M.K. v. The City of New York et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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M.K., a minor, by and through her mother,
Sharmil Surujnath,
Plaintiff,
-against-
VIDALINA LOPEZ, individually and in her
official capacity, ARLENE MARSH,
individually and in her official capacity, and
JESSICA SIRAKOWSKI, individually and in
her official capacity,
Defendants.
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MEMORANDUM DECISION AND
ORDER
23-cv-6579 (BMC)
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COGAN, District Judge.
This case is before the Court on defendants’ Daubert motion to preclude plaintiff’s
expert, Dr. Michael Fraser, from testifying. As is usually the case, plaintiff’s expert provided a
report that is broader than his intended testimony. Unusual, however, is that Dr. Fraser provided
a supplemental declaration in response to defendants’ Daubert motion, which defendants have
moved to strike. For the reasons below, defendants’ motion to strike is granted in part and
denied in part, and defendants’ Daubert motion is granted in part and denied in part.
I. 	Motion to Strike
Defendants contend that Dr. Fraser’s supplemental declaration violates Fed. R. Civ. P.
26(e) and should be stricken. See Lidle v. Cirrus Design Corp., No. 08-cv-1253, 2009 WL
4907201, at *5 (S.D.N.Y. Dec. 18, 2009) (“Rule 26(e) is not . . . a vehicle to permit a party to
serve a deficient opening report and then remedy the deficiency through the expedient of a
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‘supplemental’ report.”). Plaintiff counters that the declaration “offers no new opinions [and]
merely refers to specific portions of his [initial report] and clarifies them.”
As a threshold matter, the question is not whether Dr. Fraser’s supplemental declaration
(or initial report) is admissible as evidence. “The purpose of an expert report [is] ‘to provide the
opposing party with the scope of the opinion that will be provided at trial [and] to allow for an
effective cross examination of the witness[.]’” Scott v. City of N.Y., 591 F. Supp. 2d 554, 561
(S.D.N.Y. 2008) (quoting Ordon v. Karpie, 223 F.R.D. 33, 36 (D. Conn. 2004)). So, the Court
construes defendants’ motion to “strike” Dr. Fraser’s supplemental declaration as a motion to
preclude him from testifying to the statements therein.
Defendants’ first issue with the supplemental declaration relates to Dr. Fraser “separating
[plaintiff’s] alleged damages from the [1/31/23] search from the other [searches] by reclassifying
the [other] searches as “stressors,” [and] the [1/31/23 search] as the ‘harming or inciting
incident[.]’” At the pretrial conference, the Court stated that Dr. Fraser “is going to have to
separate out some way the [1/31/23] search, and he is going to have to tie [plaintiff’s physical
and emotional condition] to that [1/31/23] search.” That is precisely what Dr. Fraser has done,
and the Court is not going to preclude his testimony to that effect.
Defendants’ next issue is that, in the supplemental declaration, Dr. Fraser “officially, and
specifically, diagnose[d plaintiff] with PTSD even though his original report only alleged she
suffered ‘symptoms of PTSD.’” Defendants are wrong. In his supplemental declaration, Dr.
Fraser merely explained why he did not use the word “diagnose” before, despite his initial report
being “the equivalent of a diagnosis of PTSD.” This does not amount to “introducing brand new,
previously undisclosed opinions.” See Minskoff v. Mendoza, 797 F. Supp. 3d 238, 257
(E.D.N.Y. 2025).
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Defendants’ last issue relates to Dr. Fraser’s explanation “that his diagnosis of PTSD was
not based on [the DSM-5], but was instead based on [the] World Health Organization’s
International Classification of Diseases [(“ICD”),] when [that] was never once mentioned in his
[initial] report.” Defendants misread both Dr. Fraser’s initial report and the supplemental
declaration. The initial report described the administration of the PCL-5, “a commonly used 20-
item self-report questionnaire that is based on DSM-5 criteria for PTSD.” In other words, the
initial report says that his opinion was made in accordance with the DSM-5, not contrary to it.
However, Dr. Fraser went too far in the supplemental declaration by concluding that
“[plaintiff’s] experience [also] constitute[s] exposure to ‘an extremely threatening event’ under
the wording of the ICD[.]” That is a “brand new, previously undisclosed opinion[,]” see id., and
Dr. Fraser may not testify about the ICD at trial.
II. 	Daubert Motion
Under Fed. R. Evid. 702, the proponent of expert testimony must establish by a
preponderance of the evidence that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is the product of
reliable principles and methods; and (d) the expert’s opinion reflects a reliable
application of the principles and methods to the facts of the case.
Fed. R. Evid. 702. In other words, “the Court must determine: (1) whether the witness is a
qualified expert; (2) whether the opinion is based on application of reliable data and
methodology to the facts of the case; and (3) whether the expert’s testimony will assist the trier
of fact to understand the evidence or determine an issue of fact.” Boateng v. Bayerische
Motoren Werke Aktiengesellschaft, No. 17-cv-209, 2022 WL 4357555, at *10 (E.D.N.Y. Sept.
20, 2022) (citation omitted).
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Plaintiff has represented that Dr. Fraser’s testimony will be limited to the following
topics:
1. 	His qualifications as a psychologist and related work as described in his report
and his curriculum vitae;
2. 	He was asked by plaintiff’s counsel to assume that plaintiff accurately described
what took place during the 1/31/23 search and its immediate aftermath;
3. 	His evaluation of plaintiff with two tests, the PAI-A and PCL-5, along with the
results and opinions he drew therefrom;
4. 	His opinion that plaintiff meets the criteria for PTSD, and that she continues to
experience symptoms warranting psychological treatment;
5. 	During his clinical review, plaintiff told him that she experienced multiple non-
psychological symptoms after the 1/31/23 search;
6. 	His opinion that it was the 1/31/23 search that harmed plaintiff and caused the
PTSD symptoms that still existed in June 2025;
7. 	His opinion that plaintiff suffered additional stress by being questioned about
whether she was “sure” that she heard Officer Lopez prompt her to lift her shirt;
8. 	His opinion that plaintiff has experienced ongoing anxiety and stress associated
with the Defendants’ failure to admit any wrongdoing;
9. 	His opinion that plaintiff has experienced ongoing anxiety and stress associated
with her legal case;
10. 	His opinions relating to an amicus brief submitted in Safford Unified School
District v. Redding, 557 U.S. 364 (2009); and
11. 	His opinion that the searches prior to the 1/31/23 search were stressors, and did
not cause the same emotional injury, but may have affected the severity of the
emotional distress caused by the 1/31/23 search.
Defendants do not take issue with points (1) and (2), and their remaining objections are
on grounds of relevance, for points (7), (8), (9), and (10); and reliability, for points (3), (4), (5),
(6), and (11).
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A. 	Relevance
“In determining the relevance of expert testimony, the Court must determine ‘whether it
has any tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.’” Minskoff,
797 F. Supp. 3d at 257 (quoting Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265
(2d Cir. 2002)).
Points (7), (8), and (9) all relate to potential causes of emotional injuries that occurred in
the aftermath of January 31, 2023 search. As the Court made clear at the pretrial conference:
“The aftermath [is] irrelevant, because what [matters] is the [January 31, 2023] search.”
Accordingly, Dr. Fraser will be precluded from testifying about points (7), (8), and (9).
Point (10) relates to a Supreme Court amicus brief that plaintiff contends reflects a
“consensus opinion . . . reflecting commentary about the likely impact of strip searches in
schools on adolescents,” and that Dr. Fraser should testify about it because it is “consistent with
his experiences [and] consistent with [plaintiff’s] condition and symptoms.”
The “likely impact of strip searches in schools on adolescents” says nothing about the
actual impact of the alleged strip search on plaintiff. But even assuming otherwise, the Court
would exclude reference to the amicus brief under Rule 403 because it has little probative value
and is unduly prejudicial to defendants. The clear implication is that the jury should find for
plaintiff because the Supreme Court ruled in a “similar” plaintiff’s favor. This case must be
decided on its own facts and, accordingly, Dr. Fraser will be precluded from testifying about
point (10).
B. 	Reliability
“[E]xclusion of expert testimony is warranted only when the district court finds serious
flaws in reasoning or methodology.” Lickteig v. Cerberus Cap. Mgmt., L.P., 589 F. Supp. 3d
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302, 330 (S.D.N.Y. 2022)) (cleaned up). “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 596 (1993).
Points (3) and (4) concern Dr. Fraser’s proposed testimony relating to PTSD, which
defendants contend is unreliable for two reasons: first, because his test did not conform to the
DSM-5 and, second, because Dr. Fraser never “diagnosed” plaintiff with PTSD.
As to the first issue, as discussed above, Dr. Fraser’s initial report shows that his
evaluation was in fact based on the DSM-5. Even assuming otherwise, however, Dr. Fraser’s
“opinion and testimony [would] not [be deemed] unreliable [just] because he deviated from the
DSM-5’s diagnostic criteria[.]” See Rosario v. City of N.Y., 2021 WL 1930293, at *2 (S.D.N.Y.
May 13, 2021). “Minor flaws in an expert’s analysis . . . can be probed through cross-
examination and generally go to the weight to be accorded to the expert’s testimony rather than
admissibility.” MF Glob. Holdings Ltd. v. PricewaterhouseCoopers LLP, 232 F. Supp. 3d 558,
572 (S.D.N.Y. 2017) (quotations omitted).
As to the second issue, Dr. Fraser’s use or nonuse of the word “diagnose” does not make
his testimony unreliable. Dr. Fraser has explained (and will have to explain to the jury) why he
did not do so in his initial report, and the jury can determine whether that matters as much as
defendants think it does. Accordingly, Dr. Fraser may testify about points (3) and (4).
Point (5) concerns plaintiff’s statement to Dr. Fraser that she suffered non-psychological
injuries from the search: hives, a rash, stomach pains, shortness of breath, and migraines.
Defendants take issue with Dr. Fraser’s testimony being an improper conduit for factual
testimony or credibility-bolstering. See In re M/V MSC Flaminia, No. 12-cv-8892, 2017 WL
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3208598, at *2 (S.D.N.Y. July 28, 2017) (“[E]xperts are not percipient witnesses to facts, and
they cannot offer factual narratives in the form of expert testimony that would displace the role
of the factfinder.”); United States v. Hamlett, No. 19-3069, 2021 WL 5105861, at *1 (2d Cir.
Nov. 3, 2021) (“[E]xpert opinions that constitute evaluations of witness credibility . . . are
inadmissible under Rule 702.”).
As plaintiff concedes, Dr. Fraser accepted what she told him at face value, so his
recitation of these facts and credibility determination would be improper. However, because the
trial will be bifurcated, this is essentially moot. Dr. Fraser will testify only if plaintiff prevails on
liability, at which point these facts may have already been presented to the jury, and the jury
would have likely found plaintiff credible on their own. Accordingly, Dr. Fraser may testify
about point (5) to the extent it concerns facts that he “learn[ed] of [through] and were relevant to
[his] psychological evaluations of plaintiff[.]” See Minskoff, 797 F. Supp. 3d at 253.
Points (6) and (11) relate to Dr. Fraser separating out the emotional harm caused by the
January 31, 2023 search and the searches that occurred beforehand. Defendants do not take issue
with the reliability of Dr. Fraser’s opinion, but rather, contend that it “is impermissible for Dr.
Fraser to have held back part of his opinion, including, specifically, what damages flowed from
only the [January 31, 2023] search.” But as discussed above, Dr. Fraser did not hold anything
back, and he was merely following the Court’s directive. Accordingly, Dr. Fraser may testify
about points (6) and (11).
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CONCLUSION
Defendants’ motion to strike is granted in part and denied in part; defendants’ Daubert
motion is granted in part and denied in part.
SO ORDERED.
Dated: 	Brooklyn, New York 	U.S.D.J.
March 5, 2026
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