Trafficking Victims Protection Act Lawsuit Continues Against Fashion Photographer

In Boyce v. Weber and Little Bear, Inc., 19-cv-3825, 2020 WL 5209526 (S.D.N.Y. Sept. 1, 2020), the court denied defendants’ motion for summary judgment (except in one respect) on plaintiff’s claims under the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1591 et seq.; the New York State Human Rights Law; and the New York City Human Rights Law, as well as its motion (pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)) to exclude the testimony of plaintiff’s expert witness.

In this case, plaintiff’s claims under the various statutes are based on the same primary allegation, namely, that during a 2014 photo shoot, defendant forced plaintiff to touch defendant’s and his own genitals.

As to liability (except as to plaintiff’s aiding-and-abetting claim, addressed below) and the motion to exclude, the the court explained:

Simply put, with one exception, Defendants’ motions hinge on factual disputes that must be decided by a jury. First, with respect to summary judgment, the issues identified by Defendants — namely, whether the photoshoot where the alleged assault took place was an employment or other career-advancing opportunity and whether Weber “recruited” or “enticed” Boyce — are genuine disputes of material fact. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996) (warning that courts should be “especially chary in handing out summary judgment in discrimination cases,” as the intent of the employer is often a central factual issue). And second, with respect to the Daubert motion, most of the issues Defendants raise go to the weight of Dr. Ho’s testimony, not its admissibility, and are properly addressed through cross-examination. See, e.g., Discepolo v. Gorgone, 399 F. Supp. 2d 123, 129 (D. Conn. 2005) (“Defendant’s cross-examination can effectively reveal to the jury inaccuracies, imprecision, or fallacies in [the proposed expert’s] analysis to enable the jury to decide how much of [the proposed expert’s] testimony to credit or not credit and what weight to give it in the context of all the evidence, …”). Beyond that, the proper means to ensure that Dr. Ho does not intrude on the jury’s role as the exclusive judges of Plaintiff’s credibility are limiting instructions and target objections to particular questions or testimony, not wholesale exclusion of her testimony. See Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attack[ ]….”).

However, the court granted defendants’ motion to dismiss plaintiff’s “aiding-and-abetting” claims under the New York State Human Rights Law, agreeing with court decisions finding that “an individual can [not] be held liable for aiding and abetting his own conduct” – “at least where, as here, there is only one individual defendant.”

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