Kogut v. The County of Nassau et al
Filing
350
MEMORANDUM & ORDER denying 289 Motion for Hearing; granting 204 Motion to Strike; denying 205 Motion to Strike; granting 229 Motion for Leave to File Excess Pages. For the foregoing reasons, Defendants' motion to exclude Plaintiff s' experts is DENIED except to the extent that the discussion above precludes Plaintiffs' Experts' from testifying to any degree of "scientific certainty." Plaintiffs' motion to exclude Defendant's statistics exp ert is GRANTED. Defendants' request to re-open the Daubert record (Docket Entry 289) is DENIED because the evidence to which they call the Court's attention is irrelevant. Defendants' motion to file excess pages (Docket 229) is retroactively GRANTED. So Ordered by Judge Joanna Seybert on 8/15/2012. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
JOHN KOGUT,
Plaintiff,
MEMORANDUM & ORDER
06-CV-6695(JS)(WDW)
(LEAD CASE)
-againstTHE COUNTY OF NASSAU, POLICE
COMMISSIONER DONALD KANE, POLICE
COMMISSIONER WILLIAM J. WILLETT (2005),
POLICE COMMISSIONER JAMES LAWRENCE,
DETECTIVE SEAN SPILLANE (HEAD OF HOMICIDE
1985), DETECTIVE DENNIS FARRELL (HEAD OF
HOMICIDE 2005), CAROLANN HESSEMAN, AS
EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE,
DETECTIVE ROBERT DEMPSEY, DETECTIVE ALBERT
MARTINO, DETECTIVE WAYNE BIRDSALL,
DETECTIVE MILTON G. GRUBER, DETECTIVE
CHARLES FRAAS, DETECTIVE FRANK SIRIANNI,
DETECTIVE HARRY WALTMAN, P.O. MICHAEL
CONNAUGHTON, P.O. WILLIAM DIEHL, and
JOHN DOES 1-5,
Defendants.
----------------------------------------X
JOHN RESTIVO, DENNIS HALSTEAD,
MELISSA LULLO, JASON HALSTEAD,
HEATHER HALSTEAD, and TAYLOR
HALSTEAD,
Plaintiffs,
- against NASSAU COUNTY, CAROLANN HESSMAN, AS
EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE,
in his individual capacity, ROBERT DEMPSEY,
in his individual capacity, FRANK SIRIANNI,
in his individual capacity, MILTON GRUBER,
in his individual capacity, HARRY WALTMAN
in his individual capacity, ALBERT MARTINO,
in his individual capacity, CHARLIE FRAAS,
in his individual capacity, THOMAS ALLEN
in his individual capacity, RICHARD BRUSA,
in his individual capacity, VINCENT DONNELLY,
06-CV-6720(JS)(WDW)
(MEMBER CASE)
in his individual capacity, MICHAEL
CONNAUGHTON, in his individual capacity,
WAYNE BIRDSALL, in his individual capacity,
WILLIAM DIEHL, in his individual capacity,
JACK SHARKEY, in his individual capacity,
DANIEL PERRINO, in his individual capacity,
ANTHONY KOZIER, in his individual capacity,
Detective Sergeant CAMPBELL, (Shield #48),
in his individual capacity, SEAN SPILLANE,
in his individual capacity, RICHARD ROE
SUPERVISORS #1-10, in their individual
capacities,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiffs:
John Kogut
Anthony M. Grandinette, Esq.
John T. Serio, Esq.
Grandinette & Serio, LLP
114 Old Country Road, Suite 420
Mineola, New York 11501
Paul Casteleiro, Esq.
86 Hudson Street
Hoboken, New Jersey 07030
John Restivo,
Dennis Halstead,
Melissa Lullo,
Jason Halstead,
Heather Halstead,
and Taylor
Halstead
Barry C. Scheck, Esq.
Deborah L. Cornwall, Esq.
Monica R. Shah, Esq.
Nick Joel Brustin, Esq.
Anna Benvenutti Hoffman, Esq.
Sonam A. H. Henderson, Esq.
Cochran, Neufeld & Scheck, LLP
99 Hudson Street, 8th Floor
New York, New York 10013
For Defendants:
Louis M. Freeman, Esq.
Lee Ginsberg, Esq.
Freeman, Nooter & Ginsberg
75 Maiden Lane, Suite 503
New York, New York 10038
2
David L. Lewis, Esq.
Lewis & Fiore, Esq.
225 Broadway, Suite 3300
New York, New York 10007
Liora M. Ben-Sorek, Esq.
Sondra Meryl Toscano, Esq.
Christine Ann Lobasso, Esq.
Dennis J. Saffran, Esq.
Sondra Meryl Toscano, Esq.
Office of the Nassau County Attorney 1
One West Street
Mineola, New York 11501
SEYBERT, District Judge:
This Memorandum and Order addresses only Defendants’
motion
to
exclude
Plaintiffs’
hair
experts
motion to exclude Defendants’ statistician.
and
Plaintiffs’
For the reasons
that follow, Defendants’ motion (Docket Entry 205) is DENIED
except to the extent discussed below, and Plaintiffs’ motion
(Docket Entry 204) is GRANTED.
BACKGROUND
These
Daubert
motions
principally
concern
the
phenomenon that the Court will refer to as “post-mortem root
banding”
(“PMRB”).
The
Court
1
will
discuss
PMRB
and
its
Michael Ferguson, Esq. of the Nassau County Attorney’s Office
has participated in various proceedings in connection with this
case. Mr. Ferguson is directed to file a notice of appearance
forthwith.
3
relevance
in
detail,
but
it
first
turns
to
the
crime
and
prosecution underlying this wrongful conviction case.
I. The Fusco Homicide
On November 10, 1984, Theresa Fusco disappeared after
leaving
work
at
approximately
9:50
p.m.
Her
nude
body
was
discovered five weeks later in a wooded area on Long Island, New
York.
In 1986, Plaintiffs John Restivo, Dennis Halstead, and
John Kogut were tried and convicted of Fusco’s rape and murder.
(See generally Pls. Opp. 2.) 2
The only forensic evidence linking Restivo, Halstead,
or Kogut to the Fusco Homicide at their 1986 criminal trials
were two “questioned” hairs (the “Q8 hairs”) that Nassau County
Police Department (“NCPD”) investigators purportedly recovered
during a search of Restivo’s blue van on March 26, 1985, almost
five
months
after
the
murder.
An
NCPD
analyst,
Detective
Charles Fraas, testified that the Q8 hairs were consistent with
“known” hairs that were collected during Fusco’s autopsy.
2
(See
There are two sets of motion papers under consideration here.
Citations to “Defs. Br. __;” “Pls. Opp. __;” and “Defs. Reply
__” refer to Defendants’ motion to exclude Plaintiffs’ experts,
Plaintiffs’ opposition to that motion, and Defendants’ reply,
respectively. Citations to “Pls. Br. __;” “Defs. Opp. __;” and
“Pls. Reply __” refer to Plaintiffs’ motion to exclude
Defendants’ expert, Defendants’ opposition to that motion, and
Plaintiffs’ reply, respectively.
4
generally Pls. Opp. 2.)
prosecutors
argued
At Restivo and Halstead’s 1986 trial,
that
the
presence
of
the
Q8
hairs
in
Restivo’s van proved that Restivo, Halstead, and Kogut used the
van to abduct Fusco, rape her, and then, after strangling her in
a cemetery, dump her body in the woods near the railroad tracks
in Lynbrook--all within a span of a few hours.
experts
at
that
trial--Fraas
and
hair
All three hair
microscopist
Nicholas
Petraco for the prosecution and Peter De Forest for the defense-testified that they observed PMRB in the Q8 hairs.
DNA testing eventually excluded Restivo, Halstead, and
Kogut as the source of the semen that was collected from Fusco’s
body,
and
Plaintiff
all
three
Kogut
men
was
had
their
re-tried
in
1986
2005.
convictions
At
the
vacated.
re-trial,
prosecutors offered DNA evidence matching the Q8 hairs and a
third hair also ostensibly collected from Restivo’s van (the “Q4
hair” and, together with the Q8 hairs, the “Q hairs”) with known
hairs collected during the autopsy.
After considering evidence
related to PMRB, Judge Victor M. Ort was persuaded that the Q
hairs were not actually left in Restivo’s van on the night that
Fusco disappeared.
acquitted
Kogut,
(See generally Pls. Opp. 3.)
and
the
Halstead were soon dismissed.
indictments
against
Judge Ort
Restivo
and
Plaintiffs brought this wrongful
5
conviction case shortly thereafter.
(See generally Pls. Opp. 3-
4.)
II. Post-Mortem Root Banding
Plaintiffs
contend
that
PMRB
evidence
demonstrates
that the Q hairs were in fact autopsy hairs that were planted
among, or mistakenly mixed with, trace evidence collected from
Restivo’s van.
Petraco
(who
Plaintiffs’ PMRB experts--Max Houck, Nicholas
testified
for
the
prosecution
at
Halstead
and
Restivo’s 1986 trial), and Peter De Forest--propose to testify
that PMRB is the emergence of opaque, ellipsoidal bands at the
roots of hairs that have been removed from bodies that have been
decomposing for at least several days.
In Plaintiffs’ Experts’ 3
opinion, PMRB only develops while hairs are still attached to a
decomposing body, and the banding takes several days after death
to appear.
This means, then, that if the Q hairs show PMRB,
then they could not have come from Ms. Fusco during the short
time she was alleged to have been in the van on the night she
died.
A more likely explanation, from Plaintiffs’ perspective,
3
Because this decision addresses both Plaintiffs’ three PMRB
experts and Defendants’ statistics expert, and because it is
sometimes helpful to describe Plaintiffs’ views on PMRB in
generalities, the Court will occasionally refer to all three of
Plaintiffs’ PMRB experts as “Plaintiffs’ Experts.”
6
is that the Q hairs were taken from the autopsy table and placed
with the trace evidence collected from the van.
In June, the Court held a Daubert hearing to determine
whether and to what extent Plaintiffs’ Experts and Defendants’
statistician, Joseph Kadane, will be permitted to testify at
trial.
See generally Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
The
following is a summary of the proposed experts’ qualifications
and opinions.
Other relevant evidence, either adduced at the
hearing or submitted with the parties’ motions, is addressed as
appropriate in the discussion section.
A. Max Houck
Houck is a forensic anthropologist and trace evidence
analyst.
Among
(Pls. Ex. 1, Houck Expert Report (“Houck Rpt.”) at 1 4.)
Houck’s
professional
and
educational
achievements
are
Bachelor’s and Master’s degrees in anthropology and a Ph.D. in
applied chemistry.
(Id.)
From 1992 to 2001, he was a physical
scientist
FBI’s
Laboratory
assigned
in
to
the
the
trace
evidence
4
unit.
Division,
Later,
where
he
he
was
became
the
Many of the exhibits received in evidence at the Daubert
hearing were duplicative of evidence attached to the parties’
motions. Except as otherwise noted, the Court will refer to
evidence using the designation each exhibit received at the
hearing.
7
director of the Forensic Science Initiative (Research) at the
University of West Virginia.
(Id.)
At
one
point
He held this post until 2011.
during
his
career,
Houck
chaired
the
Scientific Working Group on Materials Analysis (“SWGMAT”), which
is
a
professional
organization
whose
mission
is
to
develop
consensus guidelines for best practices in the forensic sciences
field.
(Daubert Hearing Transcript (“Hrg. Tr.”) 24-25.)
has a sub-committee dedicated to hair and fiber analysis.
SWGMAT
(Id.)
In his expert report, Houck explains that PMRB is an
artifact of decomposition:
In decomposition, hairs that were actively
growing . . . until the time of death go
through changes in their root ends related
to the decomposition of the surrounding skin
and follicle. One of the phenomena observed
in these former anagen or early catagen
hairs [i.e., hairs in the active growing
stage] is called “putrid root” or “postmortem root banding.”
(Houck Rpt. 6.)
which
appears
He defines PMRB as “an opaque ellipsoidal band
to
be
composed
of
a
collection
of
parallel
elongated air spaces near the root of a hair, appearing as a
dark
or
blackened
quotations
seminal
band
omitted).)
article
Significance
of
on
Human
in
the
This
PMRB,
Hair
hair
shaft.”
definition
“The
is
Morphology
Roots,”
8
which
(Id.
derived
and
was
(internal
from
the
Evidential
authored
by
Plaintiffs’ other two PMRB witnesses, Nicholas Petraco and Peter
De
Forest,
as
well
Halstead/Restivo
as
1986
Charles
criminal
Fraas
trial)
(the
and
detective
another
at
the
researcher.
N. Petraco, C. Fraas, F.X. Callery, and P.R. De Forest, “The
Morphology and Evidential Significance of Human Hair Roots,” J.
FORENSIC SCI. 33(1):68-76, 73 (1988).
According
to
Houck,
“[t]he
transformation
of
the
putrid root only occurs in roots that remain in the scalp of a
decomposing
body;
the
changes
do
not
occur
if
the
hair
is
plucked (or shed) prior to death and allowed to deteriorate.”
(Houck Rpt. 7.)
He asserts that, according to the literature on
the topic, for a hair to exhibit PMRB three conditions must be
met: the hair must have been (1) in the active growing phase
prior to an individual’s death; (2) in the skin while the body
was decomposing; and (3) “in the decomposing skin for a minimum
of
7
days.”
(Id.)
Based
on
Houck’s
understanding
of
the
prosecution’s theory of the Fusco Homicide, according to which
Fusco was in Restivo’s van for “perhaps less than an hour,” the
Q
hairs
could
disappeared.
not
have
come
from
(See id. at 7-8.)
Fusco
on
Houck concludes:
the
night
she
“Based on the
known and documented scientific clinical studies on postmortem
root banding relating to its timing, description, appearance,
9
and conditions for existence, there is no known mechanism or
reasonable explanation for [PMRB] to appear in Ms. Fusco’s hairs
that were allegedly left in the blue van . . . .”
(Id. at 8.)
B. Nicholas Petraco
Nicholas Petraco has a Bachelor’s degree in analytical
chemistry
and
a
Master’s
degree
in
forensic
science.
Among
other things, Petraco was a trace evidence analyst with the New
York Police Department (“NYPD”) from 1974 until 1990.
In this
role, he analyzed hair evidence in thousands of cases.
Ex. 15, Petraco Expert Report (“Petraco Rpt.”) 2.)
(Pls.
Since 1990,
he has consulted for the NYPD’s Forensic Investigation Division,
where he is responsible for performing casework, training new
analysts, and establishing standard operating procedures for the
Department’s criminalistics unit.
(Id.)
Among his professional
and educational accomplishments, Petraco chaired SWGMAT’s hair
committee and, as mentioned above, co-wrote “The Morphology and
Forensic Significance of Human Hair Roots,” a landmark article
on PMRB.
(Id. at 3.)
Like
Houck,
Petraco
believes
that
the
Q8
hairs
purportedly collected from Restivo’s van could not have come
from
Fusco
either
before
she
died
or
during
the
brief
span
between her death and when her body was left in the woods.
10
(Petraco Rpt. 3).
As to the PMRB, Petraco opined that PMRB only
develops in hairs while they are attached to a decomposing body
and that the banding takes at least 8 hours after death to
appear.
(Id. at 4-5.)
On the latter point, Petraco cites two
instances in which PMRB was observed in hairs 8-10 and 10-12
hours after death, respectively.
According to Petraco, these
are the shortest reported intervals before which PMRB has been
observed.
(Id. at 5.)
Petraco has never seen, read, or heard
about a case in which PMRB appeared less than eight hours after
death.
(Id.)
Petraco also states that hairs do not continue to
develop post-mortem banding patterns once they’ve been removed
from a dead scalp.
Petraco
following
(Id. at 5.)
makes
discussion.
two
First,
other
he
points
observed
relevant
that
the
to
Q8
the
hairs
exhibited banding patterns that are consistent with the patterns
on “known” hairs collected during Fusco’s autopsy.
(Id. at 6.)
And, because hairs do not continue to develop PMRB once they are
removed from the scalp (id. at 5), it is “extremely unlikely,
and probably impossible” that the Q8 hairs--if they really came
from
Fusco
exhibit
PMRB
either
before
consistent
or
with
shortly
degree
of
after
she
banding
died--would
seen
on
the
autopsy hairs taken weeks after Fusco was murdered (id. at 6).
11
Second, Petraco observed that the Q8 hairs were in “pristine
condition” and did not exhibit any debris, mechanical damage, or
breakage that one would expect from hairs that had been on the
floor of a van for four months.
(Id. at 6.) In contrast, other
hairs collected from Restivo’s van did display these types of
damage.
(Id.)
Petraco also concludes that the Q4 hair could not have
come from Fusco while she was alive or shortly after she died.
(Id. at 6-7.)
He formed this opinion for reasons similar to the
rationale underpinning his conclusions as to the Q8 hairs.
C. Peter De Forest
De Forest has a Bachelor’s degree and a Doctorate in
criminalistics.
(Pls.
Forest Rpt.”) Ex. A.)
Ex.
25,
De
Forest
Expert
Report
He taught criminalistics at the John Jay
College of Criminal Justice for nearly forty years.
list
of
his
(“De
scholarly
books,
presentations spans sixteen pages.
chapters,
(Id.)
(Id.)
articles,
A
and
Among his many other
professional memberships, De Forest is an Academic Affiliate of
the American Society of Crime Laboratory Directors and a charter
member of the New York Society of Forensic Sciences.
At one
time he was the chairman of the Council on Forensic Science
Education.
(Id.)
12
In
his
report,
De
Forest
explains
that
although
scientists do not yet fully understand how and why PMRB works
(De Forest Rpt. 6), “[e]xperience and research have shown that
classical
post-mortem
root
banding
in
scalp
hairs
is
only
observed in hairs that have been taken from anagen follicles in
partially decomposed scalp tissue.”
(De Forest Rpt. 6.)
He
observes that PMRB “is a recognized phenomenon in the scientific
community of forensic hair examiners,” and he states that he has
kept
current
on
develops
involved in the case in 1986.
concerning
PMRB
since
he
became
(Id. at 7.)
Like Houck and Petraco, De Forest doesn’t think that
the Q8 hairs were left behind by Fusco on the night she was
abducted.
(Id. at 8.)
The Q8 hairs exhibited PMRB, which mean
that the hairs “had come from a decomposing body and had not
been in the van interior environment for any period of time even
approaching that of the other hairs” that had been collected
(Id. at 8.)
from the van.
On the timing point, De Forest
suggests that microbial activity may be to blame for PMRB and
that
the
most
vulnerable
sections
of
hair
(the
least
keratinized) enjoy the greatest protection from microbial attack
(because they are under the scalp surface).
hearing,
he
elaborated
on
this
13
idea,
(Id. at 7.)
explaining
At the
that
the
juxtaposition
between
keratinization)
and
increased
decreased
vulnerability
microbial
access
as
(less
one
moves
along the shaft of the hair toward the root may explain PMRB’s
spindle or ellipsoidal shape.
De
Forest
also
(Hrg. Tr. 518, 542.)
examined
“known”
hairs
from
Fusco’s
autopsy and reached the following conclusion:
What is very clear is that the degree of
[PMRB] observed and documented in the Q8
hairs is similar to the greatest degree of
[PMRB] observed among the known hairs taken
at autopsy.
It is my opinion to a
reasonable degree of scientific certainty
that the Q8 hairs exhibiting [PMRB] came
from the sample of known hairs taken at the
autopsy of the homicide victim, Theresa
Fusco.
(De
Forest
“exhibited
Rpt.
8.)
post-mortem
scientific certainty.”
He
also
root
concluded
banding
that
beyond
the
a
Q4
hair
reasonable
(Id.)
D. Joseph Kadane
The only defense expert at issue in this motion is
Joseph Kadane, a statistician.
he
is
a
professor
University.
1.)
emeritus
He has a Ph.D. in statistics and
of
statistics
at
Carnegie
Mellon
(Defs. Ex. L, Kadane Expert Report (“Kadane Rpt.”)
Although he has never studied human hair, he has previously
offered expert statistics testimony.
14
(Id.)
Defendants
questions:
first,
engaged
the
Kadane
extent
to
to
opine
two
related
PMRB
which
on
can
be
reliably
distinguished from pre-mortem root banding and whether the Q
hairs exhibited pre- or post-mortem banding; and second, whether
science can reliably ascertain the length of time since a banded
hair
was
question,
removed
he
from
refers
a
to
body.
a
(Id.
study
by
a
at
3.)
graduate
On
the
first
student
named
Alison Domzalski that tested whether hairs from living subjects
would
develop
root
banding
if
they
were
exposed
to
various
environmental conditions including, for example, being buried in
soil.
(Alison Clare Domzalski, “The Effects of Environmental
Exposure on Human Scalp Hair Root Morphology” (February 2004)
(the “Domzalski Paper”).)
Domzalski found that certain hairs
did develop a type of root banding after being exposed to the
elements,
and
she
confused” with PMRB.
cautioned
that
(Id. at 49)
this
banding
“could
be
She noted, however, that the
environmental banding appeared nearer to the hair root than PMRB
does.
(See
id.)
The
parties
dispute
whether
PMRB
can
be
reliably distinguished from environmental root banding, but in
Kadane’s opinion, Domzalski’s study shows that with respect to
the evidence in this case:
[I]t is not unreasonable to suppose that the
Q-hairs were also exposed to dirt in the van
15
in which they were found.
Since the
mechanism(s) that lead to root banding is
unknown, we are not in a position to
determine whether the Q-hairs are pre- or
post-mortem.
Neither of these can be
excluded.
(Kadane Rpt. 11.)
On the second question, whether an examiner can tell
the amount of time since a banded hair was removed from a scalp,
Kadane
suggests
Plaintiffs’
the
Experts
issue
make
is
it
not
seem.
nearly
as
Referring
clear-cut
to
as
Petraco’s
assertion that, in the hundreds of cases he has reviewed, he has
not seen or read about banding appearing earlier than a day or
two
after
death
(other
than
the
two
cases
where
banding
apparently developed within 12 hours), Kadane opines that this
claim
fails
to
account
(Kadane Rpt. 12.)
for
crime
scene
and
autopsy
delays.
In other words, an examiner can’t observe
whether PMRB appears shortly after death because the body won’t
be autopsied until significantly after death.
(See id.)
Kadane’s report concludes:
I find that to a high degree of scientific
certainty, Dr. DeForest [sic] believes that
he
can
distinguish
reliably
between
postmortem hair banding and premortem (or
environmental) hair banding. However, there
are no validation studies confirming that he
or anyone else can do this, and no published
16
experiments on the subject.
subjective
belief
and
speculation.
We have only
unsupported
(Kadane Rpt. 14.)
Kadane supplemented his report after he had reviewed
Plaintiffs’
Experts’
findings.
He
concluded
that
report
as
follows:
The claim that root banding of human hairs
must be postmortem is such an example [of a
probabilistic claim made without statistical
evidence].
Msrs. DeForest [sic], Houck and
Petraco are saying with probability one that
root banding must be postmortem.
They have
no statistical foundation for that opinion.
(Docket Entry 209-3 at 5.)
DISCUSSION
Upon
careful
consideration
of
the
evidence
at
the
Daubert hearing and the parties’ arguments, the Court concludes
that
Plaintiffs’
Experts
may
offer
their
opinions
on
PMRB
consistent with the limitation discussed in Section II, below.
Defendants’ expert, Dr. Kadane, may not testify.
In the discussion that follows, the Court discusses
the standard for admitting expert evidence and then applies it
first to Plaintiffs’ Experts and then to Dr. Kadane.
17
I. Legal Standard
Federal Rule of Evidence 702 is the starting point for
assessing whether scientific or technical experts may testify at
trial.
Rule 702 provides that:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or
to determine a fact in issue;
(b) the testimony
facts or data;
is
based
on
sufficient
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
FED. R. EVID. 702.
District courts are the “gate-keepers” of
expert evidence, and they must make an initial determination
whether experts are qualified and whether their testimony is
both
relevant
Passenger
and
Corp.,
reliable.
303
F.3d
See
256,
264
Amorgianos
(2d
Cir.
v.
Nat’l
2002).
R.R.
Expert
evidence is relevant if it tends to make any fact of consequence
to the litigation more or less probable.
FED. R. EVID. 401.
reliable
may
be
Id. at 265; see also
Whether an expert’s testimony is sufficiently
a
more
nuanced
18
question.
In
answering
it,
courts
undertake
reasoning
or
preliminary
methodology
scientifically
methodology
“a
valid
properly
and
can
underlying
of
be
Daubert, 509 U.S. at 592-93.
assessment
whether
applied
to
whether
the
the
testimony
is
that
reasoning
or
the
of
facts
in
issue.”
Reliability is treated in depth in
Section II, below.
The proponent of an expert’s testimony has the burden
of satisfying the admissibility requirements by a preponderance
of the evidence.
E.g., United States v. Williams, 506 F.3d 151,
160 (2d Cir. 2007).
The decision whether to admit or exclude a
proposed expert’s testimony is committed to the Court’s broad
discretion.
E.g., Amorgianos, 303 F.3d at 264.
District courts
should generally exclude expert testimony “if it is speculative
or conjectural or based on assumptions that are ‘so unrealistic
and contradictory as to suggest bad faith’ or to be in essence
‘an apples and oranges comparison.’”
Zerega Ave. Realty Corp.
v. Hornbeck Offshore Transp., L.L.C., 571 F.3d 206, 214 (2d Cir.
2009) (citing Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21
(2d Cir. 1996)).
“[O]ther contentions that the assumptions are
unfounded
the
go
testimony.”
to
weight,
not
the
admissibility,
of
the
Id. (quoting Boucher, 73 F.3d at 212) (alteration
in Boucher).
19
II. Plaintiffs’ Experts
As discussed in this section, Plaintiffs’ Experts may
testify
provided
that
their
opinions
on
timing
and
on
the
ultimate issue of whether the Q hairs were left in Restivo’s van
on the night of the crime are not offered with any degree of
“scientific certainty.”
At the outset, the Court has no trouble
finding that Plaintiffs’ Experts are qualified to testify about
their experience in the field of forensic science.
They each
have a wealth of educational and professional experience and,
judging by their professional associations, among other things,
they are well-regarded in their field.
See, e.g., Derienzo v.
Trek Bicycle Corp., 376 F. Supp. 2d 537, 557 (S.D.N.Y. 2005).
Whether their testimony is helpful is a similarly easy question:
Plaintiffs’
Experts’
opinions
are
relevant
to
whether
police
found the Q hairs in Restivo’s van or planted them there--a
critical question in this case.
at 265.
See, e.g., Amorgianos, 303 F.3d
Whether Plaintiffs’ Experts’ opinions are reliable and
“fit” with the facts of this case merits a deeper discussion.
See Katt v. City of N.Y., 151 F. Supp. 2d 313, 356 (S.D.N.Y.
2001) (“Daubert requires, more, however, than a sterling resume
to permit opinion testimony by a professed expert.”).
20
A. Are Plaintiffs’ Experts’ Opinions Scientifically Valid?
As mentioned already, to be admissible under Rule 702,
expert testimony must be “based on sufficient facts or data” and
the “product of reliable principles and methods,” and the expert
has to have had “reliably applied the principles and methods to
the facts of the case.”
FED. R. EVID. 702.
Supreme
criteria
Court
set
forth
to
help
In Daubert, the
courts
reliability of purported scientific evidence.
590.
gauge
the
See 509 U.S. at
These are: whether a theory or technique (1) “can be (and
has been) tested;” (2) “has been subjected to peer review and
publication;” (3) has an acceptable rate of error; (4) is guided
by
accepted
professional
standards;
and
(5)
is
accepted within the relevant professional community.
593-94.
generally
Id. at
Although these factors are not a definitive checklist,
id. at 592, they are useful in evaluating whether an expert’s
scientific testimony is valid, see id. at 590.
Plaintiffs
argue
that
their
experts’
testimony
is
admissible under either Daubert or the Supreme Court’s holding
in Kumho Tire Co. v. Carmichael, which extended district courts’
gate-keeping
function
beyond
“scientific”
“technical, or other specialized knowledge.”
evidence
See 526 U.S. 137,
147, 119 S. Ct. 1167, 1174, 143 L. Ed. 2d 238 (1999).
21
to
The Court
rejects this argument to the extent that it means the Court
should
evaluate
Plaintiffs’
Experts’
opinions
without
considering the criteria the Supreme Court has identified for
assessing whether an opinion meets scientific muster.
Daubert
teaches that “in order to qualify as ‘scientific knowledge,’ an
inference
method.”
or
assertion
must
509 U.S. at 590.
be
derived
by
the
scientific
Houck’s and De Forest’s opinions are
grounded in the language of scientific certainty (see Houck Rpt.
8 (Based on the known and documented scientific . . . .”); De
Forest Rpt. 8 (“It is my opinion to a reasonable degree of
scientific certainty . . . .”), and it would be inappropriate to
let their testimony through the gate wholesale without testing
whether their opinions are scientifically valid.
See United
States v. Glynn, 578 F. Supp. 2d 567, 570 (S.D.N.Y. 2008); In re
Ephedra Prods. Liab. Litig., 393 F. Supp. 2d 181, 187 (S.D.N.Y.
2005).
The idea that PMRB takes several days to develop (and
thus that it could not have developed in the short time Ms.
Fusco was alleged to be in Restivo’s van) has not yet been
established
Ephedra,
393
by
F.
scientific
Supp.
2d
standards
of
at
The
186.
conclusion for several related reasons.
22
proof.
Court
See
In
reaches
re
this
First, although the
theory can be tested, it hasn’t been.
F.3d
at
160
highlighted
(citing
some
of
Daubert,
See, e.g., Williams, 506
U.S.
ethical
the
509
and
at
593-94).
logistical
Houck
problems
associated with testing the theory on human subjects (see Hrg.
Tr. 110), but a valid study does not necessarily depend on human
cadavers (see Kadane Rpt. 5).
The Court recognizes that this
cuts both ways; if a proposition is falsifiable, then a party
challenging
the
proposition
is
free
to
design
an
experiment
disproving it.
If this was the only shortcoming in Plaintiffs’
timing
the
theory,
through.
Court
may
have
been
inclined
to
let
it
But the Court has additional concerns.
Second, while Houck, Petraco, and De Forest agree that
PMRB takes days, not hours, to develop, this hypothesis is not
firmly grounded in the little academic literature or studies
that exist on the topic.
Houck believes PMRB develops within
“days” (Hrg. Tr. 173) and that if PMRB was observed in hairs
from someone who had been dead less than a day it would be a
“significant
finding”
(id.
at
143).
Petraco
typically needs two or three days to appear.
thinks
PMRB
(Id. at 428-29.)
And De Forest says that three days is the “reasonable lower
limit” of time needed for PMRB to appear.
(Id. at 646.)
The
written work on the topic is not nearly as uniform, however, and
23
the value of the few studies that have been done is limited by
small sample sizes or other issues.
Schulte
Corp.,
957
F.
Supp.
873,
See Kelley v. Am. Heyer880
n.8
(W.D.
Tex.
1997)
(“Adequacy of a sample size is an important consideration in
assessing the validity of a study . . . .”); see also Mastercard
Int’l, Inc. v. First Nat. Bank of Omaha, Inc., No. 02-CV-3691,
2004 WL 326708, at *10 (S.D.N.Y. Feb. 23, 2004) (excluding a
confusion survey due to an inadequate survey size).
A non-
exhaustive discussion of the hearing evidence follows.
One study, by Charles A. Linch and Joseph A. Prahlow,
suggests that PMRB may take between two days and a week to
develop.
(See
Pls.
Ex.
10,
Charles
A.
Linch
&
Joseph
A.
Prahlow, “Postmortem Microscopic Changes Observed at the Human
Head Hair Proximal End,” J. FORENSIC SCIENCE 2001:46(1), 15-20 [the
“Linch & Prahlow Study”].)
Linch and Prahlow only looked at
twenty-two cases, though, a very small sample.
(See Hrg. Tr.
520.)
Plaintiffs also point to a study in which researchers
looked at hairs plucked from three gorilla corpses that had been
found in the wild.
Abernethy,
Caroline
(Pls. Ex. 11, Kathryn J. Jeffery, Kate A.
E.
G.
Tutin
&
Michael
W.
Bruford,
“Biological and Environmental Degradation of Gorilla Hair and
24
Microsatellite Amplification Success,” BIOLOGICAL J.
SOCIETY, 2007, 91, 281-294.)
OF THE
LINNEAN
The researchers found that hair from
a gorilla that had been dead for eighteen hours did not exhibit
PMRB, hair from a gorilla that had been dead for three days
exhibited some PMRB, and hair from a gorilla that had been dead
(Id. at 289-
for six days exhibited advanced decomposition.
290.)
Gorilla hair is similar to human hair (id. at 286), and
therefore this study might suggest that PMRB takes longer than
eighteen hours to develop.
The problems with this study is,
again, that no one knows how or why PMRB happens in humans and
thus
no
one
knows
whether
differently in gorillas.
or
how
the
process
might
work
And, the sample size problem with this
study is acute: the researchers only were able to study a single
gorilla that had been dead for less than two days.
(See id. at
283.)
Jamie
Collier,
a
graduate
research on the timing of PMRB.
student,
also
conducted
(See Pls. Ex. 14, Jamie Hughes
Collier, “Estimating the Postmortem Interval in Forensic Cases
through the Analysis of Postmortem Deterioration of the Human
Head Hair,” Master’s Thesis, May 2005 [the “Collier Paper”].)
She studied hairs from nine cadavers--plus one living subject as
a control--and found that the earliest onset of PMRB was eighty25
nine
days
after
reconcile
death.
at
findings
these
(Id.
23.)
with
his
Dr.
opinion
within one day to seven days after death.
Houck
that
could
PMRB
not
appears
(Hrg. Tr. 186.)
As
with the other literature, this paper only considered a relative
handful of cases.
and
older
Also, all of the hairs were from middle-aged
Caucasians,
three
(Collier Paper at 29.)
differently
across
treatments
can
regimens
that
whom
suffered
from
cancer.
It’s unclear whether or how PMRB acts
age
and
affect
include
of
race,
hair
and
because
follicles,
chemotherapy
or
certain
cancer
it’s
possible
that
radiation
might
impact
Barbara
Wagner
(See Hrg. Tr. 186.)
PMRB.
There
is
also
a
graduate
thesis
by
Collins, one of Dr. De Forest’s graduate students.
Barbara
Wagner
Collins,
“The
Effect
of
(Def. Ex. E,
Temperature
on
Post
Mortem Morphology of Human Hair Roots,” Master’s Thesis, June
1996 [the “Collins Paper”].)
Collins’ research employed two
methods for determining the timing of PMRB.
In the first, she
took hair and scalp samples from autopsies and, keeping a part
of
each
sample
as
a
control,
placed
part
of
the
sample
in
different test environments: soil, sand, or no medium at either
four or twenty degrees Celsius (room temperature).
(Id. at 12.)
She observed that the scalp hair samples at room temperature
26
began to develop PMRB after twenty-four hours.
(Id. at 15.)
More pronounced banding developed by forty-eight hours, and the
frequency of banding increased and then stabilized after about
seventy-two hours.
(Id.)
The scalp hair specimens stored at
four degrees Celsius never attained the degree of PMRB as the
specimens stored at room temperature (id. at 16), which suggests
that,
like
correlated
decomposition
with
generally,
temperature
(see
id.
PMRB
at
9
development
(explaining
decomposition rates depend in part on temperature)).
second
approach,
Collins
obtained
post-mortem
is
that
In the
hairs
from
autopsies that had been conducted by the New York City Medical
(Id. at 13.)
Examiner’s office.
The lapse between a subject’s
death and the autopsy ranged from between twelve to eighty-seven
hours.
(Id. at 13-14.)
Collins did not observe PMRB in any of
these hairs, which, given the short interval between death and
autopsy, she felt was consistent with the findings in her first
study.
(Id.
at
16.)
Collins’
findings
support
Plaintiffs’
position but her second approach only studied twelve samples
(id. at 14), and it’s unclear how many samples she studied under
the
first
approach
(although
she
apparently
eliminated
hairs
from people being treated with chemotherapy and radiotherapy,
(id., Abstract)).
27
The
third
reason
that
the
Court
cannot
accept
Plaintiffs’ Experts’ opinions as scientific certainty is that
there have been at least two cases where PMRB has reportedly
been
observed
possible.
much
earlier
than
the
experts
would
think
As Petraco explained in his report, in two instances
in the mid-1980s, PMRB was observed between 8-12 and 10-12 hours
after death, respectively.
(Petraco Rpt. 5.)
Obviously, if
these incidents really happened, they would give lie to the idea
that PMRB invariably takes days to develop.
Plaintiffs attempt
to cast doubt on these early sightings by suggesting that the
times of death in those cases were imprecise, meaning that the
(See id. at
bodies could have been dead longer than 12 hours.
5.)
Plaintiffs may be correct, but the point is that we just
don’t know.
Plaintiffs fall back on the idea that these are
outliers and that their experts have never seen or heard of a
similar case.
actively
(See, e.g., id. (“In the 26 years I have been
following
this
issue
since
the
trial,
I
have
never
seen, read, or heard about a case of postmortem root banding
occurring within less than 8 hours after death.”).)
On this
point, though, Kadane’s concerns about autopsy bias are welltaken; if forensic scientists are not in a position to find PMRB
within a short time of someone’s death, they will never do so.
28
In
sum,
the
idea
that
PMRB
needs
multiple
days
to
develop cannot withstand the rigors of scientific proof, and it
goes
too
far
conclusions
for
are
certainty.”
Plaintiffs’
sound
to
a
Experts
to
“reasonable
testify
degree
that
of
their
scientific
See Glynn, 578 F. Supp. 2d at 574 (“[T]o allow
Detective Valenti, or any other ballistics examiner, to testify
that he had matched a bullet or casing to a particular gun ‘to a
reasonable
degree
of
ballistic
certainty’
would
seriously
mislead the jury as to the nature of the expertise involved.”).
That is not to say, however, that Plaintiffs’ Experts’ testimony
is completely excluded.
B. Are Plaintiffs’ Experts’ Opinions Otherwise Reliable?
Under Evidence Rule 702, witnesses with “technical or
other
specialized
matters
where
conclusion.”
Rakoff
the
knowledge”
may
data
short
on
In re Ephredra, 393 F. Supp. 2d at 188.
As Judge
art
proving
“opinions
witness’s
“an
of
their
the
explained,
falls
offer
appraiser
testifying
about
a
painting's authenticity might state an opinion based in part on
scientific analysis, but the ultimate conclusion would come from
the witness's specialized knowledge, training and experience.”
Id.
“Scientists,
reasonably
based
too,
on
form
‘good
professional
science’
29
but
opinions
where
the
that
data
are
is
insufficient
for
definitive
scientific
proof.”
Id.
In
the
Court’s view, at least, this is what we have here: much of what
Plaintiffs’ Experts have to say is grounded in sound science,
and the last leap--the timing--is justified by their training
and experience.
Aside
from
the
timing
issue,
Plaintiffs’
Experts’
testimony on PMRB is supported by many of Daubert’s indicia of
reliability.
One,
distinguished
from
rate of error.
conducted
a
there
is
evidence
banding
environmental
that
within
PMRB
an
can
be
acceptable
A group of FBI analysts, led by Stephen Shaw,
study
for
which
they
collected
600
hairs
and
subjected them to a range of environmental conditions.
Although
these
did
hairs
present PMRB.
exhibited
signs
of
decomposition,
they
not
These hairs were then mixed with hairs known to
have come from deceased subjects.
According to the abstract of
the study (whose publication is forthcoming), two hair examiners
were
able
to
distinguish
post-mortem
root-banded
hairs
from
environmentally-banded hairs with 99.5% accuracy. When the two
examiners
double-checked
increased to 100%.
each
other’s
work,
(See generally Pls. Ex. 12.)
say, this is a tolerable error rate.
accuracy
Suffice it to
See, e.g., United States
v. Crisp, 324 F.3d 261, 271 (4th Cir. 2003).
30
their
Further, the Shaw
study
is
generally
in
line
with
Alison
Domzalski’s
results,
which showed that although environmental insults produce changes
to scalp hair roots, these changes should not be confused with
PMRB.
(See
Domzalski
Paper
environmental
banding
“could
environmental
banding
that
proximal
criterion
study
to
the
for
anagen
postmortem
validates
at
be
49
(noting
confused”
Domzalski
root
root
Domzalski’s
end.
that
with
PMRB,
encountered
This
is
not
banding”);
Hrg.
research),
372
although
was
an
Tr.
the
“very
accepted
673
(Shaw
(environmental
banding can be distinguished from PMRB).)
Two, Plaintiffs’ Experts’ opinions are consistent with
the academic literature on the topic.
(See, e.g., Pls. Ex. 10
at 19 (“Postmortem head hair proximal end microscopic changes
are sufficiently specific for the experienced examiner to offer
an
opinion
that
an
evidence
hair
may
have
originated
from
decomposing scalp tissue.”); see also Pls. Ex. 6, S. Seta, H.
Sato, M. Yoshino and S. Miyasaka, “Morphological Changes of Hair
Root with the Time Lapsed After Death,” J.
OF THE
FORENSIC SCI. SOC.
24:4 (July/August 1984).)
Relatedly,
describe
it
is
a
three,
PMRB
generally
forensic science community.
as
accepted
Plaintiffs’
phenomenon
Experts’
within
the
(See, e.g., Pls. Ex. 12 (“Based on
31
the
experience
of
hair
examiners,
postmortem
banding
is
generally accepted throughout the forensic hair community as a
reliable
indication
of
hair
removal
during
the
postmortem
process.”); Petraco Rpt. at 4-5 (identifying basic principles of
PMRB
that
are
“established
in
the
forensic
scientific
community”); see also Hrg. Tr. 36-37 (“Q. Would it be fair to
say that since the Petraco De Forest publication in 1988, that
the way they defined and described [PMRB] was generally accepted
in
the
community
of
hair
microscopists
and
forensic
anthropologists as the definition of [PMRB]? A. Yes.” (Houck
Testim.)).) 5
5
Moreover, the Court notes that Houck and Petraco have examined
hairs both from living and dead subjects, and they have never
observed PMRB in hairs from a living person. (See Hrg. Tr. 81
(Houck); id. at 346, 358 (Petraco).) Just as significant, they
have never seen, heard, or read about a case where PMRB was
observed in hair from a living person. (Id. at 81 (Houck); id.
at 358 (Petraco).) Given their deep ties to the hair microscopy
community (see, e.g., id. at 24 (Houck), id. at 302-03
(Petraco)), this suggests that such a case has never been
observed. See also id. at 83-84 (Houck would expect to learn
through his professional network if another microscopist were to
observe PMRB in a hair plucked from a living person).
Defendants’ position--that Plaintiffs’ view is logically flawed
because Plaintiffs’ Experts look at hairs only from dead people
(during autopsies, for example)--is factually incorrect. Houck
and Petraco have examined hairs from both living and dead people
over their long and distinguished careers. (Id. at 167 (Houck);
id. at 346 (Petraco).)
32
The issue, then, in light of their testimony on PMRB
generally,
is
professional
concludes
whether
opinions
that
described above.
they
Plaintiffs’
on
may,
the
Experts
timing
of
consistent
may
offer
their
PMRB.
The
Court
with
the
limitation
Without repeating much of the evidence already
discussed in Section II.A, the Court is convinced that although
these facts do not add up to scientific proof, they supply a
reasonable basis for forensic experts to conclude that PMRB is
an artifact of decomposition and that, consistent with the speed
at which other effects of decomposition appear on a corpse, it
does not appear immediately after death.
The Collins Paper, the
gorilla study, the Linch & Prahlow Study (see supra 23-26), and
De Forest’s juxtaposition hypothesis (supra 13-14) all suggest
that PMRB takes more than a few hours to develop in the scalp
hairs of a dead body and thus it may be more likely than not
that the Q hairs in Restivo’s van did not come from Fusco on the
night she died.
(applying
issues).
a
See In re Ephedra, 393 F. Supp. 2d at 190
“more-probable-than-not”
standard
to
scientific
In sum, this is not a case where the Court “finds the
gap too great between the science and [Plaintiffs’ Experts’]
conclusions.”
Id. at 189; see also Kumho Tire, 526 U.S. at 156
(“[N]o one denies that an expert might draw a conclusion from a
33
set
of
observations
based
on
extensive
and
specialized
experience.”).
Defendants’ remaining objections go to the weight of
Plaintiffs’
Experts’
testimony,
not
its
admissibility.
Plaintiffs’ Experts may offer their opinions as to PMRB except
that they may not testify that their views on the timing of PMRB
(or any ultimate opinion that the Q hairs did not come from
Fusco
on
the
certainty.”
that
night
she
died)
are
matters
of
“scientific
See id. at 190 (precluding expert from testifying
causality
was
established
“to
a
reasonable
degree
of
scientific certainty” but permitting testimony that a particular
causality was plausible or “more-probable-than-not”).
III. Defendants’ Expert
Plaintiffs move to exclude Kadane’s testimony, arguing
that he is not qualified to opine on matters related to hair
microscopy, has not reliably applied any worthwhile methodology
to the facts of the case, and offers legal conclusions under the
(See generally Pls. Br. 9-17.)
guise of scientific expertise.
The
Court
expertise
agrees
to
offer
that
a
Kadane
helpful
does
not
have
opinion
at
trial.
the
relevant
For
expert
testimony to be admissible, it must have “a reliable basis in
the knowledge and experience of the relevant discipline.”
34
Kumho
Tire, 526 U.S. at 149 (alterations and quotation marks omitted).
Although
there
is
no
dispute
that
Kadane
is
an
accomplished
statistician, it is equally beyond debate that he lacks more
than a passing familiarity with hair microscopy and forensic
science.
His expertise is simply not useful in attempting to
refute Plaintiffs’ Experts’ opinions about PMRB.
Malletier v.
Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 642 (S.D.N.Y. 2007)
(“An expert qualified in one subject matter does not thereby
become an expert for all purposes.
Testimony on subject matters
unrelated to the witness's area of expertise is prohibited by
Rule 702.”).
As Plaintiffs note, Kadane was free to conduct his
own statistical analysis of PMRB but did not do so.
2).
35
(Pls. Br.
CONCLUSION
For
the
foregoing
reasons,
Defendants’
motion
to
exclude Plaintiffs’ experts is DENIED except to the extent that
the
discussion
above
precludes
Plaintiffs’
Experts’
testifying to any degree of “scientific certainty.”
motion
to
exclude
Defendant’s
statistics
expert
from
Plaintiffs’
is
GRANTED.
Defendants’ request to re-open the Daubert record (Docket Entry
289)
is
DENIED
because
the
evidence
Court’s attention is irrelevant.
to
which
they
call
the
Defendants’ motion to file
excess pages (Docket 229) is retroactively GRANTED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
August
15 , 2012
Central Islip, New York
36
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