Floyd et al v. The City of New York et al

Filing 278

OPINION AND ORDER: #103176 Defendants' expert is precluded from testifying to the opinions set forth in his report dated April 15, 2013 except as follows: (1) defendants' expert may testify to the opinions expressed at pages 26-31 of his report; (2) defendants' expert may testify concerning his belief regarding New York City's compliance with the Daniels settlement agreement to the extent that belief is a predicate for his opinion concerning the need for a court-appointed monitor. (Signed by Magistrate Judge Henry B. Pitman on 5/6/2013) (ft) Modified on 5/8/2013 (jab).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
DAVID FLOYD, et al.,

:
Plaintiffs,

THE CITY OF NEW YORK, et al.,

08 Civ. 1034 (SAS)(HBP)

:

-against-

:

OPINION
AND ORDER

:

Defendants.

:

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PITMAN, United States Magistrate Judge:

The Honorable Shira A. Scheindlin, United States
District Judge, has referred this matter to me to address the
admissibility of testimony from defendants' proposed remedies
expert, Mr. James K. Stewart.

For the reasons set forth below, I

find that Mr. Stewart's opinions, as set forth in his report
dated April 15, 2013, are, in large part, inadmissible.
The plaintiffs seek redress for defendants' allegedly
unconstitutional policy of conducting baseless stops and frisks.
The specific nature of plaintiffs' allegations and defendants'
responses are set forth in detail in Judge Scheindlin's decision
granting in part and denying in part defendants' motion for
summary judgment.
(S.D.N.Y. 2011).

Floyd v. City of New York, 813 F. Supp. 2d 417

The trial of this matter is currently proceeding before
Judge Scheindlin.

For reasons unrelated to the present dispute,

Judge Scheindlin has previously precluded defendants from offering expert testimony on the issue of liability and has limited
them to an expert on the issue of what remedies would be appropriate if the plaintiffs succeed in establishing liability.

On

or about March 5, 2013, plaintiffs served the report of their
remedies expert, Dr. Samuel Walker.

Defendants served the report

of their remedies expert, Mr. Stewart, on or about April 15,
2013.

By letter dated April 28, 2013, plaintiffs first sought to

preclude Mr. Stewart's testimony, arguing in principal part that
Mr. Stewart's opinions relate to liability and that defendants
are attempting to evade the preclusion order that Judge
Scheindlin previously entered.

Defendants, by letter dated May

1, 2013, argue in principal part that Mr. Stewart's report is
nothing more than a point-by-point rebuttal of Dr. Walker's
report.1
In his report, plaintiffs' expert sets forth in detail
the steps he believes are appropriate to remedy the stop and
frisk practices that plaintiffs claim violate the Constitution.

1

On May 3, 2013, I offered counsel the opportunity to
present oral argument concerning the dispute. Both sides
declined.
2

Specifically, plaintiffs' expert suggests a comprehensive remedial program that includes formal guidelines for stops and
frisks, a performance assessment system to measure compliance
with those guidelines, enhanced training concerning the guidelines (both for new recruits and ongoing training for officers in
the field), improved reporting of stops and frisks, close daily
supervision of patrol officers by sergeants, close supervision of
sergeants' supervisory activity, systematic review of stop and
frisk activities, an internal investigatory and disciplinary
process and a procedure for citizens to register complaints.

In

addition, plaintiffs' expert recommends that the court appoint a
monitor to ensure that the foregoing remedial measures are
properly implemented.
Defendants' expert does not claim that the plaintiffs'
suggestions lack merit, nor does he suggest alternative remedial
measures.

Rather, defendants' expert contends that the New York

City Police Department already utilizes most of the practices
suggested by plaintiffs' expert and that the practices in place
are sufficient to ensure compliance with the Constitutional
limitations on stops and frisks.

Defendants' expert appears to

be suggesting that there is no need for any remedial steps.
Judge Scheindlin would reach the issue of an appropriate remedy only if she found that New York City was engaging in a
3

practice of violating the Constitution.

If she did not make that

initial finding of liability, there would be no need to address a
remedy.

Yet, defendants' expert opines that the Police Depart-

ment's existing practices are sufficient to ensure that the
constitutional limitations on stops and frisks are observed.

If

defendants' expert were credited, the case would end with the
irreconcilable findings that the City of New York had a custom or
policy of violating the Constitution but, notwithstanding such
custom or policy, no remedy is necessary because existing monitoring and training programs are sufficient.
The true nature of defendants' proposed expert emerges
when it is recalled that plaintiffs are asserting claims against
the City of New York pursuant to Monell v. New York City Dep't of
Soc. Servs., 436 U.S. 658 (1978).

The parties' Joint Pre-Trial

Order (Docket Item 272) frames the Monell issue as follows:
Plaintiffs further contend that the suspicionless
and race-based stops-and-frisks of the named Plaintiffs
and Plaintiff class members are the result of policies
and/or widespread customs and practices of the City of
New York that encourage, sanction, and/or fail to
prevent such unconstitutional stops-and-frisks. These
practices include but are not limited to:
*
v.

*

*

A deliberately indifferent failure to adequately
train, supervise, monitor, and discipline officers
to ensure that they conduct stops-and-frisks in
compliance with the Constitution.

4

(Joint Pre-Trial Order (Docket Item 272) at 7).2

Rather than

addressing what remedies would be appropriate in the event
plaintiffs establish liability, defendants' expert is squarely
addressing the merits of the Monell claim, i.e., the adequacy of
existing training and monitoring protocols.

Because (1) Judge

Scheindlin has already precluded defendants from calling a
liability expert and (2) defendants' remedies expert is really
addressing liability issues, defendants' remedies expert is
precluded except as set forth in the following two paragraphs.
Plaintiffs' expert opines that implementation of his
proposed training and monitoring programs will not result in an
increase in crime or otherwise compromise public safety.

In

support of this conclusion, he relies on the experiences of the
police departments in other cities that have been subject to
consent decrees or similar court orders.

Defendants' expert

takes issue with plaintiffs' expert's interpretation of the
experiences in these other cities.

Testimony concerning the

relevance and meaning of the experiences of other cities is
appropriate rebuttal.

2

Although the statement quoted in the text is taken from the
section of the Pre-Trial Order entitled "Plaintiffs'
Contentions," defendants frame the issue in virtually identical
language (Pretrial Order (Docket Item 272) at 8-9).
5

Finally, defendants' expert seeks to offer an opinion
on whether the City of New York has complied with the settlement
agreement in Daniels v. City of New York, 99 Civ. 1695 (SAS).
Plaintiffs' expert states that he believes the evidence will
establish that the City did not comply with the settlement
agreement in Daniels, and he relies on that belief to justify his
opinion that a court-appointed monitor is necessary to ensure
that remedial steps are properly implemented.

Defendants'

expert, on the other hand, bluntly opines that the City has
complied with the settlement agreement in Daniels.

Whether the

City has complied with the settlement agreement in Daniels is not
an appropriate subject for either expert to address.

Both

experts have training and expertise in the area of police practices and criminal justice.

Neither is an attorney and neither

appears to have any training or experience that would enable them
to offer a helpful opinion on the issue of compliance with the
Daniels settlement agreement.

Plaintiffs' expert should be

permitted to testify as to his belief concerning the City's
compliance solely to explain his conclusion that a court-appointed monitor is necessary.

His testimony should not be

admitted to establish that the City did actually violate the
Daniels settlement agreement.

Similarly, if defendants' expert

wishes to offer his belief that the Daniels settlement agreement
6

was not violated as a basis for the conclusion that a courtappointed monitor is not necessary, he may do so.
Accordingly, defendants' expert is precluded from
testifying to the opinions set forth in his report dated April

15, 2013 except as follows:

(1) defendants' expert may testify

to the opinions expressed at pages 26-31 of his report;

(2)

defendants' expert may testify concerning his belief regarding
New York City's compliance with the Daniels settlement agreement
to the extent that belief is a predicate for his opinion concern­
ing the need for a court-appointed monitor. 3
Dated:

New York, New York
May 6, 2013
SO ORDERED

J.

HE~

/~

United States Magistrate Judge

Copies transmitted to:
All Counsel

3Although plaintiffs have raised other arguments in support
of their application to preclude, I do not address them because
it is not necessary to do so.
7