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)

EXHIBIT C

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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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-against5

Case No:
10 Civ. 6005
(RWS)

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THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL MARINO,
Tax Id. 873220, Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL BOROUGH BROOKLYN
NORTH GERALD NELSON, Tax Id. 912370, Individually
and in his Official Capacity, DEPUTY INSPECTOR
STEVEN MAURIELLO, Tax Id. 895117, Individually and
in his Official Capacity, CAPTAIN THEODORE
LAUTERBORN, Tax Id. 897840, Individually and in his
Official Capacity, LIEUTENANT WILLIAM GOUGH, Tax Id.
919124, Individually and in his Official Capacity,
SGT. FREDERICK SAWYER, Shield No. 2576, Individually
and in his Official Capacity, SERGEANT KURT DUNCAN,
Shield No. 2483, Individually and in his Official
Capacity, LIEUTENANT CHRISTOPHER BROSCHART, Tax Id.
915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id. 885374,
Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004 and P.O.'s “JOHN DOE”
#1-50, Individually and in their Official Capacity
(the name John Doe being fictitious, as the true
names are presently unknown) (collectively referred
to as “NYPD defendants”), JAMAICA HOSPITAL MEDICAL
CENTER, DR. ISAK ISAKOV, Individually and in his
Official Capacity, DR. LILIAN ALDANA-BERNIER,
Individually and in her Official Capacity and
JAMAICA HOSPITAL MEDICAL CENTER EMPLOYEES “JOHN
DOE” #1-50, Individually and in their Official
Capacity (the name John Doe being fictitious, as
the true names are presently unknown),

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DEFENDANTS.
--------------------------------------------------X
DATE: October 17, 2014
TIME: 10:20 A.M.

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(Deposition of JOHN ETERNO, PhD)
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DIAMOND REPORTING

[phone]
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[e-mail]

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DATE:

October 17, 2014

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TIME:

10:20 A.M.

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DEPOSITION of an Expert Witness,

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JOHN ETERNO, PhD, taken by the Respective Parties,

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Pursuant to a Notice and to the Federal Rules of

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Civil Procedure, held at the offices of the New

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York City Law Department, 100 Church Street,

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New York, New York 10007, before Nathan MacCormack,

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a Notary Public of the State of New York.

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that's included with police management.
Q.

Have you ever qualified as an expert on the

specific area of blue wall of silence?

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A.

No.

5

Q.

Have you ever been qualified as an expert in the

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specific area of whistleblowers?

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A.

No.

8

Q.

Have you ever been qualified as an expert in the

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specific area of emotionally disturbed persons?

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A.

No.

11

Q.

Have you ever been qualified as an expert in the

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specific area of the use of surveys and political science

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research?

14

A.

No.

15

Q.

Have you ever been qualified as an expert in the

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specific area of statistical analysis?

17

A.

No.

18

Q.

Have you ever been qualified as an expert in any

19

court in New York?

20

A.

New York State or Federal Court?

21

Q.

New York State or Federal Court.

22

A.

I was -- I, as I said earlier, I was an expert

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witness in a case in the United States, Southern District.

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Q.

That was the Daniels case?

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A.

No, that was the Keenan case that I -- yeah.

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J. ETERNO
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C.V. than the one in Exhibit A?
A.

Yes.

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MS. PUBLICKER METTHAM:

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for production of that C.V.

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MR. SMITH:

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7
8

I'm going to call

We will take that under

advisement.
Q.

From where did you receive your Bachelor's

Degree?

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A.

Queens College, City University of New York.

10

Q.

What was your degree?

11

A.

History.

12

Q.

What year did you receive that degree?

13

A.

I got that in 1981.

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MR. SMITH:

Let the record reflect the

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witness was reviewing his C.V., which is before

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him.

17

Q.

Do you hold any advanced degrees?

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A.

I do.

19

Q.

How many advanced degrees do you hold?

20

A.

Three.

21

Q.

What are those degrees?

22

A.

Master's in human relations, a Master's in

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criminal justice, and a PhD in criminal justice.

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Q.

Have you ever attended law school?

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A.

No.

But I want to point out that one of my

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J. ETERNO
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areas -- you have to have an area of concentration in your

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PhD program, one of my areas of concentrations was law.

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Q.

Have you ever taken any course at a law school?

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A.

No.

5

Q.

Are you an attorney?

6

A.

No.

7

Q.

Have you attended any classes at any university

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9

since you received your PhD?
A.

That's a good question.

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MR. SMITH:

I can't recall.

You mean as a student?

11

Q.

As a student.

12

A.

No.

13

Q.

Do you attend any classes or trainings as a

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student?

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A.

No.

16

Q.

In-service training that you received?

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A.

That I would take, yes.

18

Q.

When was the last time you took in-service

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training?

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A.

I would say -- I don't know, maybe a year ago.

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Q.

What was that training on?

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A.

I don't recall.

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Q.

How frequently do you receive in-service

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training?

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A.

It's mostly in-service training.

I will go maybe once a year or so.

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A.

That would be in police science.

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Q.

So, when I asked earlier if you had ever taught

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any course dealing with emotionally disturbed persons you

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would add that to the list?

5

A.

I would.

6

Q.

When did you teach that course?

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A.

This was 1987 through '88.

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Q.

In what context did you teach that course?

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A.

I taught recruits at the academy.

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Q.

Was the course solely on emotionally disturbed

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persons?

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A.

No.

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Q.

What was the context of the course?

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A.

Police science.

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Q.

How long was the section on emotionally disturbed

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persons?

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A.

I don't recall.

18

Q.

How long was the training that you gave to these

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new recruits?

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A.

Approximately six months.

21

Q.

What kind of training did you give with regard to

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23

emotionally disturbed persons?
A.

There were very strict lectures that we do and

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cover on emotionally disturbed people.

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role play, other types of activities for the recruits.

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We sometimes do

[e-mail]

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J. ETERNO
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A.

Can you repeat the question?

2

Q.

Sure.

3

It states that, "As the years progressed, the

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range of information expanded widely to include summonses,

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stop-and-frisk encounters, quality of life violations and

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numerous other activity;" is that correct?

7

A.

Yes.

8

Q.

What CompStat books did you review to come to

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this opinion?
A.

I have reviewed the initial CompStat books that

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came out, and I am well aware of them.

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the CompStat notes that were provided to me for this case.

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And I also reviewed

We have also reviewed Dr. Silverman's book and

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material from the initial CompStat meetings.

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knowledge of CompStat, and my awareness of what goes on at

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that meetings, as well.

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18

Q.

So, when was the last time you looked at a

CompStat book?

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20
21

And also, my

MR. SMITH:
A.

Objection to the form.

It's been back when I was on the police

department.

22

Q.

So, not since 2003 or 2004?

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A.

Yes.

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Q.

So, on what do you base your opinion that the

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range of information in CompStat books now includes

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stop-and-frisk encounters are in CompStat books?
A.

Well, we are also aware of this from our

research, our surveys.
Q.

And the surveys stated that stop-and-frisk

material is found in CompStat books, specifically?
A.

We did not ask that specific question.

However,

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as part of our own research, we also interviewed some

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commanders where this would come up.

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Q.

So, commanders told you that stop-and-frisk

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activity, and other activities, were found in CompStat

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books?

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A.

Yes.

13

Q.

When did you learn that?

14

A.

This was more recently, after the 2008 survey

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came out.

16

Q.

Would it change your opinion, in any way, if I

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told you that stop-and-frisk activity is not found in

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CompStat books?

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MR. SMITH:

Objection to the form.

20

A.

No.

21

Q.

Why not?

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A.

Whether or not stop-and-frisk activities are in

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the book, it's just one of many items.

CompStat notes have

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indicated that stop-and-frisk activity is something that's

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discussed.

And I am aware that it is something, or was

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about pressure from CompStat meetings?

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A.

No, not necessarily.

3

Q.

Why not?

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A.

Length in time of a meeting is not necessarily

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indicative of the pressure that's put on commanders.
Q.

The last sentence -- the second-to-last sentence

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in this section states that, "Commanders are ranked and

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evaluated based on their comparative crime statistics,

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anti-crime plan, related law enforcement activities and the

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ability to articulate these at meetings."

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A.

Yes.

12

Q.

"Commanders who do not measure up are often

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reassigned to other positions."

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accurately?

Did I read that

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A.

You did.

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Q.

Which commanders have been moved based on their

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inability to measure up at CompStat meetings?
A.

You would have to get that information from my

colleagues, and Dr. Silverman.

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Q.

So, you can't answer that question?

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A.

Well, I can say that I am aware that commanders

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have been changed due to CompStat meetings, but I cannot

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specifically name people.

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I do know that three commanders were fired due to
their playing with crime reports.

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That's public

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J. ETERNO
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information.
Q.

On what did you base the opinion of the sentence

I just read?
A.

This was based on my discussions with

Dr. Silverman.
Q.

So, do you have any independent information on

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which you based your opinion that these commanders were

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moved based on their inability to measure up?

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A.

I do know that we have -- we do know that

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commanders feel a lot of pressure.

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commanders have told us that they are worried about this.

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Essentially, the informal message given at these meetings

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is if you have a bad CompStat meeting, you don't have a

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career.

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Q.

And we do know that

But my question to you is, these three C.O.s that

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you mentioned, or the C.O.s that you mentioned in your

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report who are resigned, do you have any independent

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knowledge that they were moved solely on their inability to

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measure up and not based on other factors?

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A.

No.

21

Q.

How often are commanders moved for the inability

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to measure up at CompStat meetings?
A.

I don't know.

That's a question you would have

to ask the police department.
Q.

Do you believe it's inappropriate to rate a

DIAMOND REPORTING

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J. ETERNO
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A.

This would now be Commissioner Safir -- well,

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starting with Commissioner Bratton, Commissioner Safir,

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Commissioner Kerik and Commissioner Kelly.

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5
6
7
8
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10

Q.

And to what other government officials were you

referring?
A.

Where are you reading -- "Regardless of the

explanation" -Q.

"The mayor, the police commissioner and other

government officials' rhetoric."
A.

I am referring to numerous media reports where we

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have constantly seen it.

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and other officials who would have been in the media.

So, it would be police officials

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Q.

Can you name any specifically?

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A.

Chiefs, Chief Esposito, perhaps, and others that

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are in the police department.
Q.

The last sentence, the next one in this paragraph

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you state, "It became the focal point, the narrative of

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both the Giuliani and Bloomberg administration."

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20

My question to you is, what is the "it" that you
were referring to?

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A.

The reduction of crime.

22

Q.

So, you are not referring to the impact of

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CompStat on the decrease on index crime?

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MR. SMITH:

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A.

Objection to the form.

I am referring to the reduction of crime.

DIAMOND REPORTING

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The

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J. ETERNO
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MS. PUBLICKER METTHAM:

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question, Mr. Smith.

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That was my

your comments.

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MR. SMITH:

Please stop interjecting

I was just making sure I heard

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what you said.

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judge's decision"?

7

Q.

Dr. Eterno, have you ever heard --

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MR. SMITH:

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(Whereupon, the referred to question and

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13
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Can you go back and repeat that

last question, please.

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Is that what you said, "Just the

answer were read back by the Reporter.)
A.

I would like to change that.

And also, based on

my experience and knowledge of policing in New York City.
Q.

So, in your experience, you have seen police

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officers make a stop of a citizen unlawfully just to meet a

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quota?

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A.

Anecdotally, I have got a lot of information on

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that, media accounts and other information where that is

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stated, yes.

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I have also seen it on websites and other places.

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And I have had informal and anecdotal conversations with

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people where this has been mentioned.

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25

Q.

Can you name a single person who has made a stop

of a citizen unlawfully just to meet a quota?
A.

I do know, again based on media accounts, that

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the union has pointed out, and they have done a whole big

2

advertisement, "Don't blame the beat cop for what's

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happening," and they say, "Blame management."

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This was quite clear in their language and

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rhetoric.

So, I would say based on those accounts, yes.

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Q.

But my question to you is whether you can name a

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single person who you know that stopped someone unlawfully

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in order to meet a quota?

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A.

No.

10

Q.

Can you name a single police officer who issued a

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summons without probable cause solely to meet a quota?

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A.

No.

13

Q.

Can you name a single police officer who made an

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arrest solely to meet a quota?

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A.

No.

16

Q.

Have you ever heard a chief say during CompStat,

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"I don't want numbers for numbers"?

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A.

I don't recall that exact statement being said.

19

Q.

Have you ever heard a chief say during CompStat,

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"I don't want you pushing numbers just for the sake of

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numbers"?

22

A.

Again, I don't recall that exact statement.

23

Q.

If I were to tell you, and you can assume it's

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true for the purposes of this question, that chiefs have

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said multiple times during CompStat, "I don't want numbers

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A.

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this.

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it up -- is that there is this pressure and downgrading

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that occurs.

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The date that I provided of 2004?

I would say

What our research shows -- and this basically backs

It occurs, regardless of time period.

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year 2004 is not that important to me.

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So, the

how this is important.

8
9

Q.

I am just not sure

Would it be important to you to learn if Adrian

Schoolcraft did not start feeling pressure until 2007 or

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2008?

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A.

That's very possible, depending on where he

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individually worked, and the commanders that he was working

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on, and supervisors.

14

Q.

And the media reports that you refer to in this

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Media Accounts section, they begin with claims from 2004

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out of the 50th Precinct; is that correct?

17

MR. SMITH:

Objection to the form.

18

A.

Yes.

19

Q.

Do you know if the plaintiff ever worked in the

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50th Precinct?

21

A.

I don't know.

22

Q.

You then state in here that your research

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uncovered current occurrences of similar practices.

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you referring to just the 2008 and 2012 surveys when you

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say "our research"?

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A.

Yes.

Well, not just that, but also experience in

2

talking with officers, media accounts, all of this

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information we gathered.

4

Q.

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Precinct?

6

A.

Not specifically, no.

7

Q.

Why not?

8

A.

We were studying the police department, not

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10
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Has your research ever focused on the 81st

individual precincts.
Q.

Are you aware of accounts of pressure from within

the 81st Precinct aside from Adrian Schoolcraft?
A.

I am aware of statements made by other

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supervisors there indicating that there was such pressure,

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which was publicly acknowledged.

15

Q.

To which supervisors are you referring?

16

A.

It was either the X.O., or the lieutenant there,

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19

that went to the supervisors' meeting there and taped it.
Q.

Is there any other information you have about

pressure in the 81st Precinct?

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A.

Specifically the 81st Precinct?

21

Q.

Specifically.

22

A.

No.

23

Q.

On the next page, page 7, you cite to a 2004 New

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York Times article reporting on 2003 FBI crime statistics

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for New York City.

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other examples of this in the media, sure.
Q.

So, would you say the materials you relied on in

3

forming this report, are those cited in this report and

4

also the media cited in your book?

5

A.

I would say certainly that's part of it, yeah.

6

Q.

Which book are you referring to?

7

A.

Crime Numbers, again.

8

Q.

Are there any other media accounts that you

9

considered that you have not listed in here?

10

A.

You can check the book.

11

Q.

Are there any media accounts that are not listed

12

in the book or the report that you considered in forming

13

your opinion in this case?

14
15

A.

Maybe some general knowledge of things I read in

the papers, of course.

16

Q.

But you can't specifically state any of those?

17

A.

No, not off the top of my head.

18

Q.

You also cite a Jim Hoffer 2010 article; is that

19

correct?

20

A.

21
22

Actually, he is ABC News investigative reporter,

Jim Hoffer.
Q.

23

I am sorry.
So, a Jim Hoffer 2010 report; is that correct?

24

A.

Yes.

25

Q.

And in that you claim to portray Commissioner

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A.

No.

From what I understand, they are just people

2

in the precinct or others.

3

actually, he had complainants on the tapes.

4
5

Q.

I know in the case of Borrelli,

My question was about Officer Polanco's

recordings, Dr. Eterno.

6

A.

Sorry.

7

Q.

So, it's not your understanding that Officer

8

Angel Herran, who was the P.B.A. representative, was the

9

individual making the statements on Officer Polanco's

10

recording?

11

A.

I don't know.

12

Q.

So, you don't know who made any of the statements

13

on Officer Herran's recordings?

14

A.

I don't know.

15

Q.

How did you receive those recordings?

16

A.

Again, through media accounts.

17

Q.

When did you last listen to those recordings?

18

A.

I haven't listened to them in quite a while.

19

Q.

How long?

20

A.

Months.

21

Q.

What do you remember about his recordings?

22

A.

Not much.

23

Q.

Polanco.

24

A.

Not much.

25

Q.

From what precinct did those recordings

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A.

Of course.

Or you might take a report for

2

another reason.

3

and then it could be something else.

4

Q.

5

you have?

6

A.

For example, person says it's a robbery

7

What audiotapes from Sergeant Robert Borrelli do

I don't have any of his tapes, other than what

the media has released.

8

Q.

What tapes are those?

9

A.

I think was a tape of the 100th Precinct where he

10

worked, some complainants that indicated things to him that

11

were not recorded on complaint reports.

12

Q.

And in what year were those recordings made?

13

A.

I don't recall.

14

Q.

Was it prior to 2010?

15

A.

I don't recall.

16

Q.

Do you recall when these tapes were made public?

17

A.

No.

18

Q.

When did you last listen to these tapes?

19

A.

Again, I don't recall the exact time and date.

20

Q.

Do you know when the tapes from Officer Polanco

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22
23

were recorded?
A.

No, I don't know.

I don't remember the dates.

I

know, but I don't remember off the top my head, the dates.

24

Q.

Do you recall whether they were before 2010?

25

A.

I don't recall.

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2

Q.

What else do you remember about the recordings of

Sergeant Robert Borrelli?

3

A.

I do remember that he was disciplined for it.

4

remember that he was sent to -- he was in the 100th

5

Precinct and then he was sent to, I think the Bronx from

6

the 100th Precinct.

7

I

these recordings were released.

8
9

Q.

So, he was disciplined right after

I am sorry, but you didn't answer my question,

which is, what do you remember about the recordings?

10

A.

I think I basically told you that.

11

Q.

That's all you recall, what you have already told

13

A.

Yeah, that's what I remember.

14

Q.

Just to confirm, you stated you have no audio

12

15
16

me?

recordings from any other members of the N.Y.P.D.?
A.

I don't have them, other than the media accounts

17

that are available publicly.

18

tape recordings, but I do have the publicly-available media

19

accounts from what's been released.

20

Q.

I don't have their personal

So, what other audiotape recordings from media

21

accounts do you rely on in your report that are not listed

22

here?

23

A.

Again, my book is listed in the references

24

section, with Eli, and all of these would be in that book,

25

so they are listed in the book.

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enforced.

2

Q.

3
4

When you were a member of the N.Y.P.D., you never

saw, personally, a quota being strictly enforced?
A.

Strictly, no.

I do know of people who were

5

disciplined for not doing any activity, things like that,

6

yes.

7
8
9
10

Q.

And do you believe it was inappropriate to

discipline those individuals for getting no activity?
A.

No.

something.

If they had nothing, they should be doing

As a supervisor, I would expect that.

11

Q.

Do you know why Officer Polanco was suspended?

12

A.

No.

13

Q.

Are you aware that Officer Polanco was suspended

14

for issuing a summons to a citizen for a violation he did

15

not observe?

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17
18
19
20

A.

Actually, I remember reading something about that

in one of the news articles, yes.
Q.

Are you aware that he admitted to issuing a

summons for a violation he did not observe?
A.

If I remember correctly, and again this is based

21

on media accounts, he said that it was because he felt

22

pressures from the precinct to write these summonses.

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I can't speak for Officer Polanco.

24
25

Q.

But

Do you believe it's inappropriate to suspend an

individual for admitting that they violated the

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2

Q.

Is that to a reasonable degree of scientific

certainty?

3

A.

Yes.

4

Q.

And on what do you base that opinion?

5

A.

On what's in appendix B, and all the other

6
7
8

materials, my knowledge and expertise.
Q.

Did you read the depositions of any officers

involved in this case?

9

A.

Not in their entirety.

10

Q.

Did you read any in part?

11

A.

There was, I think, an Officer Duncan that I

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13
14

looked at.
Q.

And earlier today, when I asked you about

documents, you did not mention Officer Duncan?

15

A.

Isn't that in appendix B?

16

Q.

I am sorry, that one is in appendix B.

17
18
19
20

MR. SMITH:
Q.

So, the only depositions you reviewed would be

Finnegan and Duncan?
A.

21

Yes.
MR. SMITH:

22

But he did mention that there

were subsequent reports.

23

THE WITNESS:

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25

As is Finnegan.

Yes, the lieutenant's special

assignment from the medical division.
Q.

So, you did not review the complete deposition of

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A.

Yes.

2

Q.

Were you aware that he had a shotgun under his

3

And that was from the Lauterborn memo.

bed?

4

A.

No.

5

Q.

Would that change your opinion in any way?

6

A.

As to?

7

Q.

As to any of your opinions in this case.

8

A.

Well, that should have been on his force record

9
10

card, which is all weapons that an officer has must be on
that record card.

11

So, that weapon should be taken.

As part of the patrol guide procedure, all

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weapons should be vouchered from the medical -- previously

13

should have been vouchered.

14

Q.

Would it change your opinion about Adrian

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Schoolcraft in any way if you learned that he had not

16

reported the shotgun to the medical division, had not

17

returned it after his weapons were removed from him?

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MR. SMITH:

Objection to the form.

19

A.

Yes.

20

Q.

Would it change your opinion about this case in

21

any way?

22

He should have reported that.

MR. SMITH:

Objection to form.

23

A.

Perhaps.

24

Q.

Would it change your opinion about this case in

25

I don't know.

Maybe.

any way to learn that he had the gun under his bed during

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the recording you listened to?

2

A.

3

evidence.

4

Q.

Yeah.

It might be an important piece of

Did plaintiff's counsel provide you with a

5

recording in which Adrian Schoolcraft spoke about the

6

shotgun to his father earlier in the day, on the date of

7

October 31, 2009?

8
9
10

A.

No.

The only thing I have is what's in appendix

Q.

And were you provided with any documents

B.

11

indicating that when I.A.B. went back to his home they did

12

voucher the shotgun found under his bed?

13

A.

No.

14

Q.

Have you heard any of the recordings Schoolcraft

15

took earlier in the day where he stated he wished he still

16

had his service weapon in case he got into a gun battle at

17

the precinct?

18

A.

No.

19

Q.

Assuming that's accurate, would that change your

20

opinion about this case in any way?

21

MR. SMITH:

Objection to the form.

22

A.

It might.

23

Q.

How so?

24

A.

Well, it does show a concern against his fellow

25

officers.

But we are starting to talk now about at least a

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important I would have noted it.

2
3

Q.

from that report?

4
5

A.

It's pretty close.

I think it's correct.

I

would need that report to confirm.

6
7

So, again, you believe this is a direct quote

Q.

Did you have the report in front of you when you

wrote your report?

8

A.

I may have.

9

Q.

So, you may have just paraphrased?

10

A.

It's possible.

11

Q.

Did you read Dr. Lambstein's deposition

12

transcript?

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14
15
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17

I don't recall.

A.

It's not in appendix B, so I would not have read

Q.

So, you didn't think it was important to know

it.

what Dr. Lambstein believed on the night of the incident?
A.

My expert opinion is not regarding what the

18

doctor at the hospital did or did not do or whatever

19

statement that was made.

20

police behavior at the scene and basic pressures that

21

happen to officers.

My expert opinion is based on the

22

So, Dr. Lambstein's commentary to me is something

23

that I am not really commenting on, nor am I a psychologist

24

or a psychiatrist where I could comment on what a doctor, a

25

psychiatrist I am assuming, would say about Officer

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Schoolcraft at the time he entered the hospital.

2

I am talking about at the scene, and what

3

information that I have available, and what I am basing my

4

decision on -- my expert opinion on is the information that

5

is in appendix B, my expertise in police management.

6

Q.

So, you don't understand, then, that

7

Dr. Lambstein is the psychologist you are allegedly quoting

8

here?

9

A.

10

I am sorry.

I thought you were talking about the

person who entered the -- when he got to the hospital.

11

Q.

No, Dr. Lambstein is --

12

A.

I am sorry, I don't have the report in front of

13
14

me.

So, what is your question now regarding Dr. Lambstein?
Q.

Do you believe it would have been helpful to read

15

her transcript to understand what she believed and her

16

recollection of what she told Captain Lauterborn that night

17

was?

18

A.

Yes, that would be important.

19

Q.

But you didn't actually review that transcript?

20

A.

It's not in appendix B, I didn't read it.

21

Q.

Did you ask plaintiff's counsel for it?

22

A.

I didn't know she was involved.

23

Q.

If I told you that her opinion was that the last

24

time she saw him he did not appear to be a danger, but she

25

could not speak for him, and his mental state at the time

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3

A.

I didn't say "only," but I do feel that that was

certainly a contributing factor.
Q.

I believe you do say it's a direct result.

On

4

page 11, "If any actions appeared emotionally disturbed

5

they occurred after they entered the apartment.

6

if they occurred, they apparently were the direct result of

7

the actions of the N.Y.P.D."

In fact,

8

A.

Apparently.

9

Q.

So, what do you mean by apparently, then?

10

A.

It appears that that was the direct reaction of

11

them staying in his living room, or bedroom, not sure

12

which.

13

would drive anyone's blood pressure, I think, higher.

But they stayed there against his wishes.

That

14

Q.

Do you have any medical background or training?

15

A.

Just what I had with the Police Academy.

16

Q.

So, are you qualified to make a determination

17

about the impact of others on an individual's mental or

18

physical health?

19
20
21
22
23

A.

I am a physical fitness instructor for law

enforcement, but I am not a qualified doctor of medicine.
Q.

And have you ever done any studies on the impact

of others on someone's physical and mental health?
A.

I actually did a study for the police department

24

on physical fitness standards and their effect on arrests

25

that went on to win an award.

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not be it.
Q.

Your report indicates that it would have been

3

exceedingly prudent to contact the legal bureau for advice,

4

as well as notify them directly; is that correct?

5

A.

Yes.

6

Q.

Is it required that officers contact the legal

7
8
9

bureau before declaring someone an E.D.P.?
A.

It's not required to declare someone an E.D.P.

But this is an extremely unusual situation, where a

10

uniformed member of the service is being declared

11

emotionally disturbed.

12

prudent to contact the legal bureau on this.

It would have been extremely

13

Q.

But is it required?

14

A.

No.

15

Q.

Moving on to the next section, which is also on

16

page 11.

17

right?

That's your section on hospital data; is that

18

A.

Yes.

19

Q.

Mr. Smith has represented that the Health and

20

Hospital Corporation data is no longer available on the

21

website and no copy has been maintained by the expert; is

22

that accurate?

23

A.

Yes.

24

Q.

So, there is nothing --

25

MR. SMITH:

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Just correct one thing.

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I

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how to do it.
Q.

But you did expect they would rely on the history

3

that you provided as one part of their overall evaluation

4

of that person, correct?

5

A.

Of course.

6

MR. LEE:

7

MS. PUBLICKER METTHAM:

8

(Whereupon, at 6:46 P.M., the Examination of

9

Thank you.
The time is 6:46.

this Witness was concluded.)

10
11
__________________________
JOHN ETERNO, PhD

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Subscribed and sworn to before me

15

this _____ day of _______________ 20___.

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__________________________
NOTARY PUBLIC

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DIAMOND REPORTING

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C E R T I F I C A T E

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3

STATE OF NEW YORK

)

4

COUNTY OF NEW YORK

)

:

SS.:

5
6
7

I, NATHAN MACCORMACK, a Notary Public for and
within the State of New York, do hereby certify:

8
9

That the witness whose examination is
hereinbefore set forth was duly sworn and that such

10

examination is a true record of the testimony given by that

11

witness.

12

I further certify that I am not related to any

13

of the parties to this action by blood or by marriage and

14

that I am in no way interested in the outcome of this

15

matter.

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17

IN WITNESS WHEREOF, I have hereunto set my hand
this 22nd day of October 2014.

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___________________________
NATHAN MACCORMACK

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