Schoolcraft v. The City Of New York et al

Filing 496

MEMORANDUM OF LAW in Support re: 495 MOTION to Preclude Expert Testimony. . Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Kurt Duncan(Shield No. 2483, Individually), William Gough(Tax Id. 919124, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Shantel James(Shield No. 3004 in his official capacity), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), The City Of New York. (Scheiner, Alan)

10 CV 6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO PRECLUDE EXPERT TESTIMONY
UNDER FEDERAL RULES OF EVIDENCE 702,
703, 402 AND 403 AND FEDERAL RULES OF
CIVIL PROCEDURE 26 AND 37.

ZACHARY W. CARTER

Corporation Counsel of the City of New York
Attorney for Defendants
100 Church Street
New York, N.Y. 10007
Of Counsel: Alan Scheiner
Tel: [phone]
Cheryl Shammas
Tel: [phone]
Kavin Thadani
Tel: [phone]
Matter #: 2010-033074

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iii
ARGUMENT
POINT I
PLAINTIFF’S PROFFERED EXPERT
TESTIMONY CONCERNING DEFENDANTS’
CONDUCT AND NYPD POLICIES AND
PRACTICES SHOULD BE PRECLUDED
UNDER RULES 702, 402 AND 403. ........................................................ 1
A. The standard for the admission of expert
testimony.............................................................................................. 2
B. Eterno and Silverman’s opinions are rife with
legal conclusions and factual inferences that
invade the province of the Court and the jury. .................................... 4
C. The experts’ testimony should be precluded
because it is a mere conduit for hearsay
evidence. .............................................................................................. 8
D. Eterno and Silverman should not be permitted
to testify about Department of Health and
Mental Hygiene data that they cannot produce
and have no expertise to understand. ................................................. 11
E. Eterno and Silverman use outdated
information, unsupported narratives,
incomplete information, and illogical leaps that
should cause this Court to reject their testimony
as inherently unreliable. ..................................................................... 12
1.

Eterno and Silverman offer irrelevant
conjectures without any supporting
research or documentation. .........................................................12

2.

The experts apply unsound and
unscientific methods that are less rigorous
than the methods applied in their field of
study. ...........................................................................................13

Page
a.
b.

F.

The experts use selective, unreliable
evidence and non-scientific methods. ................................13
The experts’ purported scientific
study of survey evidence does not
comport with the standards of rigor
they apply in social science work. .....................................15

The Experts’ purported opinions on police
procedure are also inadmissible. ........................................................ 17

G. The Court should exclude the proffered
testimony under F.R.E. 403 and F.R.E. 703
because it will be more prejudicial and
confusing than probative.................................................................... 18
POINT II
BECAUSE SCHOOLCRAFT VIOLATED A
COURT ORDER TO TURN OVER DATA
WHICH ETERNO AND SILVERMAN
CONSIDERED, AND THE EXPERTS LOST OR
DESTROYED ADDITIONAL DATA ON WHICH
THEY RELIED, THEIR TESTIMONY WHICH
CONCERNS THE SUPPRESSED DATA
SHOULD BE PRECLUDED. ................................................................... 19
POINT III
THE TESTIMONY OF MEDICAL EXPERTS
SHOULD BE PRECLUDED WHERE IT
CONTAINS INADMISSIBLE OPINIONS
ABOUT THE CONDUCT OF THE POLICE IN
THIS CASE WHICH ARE BEYOND THEIR
EXPERTISE AND WOULD INVADE THE
PROVINCE OF THE COURT AND JURY ............................................ 23
A. Dr. Lubit’s gives inadmissible opinions
invading the province of the Court and jury. .................................... 23
B. Dr. Levy gives inadmissible opinions invading
the province of the Court and jury. .................................................... 24
CONCLUSION ............................................................................................................................. 25

ii

Statutes

Page
TABLE OF AUTHORITIES

Cases

Pages

Advanced Analytics, Inc., v. Citigroup Global Markets, Inc.,
04 Civ. 3531(LTS)(HBP),
2014 U.S. Dist. LEXIS 41291 (S.D.N.Y. Mar. 26, 2014) .......................................................21
Aetna Life Ins. Co. v. Ward,
140 U.S. 76, 35 L. Ed. 371, 11 S. Ct. 720 (1891) ......................................................................6
Allen v. City of New York, 02 Civ. 4373,
2006 U.S. Dist. LEXIS 95802 (S.D.N.Y. Mar. 28, 2007) .......................................................9
Astra Aktiebolag v. Andrx Pharms., Inc.,
222 F. Supp. 2d 423 (S.D.N.Y. 2002)........................................................................................3
Bank of N.Y. Mellon v. WMC Mortg., LLC,
2015 U.S. Dist. LEXIS 108320 (S.D.N.Y. Aug. 17, 2015) .......................................................9
Bd. of Trs. of the Aftra Ret. Fund v. JPMorgan Chase Bank, N.A.,
2011 U.S. Dist. LEXIS 144382 (S.D.N.Y. Dec. 14, 2011) .......................................................6
Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc.,
141 F. Supp. 2d 320 (E.D.N.Y. 2001) .....................................................................................10
Bonton v. City of New York,
2004 U.S. Dist. LEXIS 22105 (S.D.N.Y. Nov. 3, 2004) .........................................................15
Boucher v. United States Suzuki Motor Corp.,
73 F.3d 18 (2d Cir. 1996) (per curiam) ............................................................................ 3-4, 12
Bourjaily v. United States,
483 U.S. 171 (1987) ...................................................................................................................3
Campbell v. Metro. Prop. & Cas. Ins. Co.,
239 F.3d 179 (2d Cir. 2001).......................................................................................................3
Cayuga Indian Nation v. Pataki,
83 F. Supp. 2d 318 (N.D.N.Y. 2000) .........................................................................................3
Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (9th Cir. 1993)..................................................................................................3, 4
Design Strategy, Inc. v. Davis,
469 F.3d 284 (2d Cir. 2006).....................................................................................................22

iii

Page
Delrosario v. City of New York, 07 Civ. 2027,
2010 U.S. Dist. LEXIS 20923 (S.D.N.Y. Mar. 4, 2010) .........................................................9

Di Bella v. County of Suffolk,
574 F. Supp. 151 (E.D.N.Y. 1983) ............................................................................................6
Donnelly v. Ford Motor Co.,
No. CV-97-7405, 1999 U.S. Dist. LEXIS 20255 (E.D.N.Y. Dec. 30, 1999) ............................3
Faryniarz v. Nike, Inc.,
00 Civ. 2623, 2002 U.S. Dist. LEXIS 15825 (S.D.N.Y. Aug. 23, 2002) ..................................4
Floyd v. City of New York,
959 F. Supp. 2d 540 (S.D.N.Y. Aug. 12, 2013) .....................................................................2, 9
Garcia v. City of New York,
2013 U.S. Dist. LEXIS 147149 (E.D.N.Y. July 17, 2013) ......................................................18
General Electric Co. v. Joiner,
522 U.S. 136 (1997) ...............................................................................................................3, 4
Giles v. Rhodes,
94 Civ. 6385 (CSH), 2000 U.S. Dist. LEXIS 13980 (S.D.N.Y. Sept. 26, 2000).......................3
GlobalRock Networks, Inc. v. MCI Communs. Servs.,
943 F. Supp. 2d 320 (N.D.N.Y 2013) ........................................................................................5
Griffin v. City of N. Y.,
287 F. Supp. 2d 392 (S.D.N.Y. 2003) ......................................................................................9
Grdinich v. Bradlees,
187 F.R.D. 77 (S.D.N.Y. 1999) .................................................................................................6
Great White Bear, LLC v. Mervyns, LLC,
2008 U.S. Dist. LEXIS 41977 (S.D.N.Y. May 27, 2008)........................................................22
Hygh v. Jacobs,
961 F.2d 359 (2nd Cir. 1992).....................................................................................................5
In re Initial Pub. Offering Secs. Litig.,
174 F. Supp. 2d 61 (S.D.N.Y. 2001)..........................................................................................6
Kumho Tire v. Carmichael,
526 U.S. 137 (1999) .........................................................................................................3, 4, 15
iv

Page
Ligon v. City of New York (In re Reassignment of Cases),
736 F.3d 118 (2d Cir. 2013) ....................................................................................................10
LinkCo, Inc. v. Fujitsu Ltd.,
2002 U.S. Dist. LEXIS 12975 (S.D.N.Y. July 15, 2002) ..........................................................6
Lippe v. Bairnco Corp.,
288 B.R. 678 (S.D.N.Y. 2003) ...................................................................................................5
Lyondell-Citgo Ref., LP v. Petroleos de Venez, S.A.,
No. 02 Civ. 0795 (CBM), 2005 U.S. Dist. LEXIS 3635 (S.D.N.Y. Mar. 9,
2005) ........................................................................................................................................21
Malletier v. Dooney & Bourke, Inc.,
525 F. Supp. 2d 558, 666 (S.D.N.Y. 2007)..............................................................................10
Marvel Characters, Inc. v. Kirby,
726 F.3d 119 (2d Cir. 2013)........................................................................................... 8, 10-11
Marx & Co. v. Diners Club, Inc.,
550 F.2d 505 (2d Cir. 1976).......................................................................................................5
Maurizio v. Goldsmith,
96 Civ. 4332 (RPP), 2002 U.S. Dist. LEXIS 6032 (S.D.N.Y. Apr. 9, 2002) .........................13
McAllister v. N. Y. City Police Dep't,
49 F. Supp. 2d 688 (S.D.N.Y. 1999) .........................................................................................9
Media Alliance, Inc. v. Mirch,
2012 U.S. Dist. LEXIS 6332 (N.D.N.Y Jan. 19, 2012) ............................................................9
MTX Communs. Corp. v. LDDS/WorldCom, Inc.,
132 F. Supp. 2d 289 (S.D.N.Y. 2001)......................................................................................12
Nimely v. City of New York,
414 F.3d 381 (2d Cir. 2005)................................................................................... 6-7, 7, 11, 18
Nipper v. Snipes,
7 F.3d 415 (4th Cir. 1993) .......................................................................................................10
Pan Am World Airways v. Port Authority,
995 F.2d 5 (2d Cir. 1993)................................................................................................... 11-12
Pluma v. City of New York,
2015 U.S. Dist. LEXIS 48134 (S.D.N.Y. Mar. 31, 2015) .......................................................14

v

Page
Reilly v. Natwest Mkts. Grp. Inc.,
181 F/3d 253 (2d Cir. 1999) ....................................................................................................21
R.F.M.A.S., Inc. v. Mimi So,
748 F. Supp. 2d 244 (S.D.N.Y. 2010)......................................................................................15
Retil Sundown, Inc. v. Ferrigo Co.,
651 F. Supp. 2d 9 (E.D.N.Y. 2009) .........................................................................................10
In re Rezulin PrShatods. Liab. Lit.,
309 F. Supp. 2d 531 (S.D.N.Y. 2004)..................................................................................6, 16
Rizzo v. Edison, Inc.,
172 Fed. Appx. 391 (2d Cir. 2006) ............................................................................................6
Royal & Sun Alliance Ins. PLC v. UPS Supply Chain Solutions, Inc.,
2011 U.S. Dist. LEXIS 97715 (S.D.N.Y. Aug. 31, 2011) .......................................................23
Schering Corp. v. Pfizer Inc.,
189 F.3d 218 (2d Cir. N.Y. 1999) ............................................................................................11
Scott v. City of New York,
591 F. Supp. 2d 554, 563 (S.D.N.Y. 2008) ...............................................................................9
Shan Zhao v. Kaleida Health,
2007 U.S. Dist. LEXIS 103253 (W.D.N.Y. Aug. 8, 2007) .....................................................24
Shatkin v. McDonnell Douglas Corp.,
727 F.2d 202 (2d Cir. 1984).......................................................................................................4
Smith v. Xerox Corp.,
196 F.3d 358 (2d Cir. N.Y. 1999) ............................................................................................15
Song v. Yao Bros. Group LP,
2012 U.S. Dist. LEXIS 62235 (S.D.N.Y. May 1, 2012)..........................................................13
Stagl v. Delta Air Lines,
117 F.3d 76 (2d Cir. 1997).......................................................................................................12
United States v. Charley,
189 F.3d 1251 (10th Cir. 1999) .................................................................................................7
United States v. Dukagjini,
326 F.3d 45 (2d Cir. 2002).......................................................................................................12

vi

Page
United States v. Duncan,
42 F.3d 97 (2d Cir. 1994)...........................................................................................................5
United States v. Mejia,
545 F.3d 179 (2d Cir. 2008)...................................................................................................5, 9
United States v. Scop,
846 F.2d 135 (2d Cir. 1998).......................................................................................................7
Universal Calvary Church v. City of New York,
2000 U.S. Dist. LEXIS 15153 (S.D.N.Y. Oct. 13, 2000) ..........................................................6
Update Art, Inc. v. Modin Publ’g, Ltd.,
843 F.2d 67 (2d Cir. 1988).......................................................................................................21
Vanderwoude v. City of New York,
2014 U.S. Dist. LEXIS 79064 (S.D.N.Y. June 10, 2014)..........................................................6
Statutes
4 Weinstein’s Fed. Evid. § 702.04[6] ............................................................................................11
Mental Hygiene Law § 9.41.........................................................................................................1, 5
Fed. R. Civ. P. 16 ..........................................................................................................................21
Fed. R. Civ. P. 26(a) ......................................................................................................................22
Fed. R. Civ. P. 26(a)(2)(B) ...........................................................................................................12
Fed. R. Civ. P. 26(e)(2) ............................................................................................................16, 22
Fed. R. Civ. P. 37 ...........................................................................................................................21
Fed. R. Civ. P. 37(c)(1) ..................................................................................................................22
Fed. R. Evid. 104(a) .........................................................................................................................3
Fed. R. Evid. 402 .......................................................................................................................1, 24
Fed. R. Evid. 403 .......................................................................................................1, 2, 10, 17, 18
Fed. R. Evid. 702 .......................................................................................................1, 2, 3, 4, 7, 17
Fed. R. Evid. 703 ...............................................................................................................10, 17, 18
Treatises
vii

Page
30 Charles Alan Wright, Arthur R. Miller & Kenneth W. Graham, Jr., Federal
Practice and Procedure: Evidence § 6337 ........................................................................... 8-9
Other Citations
http://www.nyc.gov/html/nypd/html/faq/faq_police.shtml#1 ......................................................13
J. Eterno, A. Verman & E. Silverman, Police Manipulations of Crime Reporting:
Insiders’ Revelations, Justice Quarterly (published online Nov. 17, 2014) ....14, 15, 16. 20, 21

viii

The City defendants respectfully submit this Memorandum of Law in support of their
motion to preclude the expert testimony specified herein.
ARGUMENT
POINT I
PLAINTIFF’S
PROFFERED
EXPERT
TESTIMONY
CONCERNING DEFENDANTS’ CONDUCT AND NYPD
POLICIES AND PRACTICES SHOULD BE PRECLUDED
UNDER RULES 702, 402 AND 403.
The plaintiff offers John Eterno and Eli Silverman1 to testify on a potpourri of issues, as
follows: (i) the expert’s findings of fact and conclusions of law, based on a highly selective review
of evidence, that the police violated the Fourth Amendment in entering Schoolcraft’s apartment,
suspending Schoolcraft, and taking him into custody for a mental health evaluation pursuant to
Mental Hygiene Law § 9.412; (i) media reports that the experts say indicate that the NYPD used
quotas or manipulated crime statistics, and has retaliated against two specific officers other than
Schoolcraft (Borelli and Polanco) for reporting that; (ii) a report from 1994 that the experts say
shows an NYPD culture of corruption and retaliation in 1994; (iii) press releases of police unions
that the experts say indicate that NYPD uses quotas and engages in crime statistics manipulation;
(iv) media reports that the experts say reflect a “lack of transparency” of the NYPD; (v) the facts
1

The Expert Report (cited as “Report”) of John Eterno and Eli Silverman is submitted herewith as Exhibit A to the
Declaration of Alan H. Scheiner in Support of the City Defendant’s Motion to Preclude Expert Testimony (cited as
“Scheiner Dec.”); Exhibits to the Scheiner Dec. are referred to as “Ex.”; plaintiff’s trial exhibits are referred to as
“PTX.” Excerpts of the depositions of Silverman and Eterno are submitted herewith as Exs. B (“Silverman Dep.”) and
C (“Eterno Dep.”). These experts – offered as a tag-team which authored a single report – are authors with recent
writings critical of NYPD policies under Compstat. Eterno received a PhD in Criminal Justice from SUNY Albany in
1999 and has taught at Molloy College in Rockville Centre, New York since 1999. Report CV 1. Silverman is not
employed, and received a PhD from Pennsylvania State University, but his curriculum vitae does not give the subject
matter or the year it was received. Report, Silverman CV at 1. Neither is a lawyer, has any medical or mental health
training, or recent training in police enforcement tactics (Silverman has no such training). Report, Siverman CV,
Eterno CV; Eterno Dep. 16:24-17:6, 174:15-175:1, 187:16-20; Silverman Dep. 32:17-22; 65:10-17, 177:12-178:21.
2

New York’s Mental Hygiene Law § 9.41 provides: “Any peace officer, when acting pursuant to his or her special
duties, or police officer who is a member of the state police or of an authorized police department or force or of a
sheriff’s department may take into custody any person who appears to be mentally ill and is conducting himself or
herself in a manner which is likely to result in serious harm to the person or others.”

and legal conclusions found in the court’s decision after a bench trial in Floyd v. City of New York,
959 F. Supp. 2d 540 (S.D.N.Y. Aug. 12, 2013); (vi) the expert’s conclusions placed on purported
health data that the expert’s cannot provide and which they lack the expertise to understand; and
(vii) the expert’s conclusions that Compstat caused increased pressure to engage in police activity
and downgrade criminal complaints, based on media reports and a flawed review of anonymous
survey responses.
None of this blunderbuss attack is admissible in federal court. The proffered expert
testimony of John Eterno and Eli Silverman should be excluded because: (A) the testimony is
riddled with conclusions of law and findings of fact invading the province of the court and jury,
offering little more than a summation from the witness stand; (B) the experts offer to feed the jury
a hearsay soup, without adding any expert analysis that would be helpful; (C) the testimony is
based on absent or improper methodology that does not meet the standards of rigor in the expert’s
putative field; and (D) the testimony is irrelevant or to the extent relevant, is inadmissible under
Rule 403 because any probative value is outweighed by prejudice and the risk of juror confusion.3
A.

The standard for the admission of expert testimony.

Rule 702 of the Federal Rules of Evidence sets out the standard of admissibility for
experts. The rule provides:
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 as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
3

The City defendants also renew and incorporate their prior motion to require the plaintiff to designate one or the
other expert for trial on the grounds that their testimony would be duplicative if both were offered. See Docket No.
482.

2

Fed. R. Evid. 702.
In short, the Court must “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 v.
Carmichael, 526 U.S. 137, 152 (1999). This inquiry addresses the concern that “the proffered
testimony has a sufficiently ‘reliable foundation’ to permit it to be considered.” Campbell v.
Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 184 (2d Cir. 2001) (quoting Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 597 (9th Cir. 1993)).
The proponent of expert testimony must establish its admissibility. See Astra Aktiebolag v.
Andrx Pharms., Inc., 222 F. Supp. 2d 423, 487 (S.D.N.Y. 2002) (citing Fed. R. Evid. 104(a) and
Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)); Cayuga Indian Nation v. Pataki, 83 F.
Supp. 2d 318, 322 (N.D.N.Y. 2000) (“It is the proponent’s burden . . . to establish admissibility,
rather than the opponent’s burden to establish inadmissibility.” (internal quotations omitted));
Giles v. Rhodes, 94 Civ. 6385 (CSH), 2000 U.S. Dist. LEXIS 13980 (S.D.N.Y. Sept. 26, 2000)
(proponent of expert testimony bears the burden of demonstrating that it is “competent and
reliable”).
The trial judge’s “gate keeping” obligation applies not only to “scientific” testimony but to
“technical” and “other specialized” knowledge as well. Kumho Tire, 526 U.S. at 141. Where
there is “simply too great an analytical gap between the data and the opinion proffered,” the
testimony should be excluded. General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997); see
Donnelly v. Ford Motor Co., No. CV-97-7405, 1999 U.S. Dist. LEXIS 20255, at *9 (E.D.N.Y.
Dec. 30, 1999). The qualification of a witness to testify as an expert is a determination to be made
by the trial court. Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (per

3

curiam).4 “Opinion evidence that is connected to existing data only by the ipse dixit of the expert”
should not be admitted. Kumho Tire, 526 U.S. at 157 (citing Joiner, 522 U.S. at 146).
Speculative and conjectural expert testimony is inadmissible under Daubert and its
progeny. See Boucher, 73 F.3d at 21(citing Shatkin v. McDonnell Douglas Corp., 727 F.2d 202,
208 (2d Cir. 1984)); Faryniarz v. Nike, Inc., 00 Civ. 2623, 2002 U.S. Dist. LEXIS 15825, *3
(S.D.N.Y. Aug. 23, 2002).
B.

Eterno and Silverman’s opinions are rife with legal conclusions and factual
inferences that invade the province of the Court and the jury.

Eterno and Silverman’s testimony should be precluded because it would invade the
exclusive province of the court and jury. The experts would testify, based on a selective review of
the evidence plaintiff chose to give them, that the defendants violated the Fourth Amendment
when they entered Schoolcraft’s apartment and took him into custody under the Mental Health
Law as an Emotionally Disturbed Person. Report at 9-11. Eterno declares that Schoolcraft’s
“basic 4th Amendment rights appear to have been violated,” because there were no “exigent
circumstances” and no reason to believe he was dangerous. Report at 11.5 The experts appear to
confuse the role of expert and advocate, offering the following closing argument, which is only
one example of their proffered advocacy:
Lastly, we also question the initial entry into the apartment. What
was the exigent circumstance? If it was his health, once Officer
Schoolcraft was seen in the apartment in good condition, the
emergency no longer existed and the officers should have
4

A court will usually consider the following factors in determining whether the expert’s methodology meets the
standards of Fed. R. Evid. 702 and Daubert: (a) whether a “theory or technique... can be (and has been) tested;” (b)
whether it “has been subjected to peer review and publication;” (c) whether, in respect to a particular technique, there
is a high “known potential rate of error” and whether there are “standards” controlling the application of the
technique; and (d) whether the theory or technique enjoys “general acceptance” within a “relevant scientific
community.” Kumho Tire, 526 U.S. at 149 (citing Daubert, 509 U.S. at 592-94).
5

Silverman admits that he has no expertise on which to base such an opinion and does not offer it. Silverman Dep.
65:10-17; 177:12-178:15.

4

immediately vacated. If any actions appeared “emotionally
disturbed” they occurred after they entered the apartment. In fact, if
they occurred, they apparently were the direct result of the actions
of NYPD. Having a team of armed officers and EMT’ s in your
home, all refusing to leave, remaining in the apartment without
permission would likely upset any normal person. In fact, Officer
Schoolcraft’s basic 4th Amendment rights appeared to have been
violated in terms of protecting his property (the tape recorder),
armed officers and EMT’s not leaving his apartment, and forcibly
removing him from his apartment without justification.
Report 11 (emphasis added).6

Plaintiff might as well have hired another trial lawyer to deliver this “summation from the
witness stand.” Lippe v. Bairnco Corp., 288 B.R. 678, 688 (S.D.N.Y. 2003) (precluding expert
whose testimony amounted to advocacy). Advocate-witnesses that merely summarize evidence,
draw inferences, and “tell the jury what result to reach” are not admissible. Hygh v. Jacobs, 961
F.2d 359, 363-64 (2nd Cir. 1992) (police practices expert’s testimony that defendants conduct was
“totally improper” and not “justified” or “warranted” should have been excluded because it
“merely [told] the jury what result to reach”); see also United States v. Duncan, 42 F.3d 97, 101
(2d Cir. 1994); United States v. Mejia, 545 F.3d 179, 196, 208 (2d Cir. 2008) (purported gang
expert gave inadmissible “factual testimony about matters that required no specialized
knowledge”); Marx & Co. v. Diners Club, Inc., 550 F.2d 505, 508-12 (2d Cir. 1976) (expert
testimony of business practices should have been excluded where testimony contained conclusions
of law about the propriety of defendants’ conduct and opinions on the relevance of factual
evidence); GlobalRock Networks, Inc. v. MCI Communs. Servs., 943 F. Supp. 2d 320, 343
(N.D.N.Y 2013) (expert witness may not invade the province of the jury on the facts or the court

6

Even were the opinion couched in reference to the NYPD’s Patrol Guide section applicable to Emotionally
Disturbed Persons, because that section tracks the Mental Hygiene Law very closely, there is no difference between
the expert saying that the Patrol Guide was violated and saying that the officers lacked probable cause. See Ex. __
(PTX 159, EDP Patrol Guide Procedure 216-05); NY Mental Hygiene Law § 9.41.

5

on the law); LinkCo, Inc. v. Fujitsu Ltd., 2002 U.S. Dist. LEXIS 12975 (S.D.N.Y. July 15, 2002)
(same); In re Initial Pub. Offering Secs. Litig., 174 F. Supp. 2d 61, 64 (S.D.N.Y. 2001) (same);
Grdinich v. Bradlees, 187 F.R.D. 77, 82 (S.D.N.Y. 1999) (same).
Conclusions of law, and specifically opinions on the presence or absence of probable cause
– the main issue in this case – are not admissible from experts. See, e.g., Rizzo v. Edison, Inc., 172
Fed. Appx. 391, 395 (2d Cir. 2006) (summary order) (“The judge is both uniquely qualified and
uniquely tasked to make the legal determination of what constitutes probable cause; an expert
cannot assist in this task, at the summary judgment phase or at trial.”); Vanderwoude v. City of
New York, 2014 U.S. Dist. LEXIS 79064, *31-34 (S.D.N.Y. June 10, 2014) (same); Universal
Calvary Church v. City of New York, 2000 U.S. Dist. LEXIS 15153, *28 (S.D.N.Y. Oct. 13, 2000)
(same); Di Bella v. County of Suffolk, 574 F. Supp. 151, 153 (E.D.N.Y. 1983) (same).
Moreover, “[i]nferences about the intent or motive of parties or others lie outside the
bounds of expert testimony.” In re Rezulin Prods. Liab. Lit., 309 F. Supp. 2d 531, 547, 546-50
(S.D.N.Y. 2004) (excluding expert testimony that purported to tell the jury the “real motives”
behind defendants conduct and repeats the facts or opinions stated by other witnesses or reflected
in documents produced in discovery); Bd. of Trs. of the Aftra Ret. Fund v. JPMorgan Chase Bank,
N.A., 2011 U.S. Dist. LEXIS 144382, *26 (S.D.N.Y. Dec. 14, 2011) (“There is no dispute that
opinions concerning state of mind are an inappropriate topic for expert opinion. Accordingly, any
such statements will not be permitted at trial.”). In addition, “[i]t is a well-recognized principle of
our trial system that “determining the weight and credibility of [a witness’s] testimony. . . .
belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their
practical knowledge of men and the ways of men . . . .” Nimely v. City of New York, 414 F.3d 381,
397-398 (2d Cir. 2005) (quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88, 35 L. Ed. 371, 11 S.

6

Ct. 720 (1891)); see also United States v. Scop, 846 F.2d 135, 142 (2d Cir. 1998) (same). “Thus,
[the Second Circuit], echoed by our sister circuits, has consistently held that expert opinions that
constitute evaluations of witness credibility . . . are inadmissible under Rule 702.” Nimely, 414
F.3d at 398; see also, e.g., United States v. Charley, 189 F.3d 1251, 1267 (10th Cir. 1999).
The experts overstep these clear bounds so frequently that their advocacy taints their entire
testimony. For example:
Fully crediting without analysis testimony of the plaintiff:

Conclusions about the veracity, motives and intentions of the parties:

Arguing for inferences from evidence that would be intelligible to a layperson without the aid
of expert testimony:

7

All of these opinions are improper under the standards set forth above. 9
C.

The experts’ testimony should be precluded because it is a mere conduit for
hearsay evidence.

As the Second Circuit has held, “a party cannot call an expert simply as a conduit for
introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his
testimony.” Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. 2013) (citation omitted);
see 30 Charles Alan Wright, Arthur R. Miller & Kenneth W. Graham, Jr., Federal Practice and
Procedure: Evidence § 6337 (“[A]n expert cannot be called solely as a conduit for smuggling

7

This assertion is not founded in any NYPD procedure and is only the expert’s opinion on what is “prudent.” Report
11; Eterno Dep. 189:2-14.
8

This conclusory factual testimony is not based on evidence, but rather “media reports.” Eterno Dep. 116:13-17. See
infra at 9-10.

9

Eterno’s testimony was ruled partly admissible in only one case, brought under the Fair Labor Standards Act, and
the Court ruled inadmissible the same “substitution of expert opinion for factual evidence,” “unsubstantiated opinions
or personal knowledge based on unidentifiable sources,” and “common knowledge” that Eterno offers here. Scott v.
City of New York, 591 F. Supp. 2d 554, 563 (S.D.N.Y. 2008) (citations omitted). Silverman has never been qualified
as an expert in court.

8

hearsay to the jury.”).10 But that is precisely what plaintiff seeks to do here.
The expert report refers generally to “media reports” or “media accounts” – quoting a news
report that quoted an anonymous email – and list citations to journalistic books and newspapers
articles. Report 4-8, 29; Eterno Dep. 82:8-12, 99:22-100:3. These media accounts are hearsay that
are inadmissible to prove a municipal policy.11 The experts also rely on union advocacy
statements that they quote in full. Report 5-6. The experts resort even to citing “general
knowledge.” Id. 102:11-17. Eterno opines that police officers make illegal stops due to the
pressure of quotas, but refers only to “anecdote[es],” “media accounts,” and union statements as
the basis for his knowledge. Eterno Dep. 91:14-92:4. Eterno relies on alleged interviews with
former police officers for which he provides no notes. Eterno Dep. 69:6-15. In failing to produce
supporting data, plaintiff’s counsel admitted that the opinions about officers other than Schoolcraft
were based only on “anecdotal evidence” and “common knowledge.” Ex. E (Email Chain) at 7.
In all cases, the experts assume that the hearsay supporting their views is accurate. Eterno and
Silverman also rely on “court decisions,” although they mention one: Floyd v. City of New York.12
Report 4.13 Court decisions are hearsay, and are not admissible in Court for the truth of their
findings or recitations of the evidence found therein. See Blue Cross and Blue Shield of New
10

See also Bank of N.Y. Mellon v. WMC Mortg., LLC, 2015 U.S. Dist. LEXIS 108320, *21 (S.D.N.Y. Aug. 17, 2015)
(holding expert testimony inadmissible that relied on unreliable hearsay) (quoting United States v. Mejia, 545 F.3d
179, 197 (2d Cir. 2008) (citation omitted) (emphasis added)).
11

“Newspaper articles are hearsay when introduced to prove the truth of the matter asserted, and also must not be
admitted. Delrosario v. City of New York, 07 Civ. 2027, 2010 U.S. Dist. LEXIS 20923, at *18-19 (S.D.N.Y. Mar. 4,
2010) (citing Griffin v. City of N. Y., 287 F. Supp. 2d 392, 395 n,8 (S.D.N.Y. 2003) and McAllister v. N. Y. City Police
Dep't, 49 F. Supp. 2d 688, 706 n.12 (S.D.N.Y. 1999)); Media Alliance, Inc. v. Mirch, 2012 U.S. Dist. LEXIS 6332, 34 (N.D.N.Y Jan. 19, 2012) (same); see also Allen v. City of New York, 02 Civ. 4373, 2006 U.S. Dist. LEXIS 95802, at
*77 (S.D.N.Y. Mar. 28, 2007) (CNN article is hearsay and also insufficient to establish a municipal policy or custom).
12

The Second Circuit removed the District Judge who issued the Floyd from the case to avoid an appearance of an
absence of impartiality, and stayed the effect of the decision. Ligon v. City of New York (In re Reassignment of
Cases), 736 F.3d 118, 126 (2d Cir. 2013).
13

In addition to Floyd, the plaintiff lists a labor arbitration decision relating to quotas on his exhibit list as PTX 93;
that decision should also be excluded from evidence as hearsay.

9

Jersey, Inc. v. Philip Morris, Inc., 141 F. Supp. 2d 320, 323 (E.D.N.Y. 2001) (“Judicial findings in
other cases proffered as evidence are generally characterized as inadmissible hearsay.”); Retil
Sundown, Inc. v. Ferrigo Co., 651 F. Supp. 2d 9, 36 (E.D.N.Y. 2009) (same); see also Nipper v.
Snipes, 7 F.3d 415, 417-18 (4th Cir. 1993) (same).14
While an expert may rely on hearsay if applying an expert methodology beyond the ken of
the jury that would be helpful (e.g., interpretation of epidemiological data), the experts here apply
no expertise or methodology to the hearsay other than to believe it without question and pass it on
to the jury. Eterno and Silverman’s opinions are strikingly similar to the testimony of two putative
historians ruled inadmissible by the district court and the Second Circuit in Marvel Characters,
Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. N.Y. 2013). In Marvel, the plaintiff offered the
historians to give testimony on Marvel’s relationship with the illustrator Jack Kirby. The Second
Circuit held in a ruling fully applicable to Eterno and Silverman:
Although the Rules permit experts some leeway with respect to
hearsay evidence, Fed. R. Evid. 703, “a party cannot call an expert
simply as a conduit for introducing hearsay under the guise that the
testifying expert used the hearsay as the basis of his testimony.”
Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 666
(S.D.N.Y. 2007). The appropriate way to adduce factual details of
specific past events is, where possible, through persons who
witnessed those events. And the jobs of judging these witnesses’
credibility and drawing inferences from their testimony belong to
the factfinder. See Nimely v. City of New York, 414 F.3d 381, 397-98
(2d Cir. 2005).
Id. (emphasis added). This court should follow Marvel and exclude plaintiff’s NYPD ‘historians’
here.15

14

Even were the Court to find evidence of the Floyd decision admissible, which it is not, it should be precluded
because its prejudicial effect would outweigh any probative value under Fed. R. Evid. 403.
15

Even the expert’s survey results here are a mere collection of hearsay, like a packet of anonymous letters, sorted in
such a manner as to emphasize perceived trends. A party may not prove the truth of a fact in dispute – here whether
the NYPD had quotas or manipulated statistics – by citing survey responses for the truth of their views on those
questions. See Schering Corp. v. Pfizer Inc., 189 F.3d 218, 227-230 (2d Cir. N.Y. 1999) (distinguishing between

10

D.

Eterno and Silverman should not be permitted to testify about Department of
Health and Mental Hygiene data that they cannot produce and have no
expertise to understand.

Eterno and Silverman also rely heavily on data that they say was posted by the Department
of Health and Mental Hygiene on the internet regarding the number of “assaults” and “firearms
assaults” reported in emergency rooms. Report 11-12. Yet neither expert boasts any medical
expertise whatsoever. Eterno Dep. 187:14-15; Silverman Dep. 178:16-17; Silverman Dep.
179:24-180:4. They cannot even find the alleged health data on which they rely. Silverman Dep.
178:22-279:23; Ex E (Email Chain) at 7. To fail to keep data relied upon for purportedly
scientific purposes does not meet minimum standards of reliability.
But since the experts have no training or experience in medicine or public health, they
could not even know how incomparable the data really is. They do not know how the data was
compiled; how “assaults” or “firearms assaults” are defined for the purposes of compiling the data.
Especially where the experts and plaintiff could not or would not provide the data set, the Court
should not accept an expert’s opinion that is no better than a laypersons uninformed, superficial
inference from the word “assault.”
The testimony is inadmissible because it takes the experts well beyond their declared field
of expertise. See 4 Weinstein’s Fed. Evid. § 702.04[6] (an expert qualified in one area should not
be permitted to testify in other areas where qualifications are insufficient) (citing Pan Am World
Airways v. Port Authority, 995 F.2d 5, 13 (2d Cir. 1993)); Stagl v. Delta Air Lines, 117 F.3d 76,
81 (2d Cir. 1997) (expertise insufficiently tailored to the facts of this case); United States v.
Dukagjini, 326 F.3d 45, 58 (2d Cir. 2002) (error for district court to admit testimony of expert
which strayed from his expertise). Moreover, if an expert opinion includes assumptions that are in
surveys used to show state of mind and those used to show other facts which are inadmissible hearsay). That is exactly
what plaintiff, through Eterno and Silverman, attempt to do here.

11

essence “apples and oranges comparison[s]” – such as that medical and crime data are comparable
– it should be precluded. Boucher, 73 F.3d at 22; see also MTX Commc’ns. Corp. v.
LDDS/WorldCom, Inc., 132 F. Supp. 2d 289, 291-93 (S.D.N.Y. 2001) (expert relied upon inapt
“analogs,” unverified information and “unreasoned, untestable information” and was therefore
precluded).
E.

Eterno and Silverman use outdated information, unsupported narratives,
incomplete information, and illogical leaps that should cause this Court to
reject their testimony as inherently unreliable.
1.

Eterno and Silverman offer irrelevant conjectures without any
supporting research or documentation.

Eterno and Silverman’s main thesis is that the creation of Compstat in 1994 increased
pressure on commanders and therefore lower level officers to increase police activity and
manipulate crime statistics downward. This theory is rendered in a broad historical and political
sweep having no connection to this case. For example, they write in their Report:
Since 2002, political and police pressure mounted to sustain the crime
reduction phenomenon of previous years. Up until l2002, the first year
of Mr. Bloomberg’s administration, crime was already down 60
percent. Leveling off was not considered an official option. Demands to
produce numbers have triggered the expansion of NYPD activities that
“work” but without maintaining an eye on the structural health of the
organization. . . . .Massive deployment to address quality-of-life
crimes becomes favored over more surgical strikes. Inadequate
evaluation and tactical intensification has also been accompanied by
increased centralization. . . . . But centralization now has a powerful
weapon in its arsenal—Compstat.
Report 24. Nothing is cited for these and other sweeping assertions of fact. Eterno and Silverman
make even more specific allegations without support, such as that commanders are reassigned because
of their lack of performance at Compstat meetings. See Report 3; Eterno Dep. 71:6-72:24. This does
not meet the standards for expert testimony because it is unsupported by anything but the experts’ ipse
dixit. See Song v. Yao Bros. Group LP, 2012 U.S. Dist. LEXIS 62235, *4 (S.D.N.Y. May 1, 2012)

(excluding expert where report did not cite data or sources and only conclusions) (citing Maurizio
12

v. Goldsmith, 96 Civ. 4332 (RPP), 2002 U.S. Dist. LEXIS 6032, at *12-13 (S.D.N.Y. Apr. 9,
2002) (permitting an expert to testify where “no supporting facts or data are provided, would make
a mockery of Rule 26(a)(2)(B)”)).
2.

The experts apply unsound and unscientific methods that are less
rigorous than the methods applied in their field of study.

The experts betray in several respects that they are advocates not scientists in this case.
a.

The experts use selective, unreliable evidence and non-scientific
methods.

The experts’ advocacy is also based on a highly selective review of the evidence. For
example:

These examples of slipshod and selective methods undercut any claim of scientific
techniques or any other admissible methodology.

16

Schoolcraft lists as a trial exhibit Schoolcraft an undated IAB report which is undated and unauthenticated. Ex __
(PTX 81 “IAB Police Corruption Report”). The typewritten, faded report states that it was commissioned during the
first term of Commissioner Kelly, which ended in 1994, and dates from the first tenure of Police Commissioner
Bratton, which ended in 1996. This and any testimony based on it should also be excluded.
17

See Pluma v. City of New York, 2015 U.S. Dist. LEXIS 48134, *31 (S.D.N.Y. Mar. 31, 2015) (dismissing Monell
claim, in part because decade old CCRB report and single recent incident are “extremely unlikely” to support a pattern
and practice as a matter of law).

14

b.

The experts’ purported scientific study of survey evidence does not
comport with the standards of rigor they apply in social science
work.

Even when purporting to use scientific methods such as survey evidence, the experts failed
to adhere to the same “intellectual rigor” in forming their opinions in this case as they would in
their field of study, as required under Kumho Tire v. Carmichael, 526 U.S. at 152. After their
depositions in this case, the experts published a study online that shows that when practicing as
social scientists their methods are quite different. See Ex. F, J. Eterno, A. Verman & E.
Silverman, “Police Manipulations of Crime Reporting: Insiders’ Revelations,” Justice Quarterly
(published online Nov. 17, 2014) (“Justice Quarterly”).
For example, the experts here fail to consider whether the increased “pressure” they claim
arose from Compstat could be due to other contributing factors. When statistics are used to
attempt to prove causation, courts demand at least some consideration of other variables that may
explain the apparent correlation, usually in the form of multivariate regression analysis. See
Bonton v. City of New York, 2004 U.S. Dist. LEXIS 22105, *15-16 (S.D.N.Y. Nov. 3, 2004)
(“Courts have repeatedly held that statistical analyses that fail, as Zellner’s does, to control for any
nondiscriminatory explanations are inadmissible.”) (citations omitted); see also Smith v. Xerox
Corp., 196 F.3d 358, 371 (2d Cir. N.Y. 1999) (plaintiff’s statistical evidence “fail[ed] to account
for other possible causes”); R.F.M.A.S., Inc. v. Mimi So, 748 F. Supp. 2d 244, 273-74 (S.D.N.Y.
2010) (precluding expert testimony for failure to consider alternative causes).
In the 2012 survey, the experts obtained several data points from each respondent – the
year of retirement of the survey respondent (which they have refused to disclose in this case, see
Point II infra); level of education; age; rank; patrol assignment; commanding officer status;
patrol/staff/investigation role – but they used none of that data in their testimony here. See Report
16-23; Ex. H (2012 Survey Questions) at E&S Production 19-21. Nor do they attempt to fit their
15

analysis to the facts of this case and determine what level of alleged “pressure” existed in the years
that Schoolcraft claims he observed problems: 2008 and 2009.18
But when reporting on the data as social scientists, the experts did use the full data set and
reached much more guarded conclusions. See Ex. F (Justice Quarterly) at 16-18. The experts
admitted in their scientific publication there that regression model could explain only 39% of the
variation in the response; i.e., they could not explain 61% of it. Id. at 17. In addition, their
regression analysis showed a small coefficient of correlation (a “B” coefficient) of .038 for a
respondents’ retirement year as an explanation for a reported observation of downgrading criminal
complaints: a weak correlation when compared to the much larger correlation between similar
survey responses (in other words, “yes” answers to similar questions) of .102 and .307. Id. at 17.
Rather than the certainty expressed here that increased “pressure” from Compstat is the root of all
evil, in their journal article the experts concluded that “[t]ime of retirement is a good predictor of
experience with report manipulation and, as indicated by the multivariate model, has an
independent effect from the pressures on officers.” Ex. __ at 19 (emphasis added); see also infra
at 22. When working as social scientists, the experts’ conclusions are far more guarded: “These
interpretations must await further study . . . . As with all social science . . . they are subject to
limitations.” Id. at 20. They offer no such qualification in this case.
These discrepancies do not go merely to the weight of the evidence, to be used on crossexamination, as plaintiff may be expected to argue, because the Justice Quarterly article proves
that Eterno and Silverman did not apply the same rigor in this case as they do in their social
science work. See, e.g., In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531 (S.D.N.Y. 2004)

18

The 2008 survey elicited no year of retirement data except whether the officer retired prior to 1994, rendering the
data useless for determining the conditions Schoolcraft faced in 2008 and 2009. See Ex. G (2008 Survey Questions).
The survey responses are inadmissible for that reason as well.

16

(where expert “does not apply the same rigor in the courtroom that he would apply to his medical
endeavors” the testimony should be precluded).19
F.

The Experts’ purported opinions on police procedure are also inadmissible.

Even when the experts purport to make a claim about police procedures, their testimony is
inadmissible for lack of support or expertise, and the conflation of such procedures with constitutional
standards. The experts assert that the Patrol Guide requires the NYPD to explain why they
"reasonably believe[d]" Officer Schoolcraft is "mentally ill or temporarily deranged" such that his
conduct "is likely to result in serious injury to himself or others." Report at 9. But no citation to any
of the hundreds of Patrol Guide sections is ever given. They assert that “proper police procedure”
requires mention of a tape recorder found in Schoolcraft’s apartment in a memorandum of the incident,
but cites nothing for this proposition but their own ipse dixit. Report 10.
Nor are the experts qualified to give these opinions. Of Eterno’s time at the NYPD, he was a
sergeant or captain on patrol duties only 8 years out of 20 ½ on the job, the last time between 1998 and
1999, over nine years before October 31, 2009, and more than 15 years before today. Report (Eterno
CV) at CV2-CV3. He was a supervisor on Patrol only four of those 8. Id. He admits to having not
taught courses on EDPs, except for general training of police science at the Police Academy where he
was an instructor for one year, 27 years ago, 1987-1988. Eterno Dep 13:8-10, 32:2-22; Report at
CV3. If Eterno is qualified to be an expert witness on EDP procedures, then virtually any cop, or at
least any former police Captain, would be.20 The federal courts require more.

19

It would be no answer for plaintiff to say that since Eterno and Silverman have now published more complete and
correct work, they may use those results for their testimony. The published account deals with only some of the
survey at issue here and publishes only a single regression analysis. Moreover, plaintiff did not include most of the
published work in the expert’s Report, and may not amend his expert disclosures to add any information at this late
date, well after pre-trial disclosures were required to be made on August 21, 2015. See Fed. R. Civ. P. 26(e)(2).
20

Silverman does not claim any expertise in this area. Silverman Dep. 65:10-17.

17

G.

The Court should exclude the proffered testimony under F.R.E. 403 and
F.R.E. 703 because it will be more prejudicial and confusing than probative.

Even if the Court were to rule that some part of the Eterno and Silverman testimony meets
the requirements of Rule 702, the testimony should still be precluded because it is more
prejudicial and confusing than probative. The Second Circuit has warned that the strictures of
Federal Rule Evidence 403 have special importance in considering whether to admit expert
testimony, which may carry undue weight with a jury. See Nimely v. City of New York, 414 F.3d
381, 397 (2d Cir. 2005). The Court should heed this warning and preclude the testimony here
because it creates several extreme risks of prejudice and confusion. As set forth in the City
Defendants’ Memorandum of Law in Support of Their Motions in Limine, Points II and V, the
assumptions of plaintiff’s Monell theory are illogical and the Monell evidence bears no relevance
to determining the main issues before the jury.21 But even if marginally relevant, the expert’s
testimony is likely to cause undue prejudice and juror confusion on a number of points, conflating
alleged unrelated misconduct with the events in this case; conflating alleged policy defects in the
Compstat ‘culture’ with liability here; and conflating the existence of a quota or crime statistics
manipulation with constitutional wrongdoing. Addressing these problems through limiting
instructions is not sufficient.
It is likewise with any opinion of the experts that the defendants acted wrongly in this case.
As set forth above, Eterno’s opinion that the defendants acted inconsistently with “police
procedures” is inadmissible. See supra at 17. But were it ruled marginally admissible, its
probative value is slight because an expert’s conclusion that police procedures were not followed
is not relevant to whether probable cause was lacking. See supra at 6; See Garcia v. City of New

21

The experts’ opinions about the NYPD’s lack of “transparency” are also patently irrelevant and should be excluded.
Report 12-13.

18

York, 2013 U.S. Dist. LEXIS 147149, *25 (E.D.N.Y. July 17, 2013) (admitting Patrol Guide as
relevant to Monell but instructing jury that it is not relevant to whether the constitution was
violated). But should the Court rule such testimony (or related exhibits, such as PTX 159) is
marginally relevant, it should be excluded under Rule 403 because the danger of prejudice and
juror confusion of standards far outweighs any probative value.22
POINT II
BECAUSE SCHOOLCRAFT VIOLATED A COURT ORDER
TO TURN OVER DATA WHICH ETERNO AND
SILVERMAN CONSIDERED, AND THE EXPERTS LOST OR
DESTROYED ADDITIONAL DATA ON WHICH THEY
RELIED, THEIR TESTIMONY WHICH CONCERNS THE
SUPPRESSED DATA SHOULD BE PRECLUDED.
Eterno and Silverman contend that the results of their 2008 and 2012 surveys of police
supervisors show that Compstat created increasing pressure upon supervisors, and therefore police
officers, to engage in police activity but under-report complaints of criminal activity. Report at
14-24. As noted above, in the 2012 survey, the survey questionnaire asked each respondent to
state the year in which they retired. Supra at 15-16. The experts chose however, in presenting
their results, to combine the survey respondents from 2012 into three cohorts: 1994-1995, 19952001, 2002-2012. Report 16-19.
On September 17, 2015, this Court ordered the plaintiff to produce the survey response
data from the 2008 and 2012 surveys of former police supervisors. See Report at 14-24; Ex. J (Tr.
Sept. 17, 2014 Hearing (“Sept. 17, 2014 Tr.”)) 23:10-11. The City defendants’ specifically
requested the data concerning the year of retirement of the survey respondents. Tr. Sept. 17, 2014
at 21:12, 21:21-25. In response to the Court’s Order, plaintiff produced two statistical databases,

22

In addition, if the plaintiff is permitted to offer expert testimony based on hearsay, and it should not be, then the
content of the hearsay should be excluded under Fed. R. Evid. 703.

19

one for each survey, along with a sample survey questionnaire and a collection of the narrative
responses. Scheiner Dec. ¶ 13.
Plaintiff, however, excised from the data the retirement year reported by the survey
respondents, and produced only a variable indicating to which of the three cohorts selected by the
experts the respondent belonged. Scheiner Dec. ¶ 14. By omitting this crucial data, plaintiff
deliberately undercut any thorough testing of the experts’ principal claim: that the year of
retirement correlated with increasing “pressure” on respondents to generate more police activity or
better crime statistics, in a way that showed that Schoolcraft was subjected to increased pressure.
Report 24. In fact, the more probative question for this case is what pressure was reported in the
period that Schoolcraft complained of (2008 and part of 2009), not whether it increased over time.
Only the annual information could shed light on that question, since the cohorts created by Eterno
and Silverman clump together 2002-20012.
After Eterno and Silverman were deposed in this case, they revealed that they had chosen
the cohorts based on the trends that they wanted to prove:
We examine the data by the officers’ reported year of
retirement. For some analyses, we divide the sample into 3 key
groups using 1981 as the earliest year proceeding to 1993 which is
the last year prior to the introduction of NYPD’s Compstat
management system. We then examine 1994 until 2001—the Mayor
Giuliani years. Lastly, we examined those who retired from 2002
until 2012—the Mayor Bloomberg years. This categorization
emerged from trends we saw in the data.
Ex. F (Justice Quarterly) at 6 (emphasis added). In other words, the researchers admit that
although they examined the yearly data, they manipulated its presentation to emphasize the “trends
we saw in the data,” which correspond to political organization of the data into three categories
(the “earliest” year; the “Guiliani years”; and the “Bloomberg years”). Id.

20

Although the Court ordered all of the survey data to be disclosed, plaintiff failed to comply
and continues to refuse to comply. On June 23, 2015, by email, the City defendants pointed out to
plaintiff’s counsel that the retirement year of the respondents was not provided. Ex. E (Email
Chain) at 6. The plaintiff’s initial response was that all the data had been provided. Id. at 3-5.
Counsel then argued that “discovery has closed” and therefore any obligation to produce the data
previously ordered to be produced had expired. Id. at 1-3. Finally, plaintiff contended that the
withheld data – which was the only survey response removed from the data produced – was
merely “data-behind-data” and “trivial.” Id. at 1. This is sophistry. The close of discovery does
not moot a violation of a discovery order, especially where, as here, it is obviously willful.
The Second Circuit has recognized “the importance we place on a party’s compliance with
discovery orders [as] [s]uch compliance is necessary to the integrity of our judicial process… A
party who flouts such orders does so at his peril.” Update Art, Inc. v. Modin Publ’g, Ltd., 843
F.2d 67, 68, 73 (2d Cir. 1988); accord Lyondell-Citgo Ref., LP v. Petroleos de Venez, S.A., No. 02
Civ. 0795 (CBM), 2005 U.S. Dist. LEXIS 3635 (S.D.N.Y. Mar. 9, 2005)); see also Advanced
Analytics, Inc., v. Citigroup Global Markets, Inc., 04 Civ. 3531(LTS)(HBP), 2014 U.S. Dist.
LEXIS 41291, *22-23 (S.D.N.Y. Mar. 26, 2014) (preclusion and an award of costs and fees were
warranted pursuant to Fed. R. Civ. P. 16 and 37 in view of party’s untimely submission of
evidence which violated the Scheduling order). “Whether exercising its inherent power, or acting
pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery
abuses.” Advanced, 2014 U.S. Dist. LEXIS 41291 at *10 (citing Reilly v. Natwest Mkts. Grp. Inc.,
181 F/3d 253, 267 (2d Cir. 1999)).
Plaintiff’s contention, in counsel’s emails, that the data was not required to be disclosed
because it was “data-behind-data” (Ex. E at 1) is belied by the expert’s own Justice Quarterly

21

article, which makes extensive use of the annual retirement data. In addition to the regression
analysis using the year of retirement discussed above (supra at 15-16), the experts published
charts that tracked some but not all of the survey responses by the specific year of retirement of the
respondent, showing that there was little net change during the period of Schoolcraft’s tenure from
2002 through 2009. Ex F (Justice Quarterly) at 13-14. The relevance of the withheld information
is clear from the experts’ own social science work, and were it not probative the plaintiff would
not be so insistent on concealing it.23
Even in the absence of a court order – which there is for the survey data – under Rule
37(c)(1) of the Federal Rules of Civil Procedure, if “a party fails to provide information . . .
required by Rule 26(a) . . . , the party is not allowed to use that information . . . to supply evidence
on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
Great White Bear, LLC v. Mervyns, LLC, 2008 U.S. Dist. LEXIS 41977, *14-16 (S.D.N.Y. May
27, 2008). 24 Preclusion is appropriate where “the trial court finds that there is no substantial
justification and the failure to disclose is not harmless.” Design Strategy, Inc. v. Davis, 469 F.3d
284, 297 (2d Cir. 2006). Here the failure to disclose is unjustified and the failure to disclose
cannot be harmless where the City defendants are unable to test the experts’ opinions as a result.

23

The article itself cannot substitute for the missing information because it concerns only the issue of crime statistics
manipulation, not quotas or other survey responses; the experts’ results cannot be tested without the data; and the
article is not part of the experts’ disclosure in this case and cannot be made part of it under Fed. R. Civ. P. 26(e)(2); it
is far too late for that since the JPTO has already been filed.
24

In addition to the court-ordered survey data, the experts did not retain or produce: (a) Purported health data on
which they relied from an internet posting by the NYC Department of Health and Mental Hygiene, see Ex. E (Email
Chain) at 7; Report 11-12; see supra at 11-12; (b) Any of the audio recordings or media accounts on which their
opinions rely, Eterno Dep. 113:14-19; 106:16-17; (c) notes of interviews on which the experts purport to rely, or (d)
the single “Compstat book” that the experts claim to possess and rely upon, Silverman Dep. 81:2-85:13; Eterno Dep.
69:6-12. These defalcations exacerbate the violation of the Court’s order and provide further evidence that the
plaintiff does not take seriously his obligations under the federal rules applicable to expert testimony, and the experts
do not apply scientific standards requiring that they preserve their own data.

22

See Royal & Sun Alliance Ins. PLC v. UPS Supply Chain Solutions, Inc., 2011 U.S. Dist. LEXIS
97715, *33-34 (S.D.N.Y. Aug. 31, 2011).
For these reasons also, Eterno and Silverman should be precluded from testifying.
POINT III
THE TESTIMONY OF MEDICAL EXPERTS SHOULD BE
PRECLUDED WHERE IT CONTAINS
INADMISSIBLE
OPINIONS ABOUT THE CONDUCT OF THE POLICE IN
THIS CASE WHICH ARE BEYOND THEIR EXPERTISE
AND WOULD INVADE THE PROVINCE OF THE COURT
AND JURY AND EXCEED THEIR EXPERTISE
A.

Dr. Lubit’s gives inadmissible opinions invading the province of the Court and
jury and exceeding his expertise.

Plaintiff offers a medical expert Dr. Roy Lubit to testify not only as to medical matters, but
also to testify to facts and legal conclusions regarding the conduct of the defendants in this case.
The City defendants join in the motion of other defendants to exclude Mr. Lubit’s testimony. The
City defendants in addition move to specifically preclude Dr. Lubit from offering opinions about
the conduct of the police in this case.
In his report, Dr. Lubit offers a number of opinions about the police that invade the
province of the court and jury, comment on the motives and intentions of the parties, and which
are far outside any role as a medical expert. E.g.:

23

the police to use restraints in a way that was grossly inappropriate and abusive. Id.
at 22-23.
These assertions are not medical judgments, they are factual conclusions or legal judgments that
are inadmissible because they invade the province of the court and jury on matters where no
medical expertise is called for. See supra at 5-7; see Shan Zhao v. Kaleida Health, 2007 U.S.
Dist. LEXIS 103253, *20 (W.D.N.Y. Aug. 8, 2007) (precluding admission of forensic
psychiatrist’s testimony because he accepted plaintiff’s version of events given in interview
without reference to actual record).
Even when purporting to opine as a physician about the NYPD, his opinion is inappropriate.
Lubit says:

Lubit Report at 23. This comment is not relevant under Fed. R. Evid. 402 because the there is no
claim against the police for negligently causing medical harm to Schoolcraft’s blood pressure; the
claim is for unreasonable seizure under the Fourth Amendment. That a doctor would not have
handcuffed Schoolcraft when he had high blood pressure is irrelevant. This testimony is no more than
an inadmissible lawyer’s argument from the witness stand, discrediting the motives of the officers
involved – not true medical testimony about a relevant medical question. Supra at 5.

B.

Dr. Levy gives inadmissible opinions invading the province of the Court and
jury and exceeding his expertise.

The medical expert of defendant Jamaica Hospital Medical Center also offers non-medical
opinions about the NYPD that invade the province of the court and jury and should be precluded.
In his Report (Ex. I, the “Levy Report”), Dr. Levy opines:

24




“It is quite rare and not [a] generally credible scenario that the police would make
systematic misrepresentations of this nature.” Levy Report at 6.
“The patient’s current emotional condition is likely to be referable to the larger
picture of his perceived victimization by the police department with the
hospitalization playing a relatively small role, especially because this
hospitalization concluded with an acknowledgement of the veracity of his
statements. His difficulty finding work is also likely to be largely the result of this
larger picture and is unfortunately consistent with the difficulties faced by many
whistleblowers.” Levy Report at 7.

In giving these opinions, Dr. Levy invades the province of the court and jury, making
findings of fact that the police made “systematic misrepresentations” and that Schoolcraft was a
“whistleblower.” As with plaintiff’s medical expert, Dr. Levy appears to rely entirely on
plaintiff’s version of events for these opinions, without even considering the other evidence. Levy
Report at 1. Supra at 5-7; 11-12. Moreover, this cursory damages opinion is mere speculation; as
is his entirely non-medical and unsupported assertion that whistleblowers often cannot get jobs.
This testimony is without foundation in facts or expertise and should be precluded.
CONCLUSION
For the reasons stated, the expert testimony challenged above should be precluded.
Dated:

New York, New York
September 21 , 2015
Respectfully submitted,
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorneys for City defendants
100 Church Street, Room 3-174
New York, New York 10007
[phone]
[e-mail]
By:

25

/s/
Alan Scheiner
Senior Counsel