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Allen v. City of New York

December 22, 2006

ADRIANNE ALLEN, ET AL., PLAINTIFFS,
v.
CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

On February 3, 2002, plaintiffs were arrested following their participation in an animal rights march during the World Economic Forum ("WEF") in New York City. They brought this action against the City of New York and various employees of the New York City Police Department ("NYPD") (collectively, the "City") asserting claims under 42 U.S.C. § 1983, including a claim that the police deliberately held them in custody for an unnecessarily long period of time in order to delay their arraignment in Criminal Court. Defendants now move in limine for an order excluding a portion of the testimony of plaintiffs' proposed expert witness, Richard Faust. Faust analyzed arrest data and compared the time it took to process WEF arrestees with the time it took to process non-WEF arrestees. Faust found that it took longer to process the WEF arrestees and opined that this finding "support[s] the hypothesis that the NYPD purposely took longer to process the WEF arrestees" than non-WEF arrestees. For the reasons stated below, defendants' motion to exclude this portion of Faust's testimony is denied.

I. BACKGROUND

A. Factual Background

From January 31 to February 4, 2002, there were demonstrations in New York City relating to meetings being held by the WEF. On January 31, February 2 and 3, the NYPD arrested some of the WEF demonstrators. No WEF demonstrators were arrested on February 1 or 4. See Affidavit of Plaintiffs' Expert Richard Faust (the "Report") (annexed as Ex. A to Notice of Motion, filed May 19, 2006 (Docket #142) ("Def. Mot.")), ¶ 7.

Faust is an "independent survey research consultant involved in the design and conduct of survey research studies and in the analysis of social science data." Report ¶ 1. He has taught and worked in the area of social sciences and data analysis, has authored articles analyzing data concerning various topics, and has testified as an expert witness in employment, housing, and education discrimination cases. See id. ¶¶ 3-6.

Faust's Report states that the amount of time from the arrest to the completion of the arraignment process, i.e., the arrest-to-arraignment time, for the sixteen plaintiffs averaged 36.17 hours. See id. ¶ 9. Faust used data provided by the NYPD to compare the arrest-to-arraignment time for WEF versus non-WEF arrestees over the 3 days during the demonstrations when arrests occurred. See id. ¶¶ 24-29. The processing time was 34.65 hours for WEF arrestees and 19.79 hours for non-WEF arrestees -- in other words, processing took 75% longer for the WEF arrestees. Id. ¶ 10. Faust found that there was no relationship between the number of arrests on any given day and how long it took for the arrestees to be arraigned. Id. ¶ 13.

Faust was also able to examine certain segments of the arrest-to-arraignment process. After the arrestees were brought to the holding cells at the courthouse, referred to as "Lodge 4," Faust found that there was "almost no difference between WEF and non-WEF arrestees in the amount of time from their arrival at [Lodge 4] to" the time of their arraignment. Id. ¶ 14. The apparent import of these data is that the delay in processing WEF arrestees in comparison to nonWEF arrestees arose during the time that the WEF arrestees were in police custody rather than in court custody. Faust concludes that in his "expert opinion, these statistical results support the hypothesis that the NYPD purposely took longer to process the WEF arrestees." Id. ¶ 15.

B. The Instant Motion

Defendants announce broadly that they move to "to preclude the report and testimony of . . . Richard Faust." See Def. Mot.; Declaration of Pamela Lynam Mahon, dated Nov. 22, 2005 (annexed to Def. Mot.), ¶ 1; Defendants' Memorandum of Law in Support of Their Daubert Motion, filed May 19, 2006 (Docket #143) ("Def. Mem."). But their memorandum of law actually addresses only a single phrase of the Faust Report. The phrase, as stated by the City, is Faust's purported contention that the NYPD "purposely took longer to process the WEF arrestees." See Def. Mem. at 4, 8. In fact, Faust does not make this contention. What he states is that certain "statistical results support the hypothesis that the NYPD purposely took longer to process the WEF arrestees." Report ¶ 15 (emphasis added). Thus, the City's attorneys have elided critical words from the Report resulting in an argument that ignores what Faust actually said.

We now turn to whether the sentence actually attested to by Faust is subject to preclusion pursuant to Rule 702 of the Federal Rules of Evidence and case law regarding the admission of expert testimony. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993).

II. APPLICABLE LEGAL PRINCIPLES

A. Motion in Limine Standard "The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (citation and internal quotation marks omitted); accord Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 283 (S.D.N.Y. 1996). "A motion in limine to preclude evidence calls on the court to make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence." Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., 2004 WL 1970144, at *4 (S.D.N.Y. Sept. 3, 2004) (citing Fed. R. Evid. 104(a)). "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." Id. (citing Baxter Diagnostics, Inc. v. Novatek Med., Inc., 1998 WL 665138, at *3 (S.D.N.Y. Sept. 25, 1998)); accord SEC v. U.S. Envtl., Inc., 2002 WL 31323832, at *2 ...


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