2:19-cv-05030
E.D. Pa.Nov 3, 2021Background:
- Plaintiff Lisa Barbounis moved to exclude under Daubert the expert opinion testimony of Dr. Barbara Ziv, a forensic psychiatrist retained by defendants in two related civil actions against The Middle East Forum and individual defendants.
- Dr. Ziv conducted a six-hour clinical evaluation (Sept. 22, 2020), reviewed treatment records, and issued an initial and supplemental report concluding plaintiff does not suffer from Major Depressive Disorder or Generalized Anxiety Disorder and attributing borderline personality disorder to preexisting factors, not her tenure at the Forum.
- Plaintiff produced her own forensic evaluator, Dr. Barry Zakireh, whose opinion was based on a single meeting.
- Defendants oppose exclusion, arguing Dr. Ziv is highly qualified, used accepted forensic-psychiatric methods (clinical interview and record review), and that challenges to her conclusions go to weight not admissibility.
- The court (Judge Wolson) denied Plaintiff’s Daubert motion, permitting Dr. Ziv to testify subject to appropriate bounds (and defendants represent they will not seek general credibility findings).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Expert qualification | Ziv is a partisan rebuttal hire and should be excluded | Ziv is a seasoned forensic psychiatrist with decades of experience and prior court qualifications | Qualified; testimony not excluded on qualification grounds |
| Methodology/reliability (no psych testing) | Opinions unreliable because no objective tests were administered | Clinical interview and records review are standard, reliable forensic methods; testing not always required | Methods permissible; lack of testing goes to weight, not admissibility |
| Testimony about plaintiff's credibility | Ziv improperly opines on plaintiff's general credibility | Assessment of credibility is appropriate when tied to diagnostic evaluation and detection of malingering | General credibility opinions disallowed; credibility relevant to diagnosis may be considered; defendants concede they will not seek general-credibility opinion |
| Exclusion of all testimony | Minor disagreements/mistakes warrant wholesale exclusion | Rejection of expert testimony is the exception; adversary testing/cross-examination should address disagreements | Motion to exclude in its entirety denied; limitations can be addressed at trial |
Key Cases Cited
- Pineda v. Ford Motor Co., 520 F.3d 237 (3d Cir. 2008) (Rule 702 and liberal admissibility standard)
- Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802 (3d Cir. 1997) (expert qualification standard interpreted liberally)
- Schneider ex rel. Estate of Schneider v. Fried, 350 F.3d 396 (3d Cir. 2003) (Rule 702 requires qualification, reliability, and fit)
- In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994) (expert testimony need not be correct, only grounded; reliability tested by adversary process)
- Comcast Cable Commc'ns, LLC v. Sprint Commc'ns Co., LP, 278 F. Supp. 3d 375 (E.D. Pa. 2016) (rejection of expert testimony is the exception)