinion were made.” Krygier v. Airweld, Inc., 176
A.D.2d 700 (4th Dep’t 1991). “Indeed” the court held, “a party’s request for the facts and opinions
upon which another party’s expert is expected to testify is improper. The requesting party is
entitled only to the substance of those facts and opinions.” 176 A.D.2d at 701 (emphasis supplied)
(citation omitted); accord Ferris v. Marchese, 284 A.D.2d 998, 999 (4th Dep’t 2001); Nedell v. St.
George’s Golf and Country Club, Inc., 203 A.D.2d 121, 122 (2d Dep’t 1994).
21.) Thus, as the Appellate Division held in Foley v. American Independent Paper Mills
Supply Co., Inc., 228 A.D.2d 401 (2d Dep’t 1995), a party is under no obligation to “reveal the
facts upon which her experts are expected to testify.” See also Barrowman v. Niagara Mohawk
Power Corp., 252 A.D.2d 946, 946-947 (4th Dep’t 1998), lv. denied, 92 N.Y.2d 817 (1998)
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(because plaintiff was obligated to disclose only a summary of the grounds for his expert’s opinion,
defendant was not entitled to obtain “the records and documents relied upon by the” expert).
22.) Applying the same principles, the court in Mary Imogene Bassett Hosp. v. Cannon
Design, Inc., 97 A.D.3d 1030 (3d Dep’t 2012), held that a litigant need not disclose “the specific
facts and upon which [its expert] is expected to testify, but rather only the substance of those facts
and opinions.” Id. at 1032.
23.) The fact that the Plaintiff-victim has attempted to work or worked periodically is
simply an argument to be made to the jury or an argument to be advanced through cross-
examination. It clearly does not provide a basis to preclude the testimony of the treating health
care provider and/or the retained psychologist.
24.) Plaintiff’s expert disclosure fully satisfied the requirements of CPLR 3101(d)(1)(i)
and the governing case law.
b. Ms. Andersen-Buescher’s testimony relating to Plaintiff’s employability is
the proper domain of a treating provider.
25.) Defendant claims that Eve Andersen-Buescher, a psychiatric Nurse Practitioner,
and one of Plaintiff’s treating medical providers, should be limited in her testimony. Defendant
argues that any testimony from Ms. Andersen-Buescher relating to Plaintiff’s employability should
be precluded.
26.) It is well-established under New York law that “[t]he jury [is] entitled to credit the
testimony of the plaintiff’s treating physician [] regarding the plaintiff’s physical condition
concerning future lost earnings.” Balsam v. City of New York, 298 A.D.2d 479, 480, 748 N.Y.S.2d
779, 780 (2d Dep’t 2002); see also Campbell v. City of Elmira, 198 A.D.2d 736, 738 (3d Dep’t
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1993), aff'd 84 N.Y.2d 505 (1994); Placakis v. City of New York, 289 A.D.2d 551, 553 (2d Dep’t
2001).
27.) Additionally, “[a] treating physician is permitted to testify at trial regarding
causation, notwithstanding the failure to provide notice pursuant to CPLR 3101(d)(1).” Duman v.
Scharf, 186 A.D.3d 672 (2d Dep’t 2020). Indeed, “a plaintiff’s treating physician could testify to
the cause of the injuries even if he or she had expressed no opinion regarding causation in his or
her previously exchanged medical report.” Id. (citing Kowalsky v. County of Suffolk, 139 A.D.3d
903 (2d Dep’t 2016)).
28.) As with Dr. Keller, Defendant claims that Ms. Andersen-Buescher’s biograph is
lacking “anything” that “could” “indicate that she has any training, knowledge, education, or
experience, to be able to opine as to Plaintiff’s past, present, or future vocational potential.”
29.) As explained by the American Psychiatric Association, “psychiatry is the branch of
medicine focused on the diagnosis, treatment and prevention of mental, emotional and behavioral
disorders.” See Exhibit C, “What is Psychiatry” by the American Psychiatric Association,
attached and made an exhibit hereto.
30.) Plainly, Ms. Andersen-Buescher’s education, training, and experience as a
psychiatric Nurse Practitioner provides her a sufficient basis from which to provide opinion and
insight as to Plaintiff’s ability to perform life functions, such as maintaining employment.
31.) Despite Defendant’s representations otherwise, the factual record in this litigation
includes medical records that evidence the manifestations of Plaintiff’s injuries caused by
Defendant and the impacts those injuries have had on Plaintiff’s ability to maintain employment.
See, e.g., Exhibit D, a September 16, 2020 record from University of Rochester Medical Center
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reflecting that Plaintiff has been “chronically unemployed for the last ten years due to PTSD,
addictions, and other medical, BH, MH issues.”
32.) The fact that the Plaintiff-victim has attempted to work or worked periodically is
simply an argument to be made to the jury or an argument to be advanced through cross-
examination. It clearly does not provide a basis to preclude the testimony of the treating health
care provider and/or the retained psychologist.
II. There is no basis to preclude Dr. Reiber’s testimony.
33.) The singular basis for Defendant’s motion in limine relating to Dr. Reiber is
Defendant’s claim that the record is devoid of proper foundation for Dr. Reiber’s opinions.
34.) Defendant’s argument is predicated upon his argument that the testimony of Dr.
Keller and Ms. Andersen-Buescher relating to Plaintiff’s employability must be precluded. As
explained supra, there is no basis to preclude such testimony from either witness.
35.) Plaintiff fully expects to lay the appropriate foundation for the opinions of Dr.
Keller and Ms. Andersen-Buescher relating to Plaintiff’s employability and, in turn, for those
opinions to be presented to the jury.
36.) Dr. Reiber will rely on that testimony in presenting certain of the opinions reflected
in the expert disclosure of Dr. Reiber.
37.) Plaintiff does not disagree that loss of earnings must be established with
“reasonable certainty.” The testimony from Dr. Keller and Ms. Andersen-Buescher relating to
Plaintiff’s employability will be provided with a reasonable degree of medical certainty.
38.) Defendant argues that the use of the phrase “more likely than not,” concerning the
opinions of Plaintiff’s health care provider (Ms. Andersen-Buescher) and/or psychologist (Dr.
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Keller) concerning their opinion that the Plaintiff-victim LG 55 Doe is disabled from employment
claiming, without citation to any authority, it is speculative. See Wolford Aff’m, at ¶15).
39.) The phrase “more likely than not” is simply the legal definition of reasonable
degree of certainty used by medical, scientific, and other experts. For example, Black’s Law
Dictionary defines “reasonable degree of medical certainty” as “a standard requirement as showing
that the injury was more likely than not caused by a particular stimulus, based on the general
consensus of recognized medical thought.” (Black’s Law Dictionary (10th Ed) (Westlaw, 2014).
40.) New York law is clear: “to establish a fact by a preponderance of the evidence
means to prove that the fact is more likely than not to have occurred.” In re Beautisha B., 115
A.D.3d 854, 854 (2d Dep’t 2014) (emphasis added); see People v. Piasta, 207 A.D.3d 1054, 1059
(4th Dep’t 2022).
III. The effort by Defendant to restrict Plaintiff in his opening statement, closing
statement, or other statements during the course of the trial should be denied.
41.) This case involves the Plaintiff—while he was a child—being sexually assaulted
and molested by Defendant. The child was a victim of a crime. Adults who molest children and
sexually assault children are frequently described in common terms as “child molesters” and/or
“pedophiles” and/or “predators.” Attached hereto, made part hereof, and designated as Exhibit E
is a copy of various publications concerning the same.
42.) The Plaintiff-victim has testified that he was sexually molested and sexually
assaulted by Defendant. Plaintiff will testify at trial that as a child he was the victim of molestation
and sexual assault by Defendant. This testimony constitutes prima facie evidence of those acts.
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43.) The argument that in a case involving an adult molesting and sexually assaulting a
child that it is too prejudicial to call the perpetrator of those acts a “child molester,” a “pedophile,”
or a “predator” simply is meritless.
44.) It would be similar to a case involving an intoxicated driver in a motor vehicle
negligence action arguing that it is too prejudicial to call the Defendant “a drunk driver”.
45.) This argument by Defendant is simply an effort to sanitize the horrors of the sexual
assaults committed by him upon the Plaintiff-victim LG 55 Doe.
46.) Defendant cites a pretrial Order concerning a motion by a party to strike the
pleadings pursuant to CPLR § 3024(b) and cites the gratuitous comment in the decision that the
statement would not be admissible at trial. The Court asserted no authority for the gratuitous
comment. Recently, the Appellate Division, under similar circumstances concerning striking a
pleading in a CVA case, stated that “the Court’s decision to strike the inflammatory language does
not preclude Plaintiff from attempting to prove at the trial statements that Defendant committed
acts of sexual abuse against her” (LG 101 Doe v. Wos, 216 A.D.3d, 1393 (4th Dep’t 2023).
47.) The Court’s prior decision relating to the use of particular language in pleadings
has no bearing on the language that Plaintiff and/or his counsel should be allowed to use during
the trial. Defendant cites to no authority for the argument that a victim of childhood sexual assault
should be barred from being referred to as a victim in the courtroom; nor is any such authority
imaginable. Defendant is baselessly attempting to conflate narrow rulings relating to specific
pleadings with trial admissibility.
VERIFIED and affirmed this 27th day of February, 2024.
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LIPSITZ GREEN SCIME CAMBRIA LLP
By: _/s/ Richard P. Weisbeck, Jr.
Richard P. Weisbeck, Jr., Esq.
Attorneys for Plaintiff
42 Delaware Avenue, Suite 120
Buffalo, New York 14202-3924
(716) 849-1333 Ext. 348
TO: Michael R. Wolford, Esq.
BOND SCHOENECK & KING PLLC
Attorneys for Defendant
350 Linden Oaks, Third Floor
Rochester, New York 14625
T: (585) 362-4719
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FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM INDEX NO. E2020001864 NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3760424 Book Page CIVIL Return To: No. Pages: 12 RICHARD PATRICK WEISBECK Instrument: AFFIRMATION IN OPPOSITION Control #: 202402271902 Index #: E2020001864 Date: 02/27/2024 DOE, LG 55 Time: 5:38:43 PM GRASSO, JOSEPH A. Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 12 202402271902 Index # INDEX : E2020001864 NO. E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 STATE OF NEW YORK SUPREME COURT : COUNTY OF MONROE ________________________________________ AFFIRMATION IN OPPOSITION LG 55 DOE, Index No. E2020001864 Plaintiff, vs. Hon. Charles A. Schiano, Jr. , J.S.C. JOSEPH A. GRASSO, Justice Assigned Defendant. Oral Argument Requested ________________________________________ Richard P. Weisbeck, Jr., Esq., affirms under the penalties of perjury that: 1.) I am an attorney at law duly licensed in the State of New York and a member of the firm of Lipsitz Green Scime Cambria, LLP attorneys for the plaintiff herein. As such, I am fully familiar with the facts, circumstances, pleadings and proceedings of this matter. 2.) I make this Affirmation in Opposition to the motions in limine seeking to preclude Plaintiff from introducing the following into evidence at the trial of this matter: (I) testimony from Dr. Warren D. Keller and Eve Andersen-Buescher regarding their opinions on Plaintiff-victim LG 55 Doe’s employability; (II) the expert testimony of Dr. Ronald R. Reiber; and (III) “prejudicial terminology.” I. Dr. Keller and Ms. Andersen-Buescher may provide opinions about Plaintiff’s employability 3.) Defendant’s motion in limine relating to Dr. Keller and Ms. Andersen-Buescher is improper because Plaintiff will lay the appropriate foundation related for the opinions of each witness, respectively, at the time of trial. With the proper foundation, their respective opinions relating to Plaintiff-victim LG 55 Doe’s employability are plainly admissible. a. Dr. Keller’s testimony about Plaintiff’s employability is proper expert testimony 4.) In relevant part, CPLR 3101(d)(1)(i) provides: 6408654v1 - 067164.0001 2 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion. 5.) Defendant argues Plaintiff has not provided information about Dr. Keller that would “indicate” that he has “any training, knowledge, education, or experience, to be able to opine as to Plaintiff’s past, present or future vocational potential.” Affirmation of Michael R. Wolford, Esq., dated February 22, 2024, Doc. No. 207, (“Wolford Aff’m”), at ¶ 4. 6.) Defendant further claims that neither the treating health care provider or the retained psychologist sets forth an explanation as to “what injury or injuries is impacting Plaintiff’s ability to work, or how such an injury or injuries has impacted Plaintiff’s ability to work” (Wolford Aff’m, ¶¶ 6, 11). The short answer to that unfounded statement is there is no explanation required in expert witness disclosure nor is it necessary in the medical records. It is clear that the mental, psychological, and emotional injuries that have impacted the Plaintiff-victim as a result of the sexual assault by Defendant is causing the inability to work. 7.) In fact, Plaintiff’s expert disclosure included the CV of Dr. Keller which reflects not only his bachelor, masters, and doctorate degrees in the field of psychology, but his decades of experience as a treating psychologist and his decades of experience in publishing and presenting in the field of psychology. Attached and made exhibit hereto as Exhibit A, Plaintiff’s Expert Witness Disclosure of Warren D. Keller, Ph.D.) 8.) That experience includes over 30 years as the founder of East Amherst Psychology Group, where he is “specializing in the evaluation and treatment of children, adolescents, and 6408654v1 - 067164.0001 2 3 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 adults.” Id. at P. 10. That practice ”has included psychological evaluation [and] treatment of emotional and behavioral disorders.” Id. Dr. Keller’s “[a]reas of specialization” include neuropsychology, ADHD, and related disorders. Id. 9.) Dr. Keller has been involved in dozens of publications and presentations worldwide relating to psychological issues for decades. Id. at P. 12-16. He has served multiple terms as the Present of the Psychological Association of Western New York, and has been the Chair of the Ethics Committee of that board for nearly 30 years. Id. at P. 17. He is a member of many local, state, national, and international psychology associations, has many certifications, and has won many awards. Id. at P. 16-17. 10.) Notably, Defendant fails to reference Dr. Keller’s profound work history and involvement in the field of psychology. Clearly, such an education, work history, and academic history qualifies Dr. Keller to testify on “the general body knowledge in the field of mental health care and psychology,” “the impact of the abuse by Defendant Joseph A. Grasso on Plaintiff’s psychological and mental health,” and the “employability, and future therapy, treatment, medication and/or activities recommended to Plaintiff regarding his injuries.” Id. at ¶ 2. 11.) Plaintiff’s expert disclosure relating to Dr. Keller includes extensive discussion of the myriad impacts of childhood sexual abuse upon a victim, particularly the impact of sexual abuse perpetrated by clergy, including but not limited to the reality that “[a]s a result of his injuries, it is more likely than not that Plaintiff cannot maintain full-time employment.” Id. at ¶¶ 2-3. 12.) As defined by the Cleveland Clinic, a psychologist “has an advanced degree in the Science of Human Behavior.” See Exhibit B, “Psychologist” published by Cleveland Clinic, attached and made an exhibit hereto. Among the various mental and behavioral health conditions a psychologist can assist patients with is “Issues with work or school performance.” Id. 6408654v1 - 067164.0001 3 4 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 13.) Defendant seems to be taking the position that a psychologist is incapable of providing testimony relating to an individual’s ability to work. This clearly is at odds with the field (and purpose) of psychology, and is inconsistent with New York case law. 14.) In Godfrey v. G.E. Capital Auto Lease, Inc., for example, an expert neuropsychologist testified that the plaintiff “could not be expected to hold a job because an employer could not rely on her to show up or be able to function if she did.” 89 A.D.3d 471, 475 (1st Dep’t 2011). The court accepted the testimony of the neuropsychologist (and an expert economist) as the basis of an award for lost earnings. Id. at 477. Defendant identifies no case law standing for the proposition that a psychologist would somehow be categorically prohibited from opining upon whether an individual is capable of performing particular tasks, including the ability to maintain employment. 15.) Defendant argues that there is not “any explanation given in Dr. Keller’s Expert Disclosure as to what injury or injuries is impacting Plaintiff’s ability to work, or how such an injury or injuries is impacting Plaintiff’s past, present, or future vocational potential. See Wolford Aff’m, at ¶ 6. The reality is just the opposite. 16.) The disclosure of Dr. Keller includes dozens of injuries what Plaintiff has suffered as a result of Defendant’s abuse (see Exhibit A, ¶ 3(k) and ¶ 3(r), for example) and detailed explanation of how the nature and impact of this symptomatology (including Post-Traumatic Stress Disorder, Major Depressive Disorder, Generalized Anxiety Disorder, Dependent Personality Disorder, and Substance Use Disorder). 17.) As the disclosure explains, Dr. Keller will testify that “[a]s a result of his injuries, Plaintiff is significantly restricted in his ability to fully enjoy the daily activities of his life and has 6408654v1 - 067164.0001 4 5 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 failed to meet his potential personally, vocationally, and emotionally, and it is likely these limitations will continue into the future.” Id. at 3(s). 18.) Thus, the disclosure of Dr. Keller reflects that he will provide ample basis for his opinion that “[a]s a result of hist injuries, it is more likely than not that Plaintiff cannot maintain full-time employment, and is relegated to at most, sporadic part-time employment.” Id. at 3(t). 19.) Plaintiff has set forth in paragraph 4 of Dr. Keller’s expert disclosure that, in addition to the foregoing, the grounds for his opinions include “the general body of knowledge in the field of mental health care and psychology,” “scientific research pertaining to the areas identified herein,” “observations of Plaintiff,” “clinical interview of Plaintiff,” the administration of personality assessments of Plaintiff, Plaintiff’s results, scientific research of psychological testing, and review of the discovery materials in this action. 20.) The Fourth Department, in interpreting and applying CPLR 3101(d)(1)(i), has held that a party intending to call an expert witness has no obligation “to provide the fundamental factual information upon which an expert’s opinion were made.” Krygier v. Airweld, Inc., 176 A.D.2d 700 (4th Dep’t 1991). “Indeed” the court held, “a party’s request for the facts and opinions upon which another party’s expert is expected to testify is improper. The requesting party is entitled only to the substance of those facts and opinions.” 176 A.D.2d at 701 (emphasis supplied) (citation omitted); accord Ferris v. Marchese, 284 A.D.2d 998, 999 (4th Dep’t 2001); Nedell v. St. George’s Golf and Country Club, Inc., 203 A.D.2d 121, 122 (2d Dep’t 1994). 21.) Thus, as the Appellate Division held in Foley v. American Independent Paper Mills Supply Co., Inc., 228 A.D.2d 401 (2d Dep’t 1995), a party is under no obligation to “reveal the facts upon which her experts are expected to testify.” See also Barrowman v. Niagara Mohawk Power Corp., 252 A.D.2d 946, 946-947 (4th Dep’t 1998), lv. denied, 92 N.Y.2d 817 (1998) 6408654v1 - 067164.0001 5 6 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 (because plaintiff was obligated to disclose only a summary of the grounds for his expert’s opinion, defendant was not entitled to obtain “the records and documents relied upon by the” expert). 22.) Applying the same principles, the court in Mary Imogene Bassett Hosp. v. Cannon Design, Inc., 97 A.D.3d 1030 (3d Dep’t 2012), held that a litigant need not disclose “the specific facts and upon which [its expert] is expected to testify, but rather only the substance of those facts and opinions.” Id. at 1032. 23.) The fact that the Plaintiff-victim has attempted to work or worked periodically is simply an argument to be made to the jury or an argument to be advanced through cross- examination. It clearly does not provide a basis to preclude the testimony of the treating health care provider and/or the retained psychologist. 24.) Plaintiff’s expert disclosure fully satisfied the requirements of CPLR 3101(d)(1)(i) and the governing case law. b. Ms. Andersen-Buescher’s testimony relating to Plaintiff’s employability is the proper domain of a treating provider. 25.) Defendant claims that Eve Andersen-Buescher, a psychiatric Nurse Practitioner, and one of Plaintiff’s treating medical providers, should be limited in her testimony. Defendant argues that any testimony from Ms. Andersen-Buescher relating to Plaintiff’s employability should be precluded. 26.) It is well-established under New York law that “[t]he jury [is] entitled to credit the testimony of the plaintiff’s treating physician [] regarding the plaintiff’s physical condition concerning future lost earnings.” Balsam v. City of New York, 298 A.D.2d 479, 480, 748 N.Y.S.2d 779, 780 (2d Dep’t 2002); see also Campbell v. City of Elmira, 198 A.D.2d 736, 738 (3d Dep’t 6408654v1 - 067164.0001 6 7 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 1993), aff'd 84 N.Y.2d 505 (1994); Placakis v. City of New York, 289 A.D.2d 551, 553 (2d Dep’t 2001). 27.) Additionally, “[a] treating physician is permitted to testify at trial regarding causation, notwithstanding the failure to provide notice pursuant to CPLR 3101(d)(1).” Duman v. Scharf, 186 A.D.3d 672 (2d Dep’t 2020). Indeed, “a plaintiff’s treating physician could testify to the cause of the injuries even if he or she had expressed no opinion regarding causation in his or her previously exchanged medical report.” Id. (citing Kowalsky v. County of Suffolk, 139 A.D.3d 903 (2d Dep’t 2016)). 28.) As with Dr. Keller, Defendant claims that Ms. Andersen-Buescher’s biograph is lacking “anything” that “could” “indicate that she has any training, knowledge, education, or experience, to be able to opine as to Plaintiff’s past, present, or future vocational potential.” 29.) As explained by the American Psychiatric Association, “psychiatry is the branch of medicine focused on the diagnosis, treatment and prevention of mental, emotional and behavioral disorders.” See Exhibit C, “What is Psychiatry” by the American Psychiatric Association, attached and made an exhibit hereto. 30.) Plainly, Ms. Andersen-Buescher’s education, training, and experience as a psychiatric Nurse Practitioner provides her a sufficient basis from which to provide opinion and insight as to Plaintiff’s ability to perform life functions, such as maintaining employment. 31.) Despite Defendant’s representations otherwise, the factual record in this litigation includes medical records that evidence the manifestations of Plaintiff’s injuries caused by Defendant and the impacts those injuries have had on Plaintiff’s ability to maintain employment. See, e.g., Exhibit D, a September 16, 2020 record from University of Rochester Medical Center 6408654v1 - 067164.0001 7 8 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 reflecting that Plaintiff has been “chronically unemployed for the last ten years due to PTSD, addictions, and other medical, BH, MH issues.” 32.) The fact that the Plaintiff-victim has attempted to work or worked periodically is simply an argument to be made to the jury or an argument to be advanced through cross- examination. It clearly does not provide a basis to preclude the testimony of the treating health care provider and/or the retained psychologist. II. There is no basis to preclude Dr. Reiber’s testimony. 33.) The singular basis for Defendant’s motion in limine relating to Dr. Reiber is Defendant’s claim that the record is devoid of proper foundation for Dr. Reiber’s opinions. 34.) Defendant’s argument is predicated upon his argument that the testimony of Dr. Keller and Ms. Andersen-Buescher relating to Plaintiff’s employability must be precluded. As explained supra, there is no basis to preclude such testimony from either witness. 35.) Plaintiff fully expects to lay the appropriate foundation for the opinions of Dr. Keller and Ms. Andersen-Buescher relating to Plaintiff’s employability and, in turn, for those opinions to be presented to the jury. 36.) Dr. Reiber will rely on that testimony in presenting certain of the opinions reflected in the expert disclosure of Dr. Reiber. 37.) Plaintiff does not disagree that loss of earnings must be established with “reasonable certainty.” The testimony from Dr. Keller and Ms. Andersen-Buescher relating to Plaintiff’s employability will be provided with a reasonable degree of medical certainty. 38.) Defendant argues that the use of the phrase “more likely than not,” concerning the opinions of Plaintiff’s health care provider (Ms. Andersen-Buescher) and/or psychologist (Dr. 6408654v1 - 067164.0001 8 9 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 Keller) concerning their opinion that the Plaintiff-victim LG 55 Doe is disabled from employment claiming, without citation to any authority, it is speculative. See Wolford Aff’m, at ¶15). 39.) The phrase “more likely than not” is simply the legal definition of reasonable degree of certainty used by medical, scientific, and other experts. For example, Black’s Law Dictionary defines “reasonable degree of medical certainty” as “a standard requirement as showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought.” (Black’s Law Dictionary (10th Ed) (Westlaw, 2014). 40.) New York law is clear: “to establish a fact by a preponderance of the evidence means to prove that the fact is more likely than not to have occurred.” In re Beautisha B., 115 A.D.3d 854, 854 (2d Dep’t 2014) (emphasis added); see People v. Piasta, 207 A.D.3d 1054, 1059 (4th Dep’t 2022). III. The effort by Defendant to restrict Plaintiff in his opening statement, closing statement, or other statements during the course of the trial should be denied. 41.) This case involves the Plaintiff—while he was a child—being sexually assaulted and molested by Defendant. The child was a victim of a crime. Adults who molest children and sexually assault children are frequently described in common terms as “child molesters” and/or “pedophiles” and/or “predators.” Attached hereto, made part hereof, and designated as Exhibit E is a copy of various publications concerning the same. 42.) The Plaintiff-victim has testified that he was sexually molested and sexually assaulted by Defendant. Plaintiff will testify at trial that as a child he was the victim of molestation and sexual assault by Defendant. This testimony constitutes prima facie evidence of those acts. 6408654v1 - 067164.0001 9 10 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 43.) The argument that in a case involving an adult molesting and sexually assaulting a child that it is too prejudicial to call the perpetrator of those acts a “child molester,” a “pedophile,” or a “predator” simply is meritless. 44.) It would be similar to a case involving an intoxicated driver in a motor vehicle negligence action arguing that it is too prejudicial to call the Defendant “a drunk driver”. 45.) This argument by Defendant is simply an effort to sanitize the horrors of the sexual assaults committed by him upon the Plaintiff-victim LG 55 Doe. 46.) Defendant cites a pretrial Order concerning a motion by a party to strike the pleadings pursuant to CPLR § 3024(b) and cites the gratuitous comment in the decision that the statement would not be admissible at trial. The Court asserted no authority for the gratuitous comment. Recently, the Appellate Division, under similar circumstances concerning striking a pleading in a CVA case, stated that “the Court’s decision to strike the inflammatory language does not preclude Plaintiff from attempting to prove at the trial statements that Defendant committed acts of sexual abuse against her” (LG 101 Doe v. Wos, 216 A.D.3d, 1393 (4th Dep’t 2023). 47.) The Court’s prior decision relating to the use of particular language in pleadings has no bearing on the language that Plaintiff and/or his counsel should be allowed to use during the trial. Defendant cites to no authority for the argument that a victim of childhood sexual assault should be barred from being referred to as a victim in the courtroom; nor is any such authority imaginable. Defendant is baselessly attempting to conflate narrow rulings relating to specific pleadings with trial admissibility. VERIFIED and affirmed this 27th day of February, 2024. 6408654v1 - 067164.0001 10 11 of 12 202402271902 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 02/27/2024 05:37 PM NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 02/27/2024 LIPSITZ GREEN SCIME CAMBRIA LLP By: _/s/ Richard P. Weisbeck, Jr. Richard P. Weisbeck, Jr., Esq. Attorneys for Plaintiff 42 Delaware Avenue, Suite 120 Buffalo, New York 14202-3924 (716) 849-1333 Ext. 348 TO: Michael R. Wolford, Esq. BOND SCHOENECK & KING PLLC Attorneys for Defendant 350 Linden Oaks, Third Floor Rochester, New York 14625 T: (585) 362-4719 6408654v1 - 067164.0001 11 12 of 12