Accely v. Consolidated Edison Company of New York, Inc.

• Court: District Court, S.D. New York
• Decided: April 20, 2023
• Docket: 1:19-cv-05984-DC-SLC
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK wee ew ee ee eee ee □□ eee Rr rere rrr rrr KH HOH XX WELBY ACCELY, : Plaintiff, :

-V- :

CONSOLIDATED EDISON COMPANY : MEMORANDUM DECISION OF NEW YORK, INC.), in its official capacity, ANDY FEEHAN, in his official : 19 Civ. 5984 (DC) (SLC) and individual capacity, DARREN BRINDISLI in his official and individual : capacity, and THERESA KONG, in her official and individual capacity, : Defendants. :

wwe eee □□□ ee ee eR Re RH RK eR eR ee eH HX APPEARANCES: N. KEITH WHITE, Esq. Keith White, PLLC 198A Rogers Avenue Brooklyn, NY 11225 Attorney for Plaintiff JEANINE CONLEY DAVES, Esq. A. Michael Weber, Esq. James F. Horton, Esq. Adriana H. Foreman, Esq. Littler Mendelson, P.C. 900 Third Avenue, 8th Floor New York, NY 10022 -- and -- LYNELLE SLIVINSKI, Esq. Con Edison Law Department 4 Irving Place, 18-200 New York, NY 10003

Attorneys for Defendants Consolidated Edison Co. of New York, Darren Brindisi, and Theresa Kong ROD BIERMANN, Esq. Stewart Epstein, Esq. Offit Kurman, P.A. 590 Madison Avenue, 6th Floor New York, NY 10022 Attorneys for Defendant Andy Feehan

CHIN, Circuit Judge: Ata pretrial conference on April 11, 2023, the Court reserved decision on

the in limine motion filed by Defendants Consolidated Edison Co. of New York ("Con Ed"), Darren Brindisi, and Theresa Kong to preclude testimony by Marc Janoson, Ph.D., relating to Plaintiff Welby Accely's emotional damages. Dkt. 130-2; Dkt. 158 at 12.

Defendant Andy Feehan joins the objection to Dr. Janoson's testimony. Dkt. 156 at 24.

For the reasons set forth below, the motion is GRANTED. I, Background Dr. Jonason is a forensic psychologist in private practice in New York.

Dkt. 130-2. Defendants argue that the proposed evidence fails to address the impact of alleged racial discrimination or retaliation on Accely's mental health. Dkt. 158 at 12-

13. They argue that the report discusses allegations of "ethnically driven" -- rather than racially driven -- discrimination and harassment, and argue that "ethnic" discrimination

is not at issue in this case. Dkt. 156 at 24, 33-34. Therefore, Defendants contend, the

evidence is inadmissible because it is irrelevant and prejudicial. In response, Accely asserts that Dr. Janoson's report is admissible because

it pertains to the cause of Accely's emotional damages. Dkt. 170 at 18-19. He also

argues that the evidence is admissible pursuant to a Daubert analysis. Id. at 19-20; see

also Daubert v. Merrell Down Pharm., Inc., 509 U.S. 579, 592 (1993). II. Analysis The Federal Rules of Evidence allow admission of relevant evidence, provided that its probative value is not outweighed by its prejudicial effect. See Fed. R.

Evid. 401, 403. With respect to expert testimony, Rule 702 provides that expert testimony is admissible if it will "help the trier of fact to understand the evidence or to

determine a fact in issue.” Fed. R. Evid. 702(a). A witness who is "qualified as an expert by knowledge, skill, experience, training, or education" may testify if (1) the testimony is based on sufficient facts and data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the principles and methods to

the case." Id. (b)-(d). In deciding whether to admit the testimony of an expert, the court

evaluates whether the testimony (1) relates to "scientific knowledge," and (2) will “assist

the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592.

As a threshold matter, Dr. Janoson's report is not relevant to Accely's claims of unlawful racial discrimination and retaliation. See Fed. R. Evid. 401. First, as

Defendants note, Dr. Janoson's report refers twice to “ethnically driven" harassment and

does not refer to racial harassment. Dkt. 130-2 at 1,5. Second, and more importantly, the report does not assess the emotional damage that Accely purportedly suffered as a

result of the alleged conduct, but rather summarizes Dr. Janoson's assessments of

Accely's personality, as a forensic psychologist. Dkt. 130-2 at 2-6.

Dr. Janoson was not a treating psychologist and his report does not opine

on the extent or cause of Accely's emotional harm. To the contrary, the report summarizes the methodologies and results of the two personality assessment

techniques that Dr. Janoson used to evaluate Accely: (1) the Minnesota Multiphasic Personality Inventory-2 (the "MMPI-2"), and (2) the Personality Assessment Inventory (the "PAI"). Dkt. 130-2 at 2-5. The MMPI-2 is described as "the most widely used device

for personality measurement in the world,” while the PAT is designed to "yield information related to screening diagnosis, and treatment planning for

psychopathology.” Id. at 4, 5. Though Dr. Janoson's report references Accely's employment history and

allegations of ongoing harassment at Con Ed, it does not purport to draw any connection between the allegedly unlawful conduct and Accely's emotional well-being. Id. at 2, 5-6. Rather, the report begins by describing the methodology of the two

personality assessments and then summarizes the tests' conclusions, which depict Accely as someone who is prone to offense and anger in response to perceived

injustices. Id. at 6. Dr. Janoson reports that Accely "produced a severely disturbed

MMPI-? profile" and that people within this category are "acutely sensitive to perceived unfair (especially punitive) actions." Id. at 6. The report concludes that Accely is "unstable, over-reactive, and subject to confusion in the face of stress" and that he is

"typically less tolerant of other people.” Id. The report would not assist the trier of fact with respect to Accely's claims

because it offers no opinions as to the cause or extent of Accely's emotional injuries but

merely reiterates his allegations. Because Dr. Janoson's evaluation of Accely consisted

only of administering general personality tests, his report is not relevant to an

assessment of the emotional damage Accely purportedly incurred from the Defendants’ allegedly discriminatory and retaliatory conduct. See, e.g., El Ansari v. Graham, No. 17

Civ. 3963, 2019 WL 3526714 at *6-7 (S.D.N.Y. Aug. 2, 2019) (precluding a psychologist's report because it failed to address alternative causes of the plaintiff's alleged emotional

injuries); E.E.O.C. v. Bloomberg L.P., No. 7 Civ. 8383, 2010 WL 3466370 at *17 (S.D.N.Y. Aug. 31, 2010) (precluding a psychologist's report because its methodology was unreliable and it would not assist the trier of fact in evaluating a sex discrimination. claim); Llerando-Phipps v. City of New York, 390 F. Supp. 2d 372, 379 (S.D.N.Y. 2005) (admitting psychologist's testimony and expert report because it expressed an opinion relevant to plaintiff's claim of emotional well-being). If anything, Dr. Janoson's report

would appear to undercut Accely's claim of emotional harm, with its conclusion that Accely is someone prone to anger who is overly sensitive to perceived unfairness.

Accordingly, I find that the probative value of Dr. Janoson's testimony is low and is substantially outweighed by the risk of unfair prejudice, confusion, and delay. I do not need to reach Accely's Daubert argument. For the foregoing reasons, Defendants’ motion to preclude the testimony and expert report of Dr. Janoson is GRANTED. Dr. Janoson will not be permitted to testify.

SO ORDERED. Dated: New York, New York ey April 20, 2023 cof D, web eee \ IE PAL - oe canee arene DENNY CHIN United States Circuit Judge Sitting by Designation