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Case 1:15-cv-07433-LAP Document 1331-7 Filed 01/05/24 Page 13 of 21 (Epstein Depo.). The amount of that payment, the reasons for the settlement, the nature of the claims, and the release of claims for emotional distress and other damages that mirror the alleged damages sought by Plaintiff in this matter are relevant to apportionment of any cause of Plaintiff's claimed injuries. See Bikowicz v. Sterling Drug, Inc., 161 A.D.2d 982, 985, 557 N.Y.S.2d 551 (1990) (an adverse inference in favor of the defendant should have been given based on a settling joint-tortfeasors invocation of the Fifth Amendment because it was relevant to apportionment of fault and damages). If any adverse inference instruction is proper it should be an instruction that the jury should assume that Mr. Epstein’s refusal to answer questions concerning his conduct toward Plaintiff should be constituted as an admission that Mr. Epstein engaged in that conduct on his own, and without the participation or knowledge of Ms. Maxwell. Plaintiff previously sued Mr. Epstein for these actions. In that action, Plaintiff claimed damages for: Past and future phsyical injury, pain and suffering, emotional distress, pyscological and/or psychiatric trauma, mental anguish, humiliation, confusion, embarrassment, loss of educational opportunity, loss of self-esteen, loss of dignity, invasion of privacy, separation from her family; medical and psychological expenses; loss of income, loss of capacity to earn income, and loss of the capacity to enjoy life. The jury should assume that Plaintiff valued her damages at $500,000 for these alleged injuries, and has received payment for her injuries from Mr. Epstein. The designated testimony of Mr. Epstein is also fatally flawed in that it lacks any evidentiary foundation, which is impermissible when testimony of invocation is presented to a jury. Courts addressing the issue of permitting an adverse inference against a party based on the party’s own invocation of their Fifth Amendment rights still permit that inference only if “independent evidence exists of the fact to which the party refuses to answer.” Doe ex rel. Rudy- Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000); see also LaSalle Bank Lake View v. 11