DOJ-OGR-00006224.pdf

--- Page 1 --- The extracted text is: **Case 1:20-cr-00330-PAE** **Document 424** **Filed 11/08/21** **Page 13 of 41** **(S.D.N.Y. Feb. 14, 2012) (collecting cases); see, e.g., Highland Capital Mgmt. v. Schneider, 551 F. Supp. 2d 173, 182-183, 187 (S.D.N.Y. 2008).** Finally, expert opinion should not be offered where it does not fit the facts of the case. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Daubert, 509 U.S. at 591 (internal quotation marks omitted); cf. Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) ("expert testimony should be excluded if it is ... [inter alia] in essence an 'apples and oranges comparison' (quoting Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 208 (2d Cir.1984))); see also LVL XIII Brands, Inc. v. Louis Vuitton Malletier S.A., 209 F. Supp. 3d 612, 642 (S.D.N.Y. 2016) (expert opinion inadmissible where it is "a mismatch for the facts" of the case). **C. Discussion** 1. Response to the Opinions of Dr. Rocchio Although some opinions by Dr. Dietz respond to Dr. Rocchio, each opinion must itself be reliable and relevant, as required by Rule 702. See Yousef, 327 F.3d at 148. The Government agrees that at least one of these opinions can meet this test: it is "within the range where experts might reasonably differ," Kohomi Tire Co., 526 U.S. at 153, and can be tested through "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." Daubert, 509 U.S. at 596. Specifically, the Government agrees that Dr. Dietz can respond to Dr. Rocchio's testimony about grooming behaviors by suggesting that grooming does not have one settled definition. See 2/25/20 Tr. at 36:13-37:14, United States v. Randall, No. 19 Cr. 131 (PAE) (S.D.N.Y.) (explaining that, in such a case, "the jury, not the trial court, should be the one to decide among conflicting experts"). **9** **DOJ-OGR-00006224**