Psychology Expert’s Testimony on Emotional Damages Excluded
Posted on September 5, 2025 by Expert Witness Profiler
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.
Forensic Analysis Expert Witness
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.
Discussion by the Court
Plaintiff’s Motion to Exclude 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.
Case Details:
| Case Caption: | Minskoff V. Mendoza |
| Docket Number: | 1:23cv584 |
| Court Name: | United States District Court, New York Eastern |
| Order Date: | September 1, 2025 |
