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United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County

April 22, 2009


The opinion of the court was delivered by: Denise Cote, District Judge


The parties have filed motions to exclude the testimony of their adversary's experts in this False Claims Act litigation, which is scheduled for trial on May 4, 2009. The plaintiff's motion is granted; the defendant's motion is granted in part.

The plaintiff Anti-Discrimination Center of Metro New York, Inc. ("ADC") was granted partial summary judgment on February 24, 2009, in an opinion which held that the defendant Westchester County, New York ("Westchester") made false statements to the Secretary of Housing and Urban Development ("HUD") between April 2000 and April 2006 to obtain over $52 million in federal funding for housing and community development. United States ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, No. 06 Civ. 2860 (DLC), 2009 WL 455269, at *16 (S.D.N.Y. Feb. 24, 2009) ("February Opinion"). Briefly stated, the February Opinion found that the County had falsely certified that in administering the federal housing and community development funds it would affirmatively further fair housing, an obligation referred to as "AFFH". To AFFH, Westchester was required to conduct an analysis of impediments or "AI" to fair housing choice, including those impediments imposed by racial discrimination and segregation, to take appropriate actions to overcome the effects of any identified impediments, and to maintain records reflecting the analysis and actions. Among other things, Westchester did not analyze race in conducting its AIs. The principal if not sole remaining issue for trial is whether Westchester made the false statements knowingly, that is, with actual knowledge of, acting in deliberate ignorance of, or in reckless disregard of the falsity.

Westchester has moved to exclude the trial testimony of the plaintiff's four experts. They are Dr. Andrew Beveridge ("Beveridge"), Chair of the Sociology Department at Queens College and an expert in demography and statistics; Dr. Calvin Bradford ("Bradford"), a former academic who has worked as an expert in the field of housing discrimination for decades; Dr. John Logan ("Logan"), a Professor of Sociology at Brown University; and Sara Pratt ("Pratt"), formerly HUD's Director of the Office of Enforcement, Office of Fair Housing and Equal Opportunity. The plaintiff has moved to exclude the testimony of two of Westchester's three experts:*fn1 Dr. William Clark, who is apparently associated with the Department of Geography at the University of California, Los Angeles*fn2 ; and Dr. Finis Welch, a Professor Emeritus of Economics at Texas A&M University.


Rule 702 of the Federal Rules of Evidence ("Rule 702") provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert witness may give testimony about that specialized knowledge. Fed. R. Evid. 702. "Expert witnesses are often uniquely qualified in guiding the trier of fact through a complicated morass of obscure terms and concepts." United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994). Expert testimony is properly excludable, however, where "persons of common understanding are [ ] capable of comprehending the primary facts and of drawing correct conclusions from them." United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991) (citation omitted). See also United States v. Mejia, 545 F.3d 179, 194 (2d Cir. 2008) ("Testimony is properly characterized as 'expert' only if it concerns matters that the average juror is not capable of understanding on his or her own."); United States v. Wexler, 522 F.3d 194, 204 (2d Cir. 2008) (expert testimony appropriate "when it sheds light on activities not within the common knowledge of the average juror" (citation omitted)). On the other hand, expert testimony may be admitted on even non-esoteric matters where a party seeks to discredit an opponent's version of events as improbable. United States v. Cruz, 981 F.2d 659, 664 (2d Cir. 1992). If it is unclear whether the fact will be contested, the court may require counsel to express a decision not to dispute the issue with sufficient clarity that the court would be entitled to restrict cross-examination or jury argument on the issue. Id.

Of course, expert testimony is also properly excluded if it fails to meet the requirement of relevance stated in Rule 401 of the Federal Rules of Evidence. The Court must also apply Federal Rule of Evidence 403 before accepting expert testimony. See Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005); Cruz, 981 F.2d at 663; Castillo, 924 F.2d at 1234.

The use of expert testimony is not permitted, however, if it will "usurp either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it." United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999) (citation omitted). See also Nimely, 414 F.3d at 397; Duncan, 42 F.3d at 101; United States v. Locascio, 6 F.3d 924, 939 (2d Cir. 1993); United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991); United States v. Jacques Dessange, Inc., No. S2 99 Cr. 1182 (DLC), 2000 WL 294849, at *1 (S.D.N.Y. Mar. 21, 2000).

With regard to an expert encroaching on the role of the jury, the Second Circuit has explained that

[w]hen an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, but rather attempts to substitute the expert's judgment for the jury's. When this occurs, the expert acts outside of his limited role of providing the groundwork in the form of an opinion to enable the jury to make its own informed determination.

Duncan, 42 F.3d at 101; see also Nimely, 414 F.3d at 397. Thus, expert testimony that amounts to the statement of a legal conclusion must be excluded. Duncan, 42 F.3d at 101. An expert "may opine on an issue of fact within the jury's province," but "may not give testimony stating ultimate legal conclusions based on those facts." Bilzerian, 926 F.2d at 1294. See also United States v. Scop, 846 F.2d 135, 140 (2d Cir. 1988) (expert testimony that defendants were "active participants" in "scheme to defraud" amounted to application of law to facts that improperly usurped jury's role), rev'd in part on other grounds, 856 F.2d 5 (2d Cir. 1988). It is particularly inappropriate for a witness to track the exact language of statutes and regulations which the defendant is accused of violating. Duncan, 42 F.3d at 101. For example, the Second Circuit has held that an expert's repeated statements that defendants' conduct established a "manipulative" and "fraudulent" scheme within the meaning of the securities laws exceeded the permissible scope of opinion testimony. Scop, 846 F.2d at 140. Similarly, an expert may not intrude on the jury's role in assessing credibility. Nimely, 414 F.3d at 398. It is appropriate, therefore, to exclude expert testimony offered to bolster the credibility of fact witnesses. United States v. Lombardozzi, 491 F.3d 61, 77-78 (2d Cir. 2007); Lumpkin, 192 F.3d at 289; Cruz, 981 F.2d at 663; Scop, 846 F.2d at 142.

Equally, the expert witness may not "invade the province of the court to determine the applicable law and to instruct the jury as to that law." Scop, 846 F.2d at 140 (internal quotation omitted). It is not for witnesses to instruct the jury as to applicable principles of law, but for the judge. Id.; see also United States v. Stewart, 433 F.3d 273, 311 (2d Cir. 2006) ("[A]n opinion that purports to explain the law to the jury trespasses on the trial judge's exclusive territory.") Terms that are not self-defining, but rather that have been the subject of diverse judicial interpretations must be defined for the jury by the judge. Scop, 846 F.2d at 140. See also Bilzerian, 926 F.2d at 1295 (expert testimony explaining how term is generally understood in the securities industry properly excluded); Federal Aviation Administration v. Landy, 705 F.2d 624, 632 (2d Cir. 1983) (questions soliciting former FAA employee's understanding of the meaning and applicability of administrative regulations would invade the province of the court); Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d 505, 510-11 (2d Cir. 1977) (holding that an expert's legal opinion on the meaning of certain contract terms was, inter alia, an invasion of the court's authority to instruct the jury on the applicable law). On the other hand, an expert may "explain sophisticated aspects of a regulatory system" if to do so "shed[s] light on activities not within the common knowledge of the average juror." Duncan, 42 F.3d at 101 n.3. For example, an expert may help a jury understand "unfamiliar terms and concepts" in complex securities cases so long as such testimony is "carefully circumscribed" so that it does not usurp the role of either the judge or jury. Bilzerian, 926 F.2d at 1294. Similarly, testimony regarding ordinary practices in an industry is appropriate if it helps a jury evaluate a defendant's conduct against "the standards of accepted practice." Id. at 1295. Nonetheless, testimony about industry practice may not be used to circumvent the prohibition on testimony that encompasses an ultimate legal conclusion. Id.

Applying these principles, the proffered testimony from Bradford, Clark, and Welch must be excluded in its entirety. The remaining three experts may be permitted to testify on some of the issues identified in the parties' submissions. The parties shall meet and confer regarding the application of these rulings to the proposed testimony of these three experts and bring any ...

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