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Cerbelli v. City of New York

September 27, 2006

LORETTA M. CERBELLI, IN HER INDIVIDUAL CAPACITY AND AS THE ADMINISTRATRIX OF THE ESTATE OF KEVIN E. CERBELLI, DECEASED, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Levy, United States Magistrate Judge

MEMORANDUM AND ORDER

Defendants City of New York, the New York City Police Department, Police Officer James Williams, Police Officer Paul Valdes, Police Officer Robert Ehmer, Sgt. Michael Baretto, and Lt. William McBride (collectively, the "police defendants") move to preclude portions of the reports and testimony of plaintiff's experts Katherine Falk, M.D. and John Pritchard III. For the reasons stated below, the motion is granted in part and denied in part.

BACKGROUND

For purposes of the pending motion, familiarity with the allegations in plaintiff's complaint is assumed. Briefly, however, this case arises out of an incident that occurred on October 25, 1998, during which Kevin Cerbelli, a 30-year-old man with paranoid schizophrenia, was shot and killed by defendant police officers inside the 110th Precinct in Queens, New York. Plaintiff's complaint challenges the policies and practices of the New York City Police Department ("N.Y.P.D.") concerning interactions with emotionally disturbed persons ("EDPs") and, in particular, the N.Y.P.D.'s training, policies, and practices for dealing with dangerous EDPs. In support of her claims, plaintiff has named as experts, inter alia, Dr. Katherine Falk, a psychiatrist, and John Pritchard III, a law enforcement specialist. This court conducted Daubert hearings on March 7, 2006 and June 1, 2006, at which these experts testified.

DISCUSSION

Rule 702 of the Federal Rules of Evidence provides that: if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the Supreme Court stated that, before admitting evidence under Rule 702, the trial judge is required to ensure that the scientific testimony or evidence is both reliable and relevant. Id. at 589. The court must assess whether the expert's opinion is grounded in "methods and procedures of science," whether it consists of more than simply "subjective belief or unsupported speculation" (id. at 589) and "whether the reasoning or methodology underlying the testimony is scientifically valid and . . . properly can be applied to the facts in issue." Id. at 592-93. In making this determination, the court may consider the following (nonexclusive) factors: (1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review or publication; (3) the known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and (4) general acceptance in the scientific community. Id. at 591-93. Other factors courts tend to take into account include: (a) the existence of standards controlling the technique's operation, (b) the relationship of the technique to methods that have been established to be reliable, (c) the qualifications of the expert witness, and (d) the non-judicial uses to which the method has been put. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994); Finley v. NCR Corp., 964 F. Supp. 882, 885 (D.N.J. 1996). Finally, the court must determine "whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have devolved their opinions expressly for purposes of testifying." Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). The proponent of the expert's testimony bears the burden of establishing its admissibility by a preponderance of the evidence. Daubert, 509 U.S. at 593 n.10.

The Second Circuit has adopted a flexible interpretation of Daubert. In Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995), the court explained that: by loosening the strictures on scientific evidence set by Frye, Daubert reinforces the idea that there should be a presumption of admissibility of evidence. Second, it emphasizes the need for flexibility in assessing whether evidence is admissible. Rather than using rigid "safeguards" for determining whether testimony should be admitted, the Court's approach is to permit the trial judge to weigh the various considerations pertinent to the issue in question. Third, Daubert allows for the admissibility of scientific evidence, even if not generally accepted in the relevant scientific community, provided its reliability has independent support. Finally, the Court has expressed its faith in the power of the adversary system to test "shaky but admissible" evidence and advanced a bias in favor of admitting evidence short of that solidly and indisputably proven to be reliable.*fn1

Moreover, in Kumho Tire v. Carmichael, 526 U.S. 137, 150 (1999), the Supreme Court emphasized that courts have "broad latitude" in deciding whether and how to apply the Daubert factors and that "the relevant reliability concerns may focus upon personal knowledge or experience." In fact, "[i]n certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony." FED. R. EVID. 702 advisory committee's note (2000). The Court in Kumho Tire also stressed that the Daubert elements are not a definitive checklist and that the trial court's gatekeeping inquiry must be "flexible" and "tied to the facts of a particular case." Kumho Tire, 526 U.S. at 150. See also Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 1999) ("the district court's gatekeeper role is a flexible one and . . . the factors are simply useful signposts, not dispositive hurdles that a party must overcome in order to have expert testimony admitted."). The primary objective is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152.

Importantly, however, "[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached . . . and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply 'taking the expert's word for it.'" Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005) (quoting FED. R. EVID. 702 advisory committee note) (rejecting expert's opinion that the number of lawsuits against the police department evidenced a "pattern" of excessive force, where expert failed to present data comparing and contrasting the number of excessive force complaints in Chattanooga with those in similarly-sized cities), cert. denied, 126 S.Ct. 338 (2005). In other words, expert opinions are inadmissible if based on speculative assumptions. See In re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 37 F.3d 804, 824 (2d Cir. 1994) (overruled on other grounds by Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), as recognized in Brink's Ltd. v. South African Airways, 93 F.3d 1022, 1029 (2d Cir. 1996)). See also Kumho Tire, 526 U.S. at 157 ("Opinion evidence that is connected to existing data only by the ipse dixit of the expert" should not be admitted.).

A. Katherine Falk, M.D.

According to her curriculum vitae, Dr. Falk earned a medical degree from the Mount Sinai School of Medicine and is board certified in psychiatry and neurology. (See Declaration of Lisa Rabinowitz, dated June 22, 2005 ("Rabinowitz Decl."), Ex. A.) She has been in the private practice of adult and adolescent psychiatry for approximately thirty years. (Id.) In 1991, she founded a non-profit corporation called The Project for Psychiatric Outreach to the Homeless, Inc.; she served as the organization's medical director until June 2000 and as its president until April 2003. (Id.) She has also served as a Clinical Assistant Professor of Psychiatry at Columbia University College of Physicians and Surgeons since 1984, and is a Distinguished Fellow of the American Psychiatric Association. (Id.)

Plaintiff intends to offer Dr. Falk's testimony to explain how the N.Y.P.D.'s "policies regarding [EDPs] affect people with mental illness." (Plaintiff's Closing Argument on Defendants' Daubert Motion to Preclude Certain Testimony of Plaintiff's Proposed Expert Dr. Katherine Falk, dated June 23, 2006 ("Pl.'s Post-Hearing Mem."), at 1.) Specifically, Dr. Falk is expected to explain (a) the nature of schizophrenia, (b) how "pain, fear, trauma, and suffering may be experienced by a person with schizophrenia," and (c) the "foreseeable consequences of the NYPD policies of encirclement and 'isolate and contain' when officers interact with persons with mental illness who are dangerous to themselves or others, and who are in states similar to that of Kevin Cerbelli." (Id.)

The police defendants take issue with portions of Dr. Falk's proffered testimony concerning N.Y.P.D. practices and policy regarding EDPs. Specifically, the police defendants object to the following opinions in Dr. Falk's report:

* The NYPD policy allowing encirclement and shouting commands at an EDP is irrational, and likely to cause harm to individuals. When officers surround, encircle, semi-circle, or otherwise close in on an EDP, and have multiple voices shout at the EDP, it is foreseeable that rather than gain compliance, the officers will make the situation worse and more dangerous.

* I take that as meaning that if the EDP is waiving his/her arms in the air and is not holding a weapon, that the police could legitimately decide that they are in danger and shoot the EDP. As for shooting someone, the police are instructed to aim at the EDP's body. They are absolutely not permitted to aim at the EDP's leg. Captain Lent sates, ". . . it's the center mass . . . the largest area of the body. When we aim at all times . . . . We are taught only one way to use a gun."*fn2 Kevin Cerbelli was killed in a police precinct. Apparently there is no policy in place for dealing with a mentally ill person inside a precinct.

* Often they come to the attention of the police. The policy of the NYPD to deal with EDPs is very lacking in any basic understanding of the nature of mental illness and how to form a relationship with someone this ill. I am using the word relationship because it is the relationship that is needed to gain his/her trust and cooperation. It would seem from Captain Lent's deposition that the police are frightened of the EDP. They consider the EDP to be unpredictable and therefore a threat. Because the police feel that the EDP is potentially a deadly threat, even if the emotionally disturbed person ...


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