Schoolcraft v. The City Of New York et al

Filing 497

DECLARATION 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. (Attachments: # 1 Exhibit A Expert Report, # 2 Exhibit B Deposition Excerpts, # 3 Exhibit C Deposition Excerpts, # 4 Exhibit D Under Seal, # 5 Exhibit E Email Chain Between Counsel, # 6 Exhibit F Justice Quarterly Article, # 7 Exhibit G Under Seal, # 8 Exhibit H Under Seal, # 9 Exhibit I Under Seal, # 10 Exhibit J Transcript, # 11 Exhibit PTX 66 Under Seal, # 12 Exhibit PTX 81 Part I, # 13 Exhibit PTX 81 Part II, # 14 Exhibit PTX 93 Arbitration Award, # 15 Exhibit PTX 159 Patrol Guide)(Scheiner, Alan)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,

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Plaintiff,

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v.
THE CITY OF NEW YORK, ET AL.,

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10 CV 6005 (RWS)

Defendants.
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New York, N.Y.
September 17, 2014
12:01 p.m.

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Before:
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HON. ROBERT W. SWEET,
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District Judge
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APPEARANCES
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LAW OFFICE OF NATHANIEL B. SMITH
Attorney for Plaintiff
BY: NATHANIEL B. SMITH
AND
LAW OFFICE OF JOHN DAVID LENOIR
BY: JOHN DAVID LENOIR

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NEW YORK CITY LAW DEPARTMENT
Attorneys for Defendants City of New York, NYCPD and
individual officers
BY: SUZANNA PUBLICKER METTHAM
RYAN GLENN SHAFFER

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SEIFF KRETZ & ABERCROMBIE
Attorneys for Defendant Deputy Inspector Steven Mauriello
BY: WALTER A. KRETZ, JR.

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

I'm not getting word.

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MS. METTHAM:

Narrative, summaries?

The area where

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the respondent to the survey was able to expound without

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checking a multiple-choice question.

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actual survey, what the respondent's typed or hand wrote,

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which --

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THE COURT:

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MS. METTHAM:

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THE COURT:

Was produced?
It was produced.

And it will be here.

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MS. METTHAM:

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THE COURT:

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MS. METTHAM:

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THE COURT:

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So the raw data from the

I would hope so, your Honor.

Yes, it will be here.

Okay?

Yes, your Honor.

And that's consistent with what Judge

Scheindlin did?

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MS. METTHAM:

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THE COURT:

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MS. METTHAM:

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THE COURT:

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MS. METTHAM:

Yes, she did order the narrative --

Okay.
-- information.

Okay.
In terms of the other data, the reason

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that there is a difference here in terms of the actual survey

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responses is that in the Floyd matter, because he wasn't an

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expert, and Professor Silverman was very limited in what he was

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allowed to testify on.

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the pressures that they believed came from stop, question and

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frisk information.

And he was only allowed to testify on

That was only one of about 24 questions in

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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the survey.

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testimony was limited to stop, question and frisk pressures.

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So all of his discovery, his deposition, his trial

In this matter, the plaintiff's experts have used the

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survey data and responses in a much broader way.

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talking about CompStat data generally on stop, question, frisk,

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on summonses, on arrests.

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CompStat to -- the impact on constitutional rights.

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They're

They talk about the pressure of

And the issue, your Honor, here is with them as
experts, we need to probe their survey so that we can make an

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appropriate Daubert and Kumho Tire motion to exclude these

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experts based on how they've conducted the survey on the age,

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the numbers of the retirees, when they retired, what kind of

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pressure.

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For example, your Honor, plaintiff's experts -- and

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this is Exhibit E to my September 4th motion of their report

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and starting on Page 16 are the survey findings.

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survey findings the experts have lumped responses into these

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subjective categories of low, medium and high and found that

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retirees who retired before 1995 felt one way, from 1995 to

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2001 felt another, and 2002 until 2012 felt a different way.

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And in the

The reason we need the underlying data is that we

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don't believe that these categories are appropriate.

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believe that cutting it off before 1995 -- we think that if you

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changed that year, so if the respondent said he retired in

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2000, that we want to see what retirees in that year said.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

We don't

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Instead of saying plaintiff's experts' category of low, we want

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to know if they said a one, a two or a three in response.

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We just simply need more qualitatively data to be able

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to analyze their survey and to challenge their survey

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responses.

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not relying on this data in their report, but again, I would

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direct the Court, respectfully, to the report starting on

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Page 14, where they spend a dozen pages talking about the 2008,

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2012 expert -- I mean surveys, going through the survey

And plaintiff here has said that his experts are

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findings and linking it to this case.

So instead of simply

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saying we've done a survey in the past and this has kind of

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changed our opinion, they've heavily relied on it in this

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matter.

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And in terms of the other data on which they've

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relied, No. 1, I would direct the Court to Federal Civil

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Procedure 262(b)(2), which requires an expert to include the

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facts or data considered by the witness in forming their

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opinions.

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rules simply don't require an expert to provide this

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information, it's pretty clearly written that if an expert

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relies on data or information, they must include that in their

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expert report.

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So contrary to plaintiff's opinion that the federal

And while the survey is one part, plaintiff's experts

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also spend a large amount of time talking qualitatively about

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CompStat, mentioning non-NYPD data sources which aren't
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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identified anywhere in the footnote, in the references.

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make their own opinions about evidence that NYPD leadership

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altered and misused CompStat, that the CompStat crime reduction

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system has been emulated in other cities.

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They

They're relying on a lot of information which they

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haven't provided data or information on, and we're seeking to

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get that data so that we can challenge this report

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appropriately, your Honor.

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MR. SMITH:

Can I respond to that, your Honor?

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THE COURT:

I think we will have what we'll call the

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Scheindlin rule for the 2008, 2012 surveys.

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fact or literature will be produced.

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day, with the understanding that if more is needed, an

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application will be made, and there will be no additional

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travel time or anything of that kind.

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with that is we're just putting off that problem, but, okay.

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Any identified

The depositions will be a

You know, the trouble

Well, let's back up a little bit.

Okay.

I guess what

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we should do is you'll tell me -- it's totally predictable, but

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you'll tell me when these depositions are scheduled, and we

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will have a conference at the close of the day to determine

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whether or not there should be additional.

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I'm pretty sure there will be, but okay, we'll see.

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MS. METTHAM:

Now, quite frankly,

Your Honor, if I may interrupt to ask a

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question about how that would work in reality in that with five

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separate defendants, you know, if we're all supposed to split
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]