Tchatat v. The City Of New York , et al

Filing 292

OPINION AND ORDER. For the reasons in this Opinion and Order, the plaintiff's motion to preclude Dr. Raines's report (Docket #273) is granted. re: 273 MOTION to Preclude Amended Expert Report of Dr. Raines, and for relief under Daubert, etc. filed by Josias Tchatat. (Signed by Magistrate Judge Gabriel W. Gorenstein on 7/14/2016) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOSIAS TCHATAT,
:
:
Plaintiff,

OPINION AND ORDER
14 Civ. 2385 (LGS) (GWG)

:
-v.:
CITY OF NEW YORK, et al.,
:
Defendants.
:
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GABRIEL W. GORENSTEIN, United States Magistrate Judge
Plaintiff Josias Tchatat brought this case against a number of defendants pursuant to 42
U.S.C. § 1983 and various other provisions relating to his arrest for shoplifting. At this point in
the case, the only named defendants that remain are the City of New York and police officers
Liam O’Hara and Harry Arocho. As summarized in a prior decision in this case, Tchatat alleges
that he was improperly detained at a Best Buy store for shoplifting, that he was then arrested by
the defendant officers and prosecuted, and that he was ultimately acquitted at trial. See Tchatat
v. City of N.Y., 2015 WL 5091197, at *3, reconsideration granted in part, 2015 WL 6159320
(S.D.N.Y. Oct. 20, 2015). The governing complaint makes claims of false arrest, malicious
prosecution, as well as other constitutional and state law claims against the police officers.
Amended Complaint, filed Sept. 10, 2014 (Docket # 110).
As part of the discovery process, the defendants submitted an expert report authored by
Jonathan M. Raines, M.D. Tchatat now moves to preclude the report its entirety.1 For the
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See Notice of Motion, filed Apr. 20, 2016 (Docket # 273); Plaintiff’s Memorandum of
Law in Support of Motion to Preclude the Amended Expert Report of Dr. Jonathan M. Raines
and for Relief under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), filed Apr.
20, 2016 (Docket # 274) (“P. Mem.”); Declaration of Jeffrey A. Rothman, filed Apr. 20, 2016
(Docket # 275) (“Rothman Decl.”); Memorandum of Law in Opposition to Plaintiff’s Motion to

reasons described below, Tchatat’s motion is granted.
I. PROCEDURAL BACKGROUND
On November 23, 2015, the defendants served the plaintiff with an expert report by a
psychiatrist named Dr. Jonathan M. Raines, M.D. See The Defendants’ Expert Disclosure, dated
Nov. 23, 2015, appended as Exhibit 1 to Rothman Decl. The plaintiff requested permission to
make a motion striking the report. See Letter from Jeffrey A. Rothman, filed Dec. 3, 2015
(Docket # 238), at 1. He also sought to delay his deadline for filing a rebuttal report until after
the motion to preclude was decided. Id. at 3. The Court granted both requests. See Order, filed
Dec. 9, 2015 (Docket # 243).
Shortly thereafter, the defendants then served an amended report, also authored by Dr.
Raines. See Letter from Peter J. Biging to Jeff A. Rothman, dated Dec. 22, 2015, appended as
Exhibit 2 to Rothman Decl. (“Amended Report”). The plaintiff objected to the Amended Report
on the ground that it was untimely, Letter from Jeffrey A. Rothman, filed Dec. 29, 2015, an
objection that was overruled, see Text Only Order, filed Dec. 31, 2015 (Docket # 247). This
motion followed. Because only the Amended Report is at issue in this motion, we do not discuss
the original report.

Preclude the Amended Expert Report of Jonathan Raines, M.D., filed May 31, 2016 (Docket
# 285) (“D. Opp.”); Declaration of Ben Kuruvilla in Support of Defendants’ Opposition to
Plaintiff’s Motion to Preclude the Amended Expert Report of Jonathan M. Raines, M.D., filed
May 31, 2016 (Docket # 286); Plaintiff’s Reply Memorandum of Law in Further Support of
Motion to Preclude the Amended Expert Report of Dr. Jonathan M. Raines and for Relief under
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), filed June 15, 2016 (Docket
# 288) (“Reply”); Supplemental Declaration of Jeffrey A. Rothman, filed June 15, 2016 (Docket
# 289).
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II. LAW GOVERNING ADMISSION OF EXPERT TESTIMONY
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the case.
The Rule 702 standard incorporates the principles enunciated in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 589, 597 (1993), in which the Supreme Court held that trial courts
have a “gatekeeping” function to “ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable,” and in Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999), in which the Supreme Court held that Daubert’s general gatekeeping obligation “applies
not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’
and ‘other specialized’ knowledge,” id. at 141 (citing Fed. R. Evid. 702).
“One of the fundamental requirements of Rule 702 is that the proposed testimony ‘assist
the trier of fact to understand the evidence or to determine a fact in issue.’” In re Rezulin Prods.
Liab. Litig., 309 F. Supp. 2d 531, 540 (S.D.N.Y. 2004) (quoting earlier version of Fed. R. Evid.
702); accord Nimely v. City of N.Y., 414 F.3d 381, 397 (2d Cir. 2005); In re Initial Pub.
Offering Sec. Litig., 174 F. Supp. 2d 61, 68 (S.D.N.Y. 2001) (“As Rule 702’s plain language
shows, the opinion of an expert witness is only admissible if it (1) assists the trier of fact in (2)
understanding the evidence or determining a disputed fact.”) (emphasis in original). The
requirement that expert testimony assist the trier of fact is “akin to the relevance requirement of
Rule 401, which is applicable to all proffered evidence [,][but] . . . goes beyond mere relevance
. . . because it also requires expert testimony to have a valid connection to the pertinent inquiry.”
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Rezulin, 309 F. Supp. 2d at 540 (quoting 4 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence § 702.03[1] (Joseph M. McLaughlin ed., 2d ed. 1997)) (alterations
in original). As with all testimony, the expert’s testimony not only must be relevant under Fed.
R. Evid. 401, see, e.g., Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir.
2002), but is also subject to exclusion under Fed. R. Evid. 403 where its probative value is
substantially outweighed by the danger of unfair prejudice or other factors, see, e.g., Nimely,
414 F.3d at 397.
Additionally, Rule 702 requires that expert testimony rest on knowledge that is more
than “subjective belief or unsupported speculation.” See Atl. Specialty Ins. v. AE Outfitters
Retail Co., 970 F. Supp. 2d 278, 291 (S.D.N.Y. 2013) (quoting Rezulin, 309 F. Supp. 2d at 543).
Accordingly, expert testimony that is “speculative or conjectural” is inadmissible. Id. at 289
(quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (additional citation
omitted)). Similarly, expert opinions that are “conclusory” must be excluded. See Major
League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (rejecting
expert’s conclusory statement where it was not accompanied by “any evidentiary citation” or any
elaboration of the expert’s reasoning).
The Second Circuit has instructed that there is a “presumption of admissibility of [expert]
evidence” after Daubert. Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995), cert. denied, 517
U.S. 1229 (1996). Where there is “[a] minor flaw in an expert’s reasoning or a slight
modification of an otherwise reliable method . . . an expert’s opinion [is not] per se
inadmissible.” Amorgianos, 303 F.3d at 267. “Disputes as to the strength of [an expert’s]
credentials, faults in his use of differential etiology as a methodology, or lack of textual authority
for his opinion, go to the weight, not the admissibility, of his testimony.” McCullock v. H.B.
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Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995) (citation omitted). However, the burden of
proving the admissibility of expert evidence, as with all evidence, rests with the proponent —
here, the defendants. See, e.g., United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007), cert.
denied, 552 U.S. 1224 (2008); Fed R. Evid. 702 Advisory Committee’s note to 2000
Amendment (“[T]he admissibility of all expert testimony is governed by the principles of Rule
104(a). Under that Rule, the proponent has the burden of establishing that the pertinent
admissibility requirements are met by a preponderance of the evidence.”).
III. DISCUSSION
As an initial matter, we note that most of the Amended Report recounts factual
information about Tchatat’s personal life, medical history, his time in state custody related to the
criminal charge underlying this case, his testimony at his deposition, and the diagnoses of
psychiatrists who examined him while he was in custody. See, e.g., Amended Report at 2-3.
“Acting simply as a narrator of the facts does not convey opinions based on an expert’s
knowledge and expertise; nor is such a narration traceable to a reliable methodology. Mere
narration thus fails to fulfill Daubert’s most basic requirements.” Luitpold Pharms., Inc. v. Ed.
Geistlich Sohne A.G. Fur Chemische Industrie, 2015 WL 5459662, at *3 (S.D.N.Y. Sept. 16,
2015) (citation omitted); see also id. (collecting cases).
Taken on its own, this recitation of evidence in the case would not be admissible. See
Fed. R. Evid. 403 (court “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . needlessly presenting cumulative evidence”). We thus home in
on the opinion portion of the report. In this portion, the report states, “[b]ased upon [Dr.
Raines’s] examination of the materials submitted for review, it appears that from approximately
2009 onward Mr. Tchatat suffered from Paranoid Schizophrenia.” Id. at 4. The report
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continues, “[t]his condition can manifest itself . . . in illogical, grandiose, and paranoid thinking,
devoid of intact reality,” and that “‘some individuals with schizophrenia show social cognition
deficits including deficits in the ability to infer the intentions of other people . . . [schizophrenics
may] interpret irrelevant events . . . as meaningful, perhaps leading to the generation of
explanatory delusions.’” Id. (quoting Diagnostic and Statistical Manual of Mental Disorders 89,
101 (5th ed., text revision 2013) (“DSM-V”)).
The report states that “Tchatat’s history is also consistent with the coexistence of an
Antisocial Personality Disorder,” sufferers of which “‘are frequently deceitful and manipulative
in order to gain personal profit or pleasure . . . [t]hey may repeatedly lie, use an alias, con others,
or malinger.’” Id. at 5 (quoting DSM-V at 660).
Dr. Raines wrote that “[i]t is my opinion that the same disordered mental state . . .
emanates from the depositions like an illuminated penumbra and therefore Mr. Tchatat’s
testimony was not rendered by an individual of sound mind.” Id. The report concludes that
Tchatat suffered from these conditions “at the time of the incident in question,” and that Tchatat
“was potentially subject to delusional thinking, which would have significant potential to impact
his recollection of events during the time he was suffering from these disorders.” Id.
The plaintiff argues that the report should be excluded because (1) it “invades the
province of the jury in opining on Plaintiff’s credibility and on the ultimate issues in the case”;
(2) it is “scientifically invalid and unreliable under Daubert,” largely because Dr. Raines did not
personally interview the plaintiff; and (3) it should be precluded under Fed. R. Evid. 403. P.
Mem. at 21. Because either the second or the third grounds are sufficient to decide this motion,
we do not reach the first ground.

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A. Reliability
As noted, it is the burden of the defendants to show by a “preponderance of proof” that
Dr. Raines’s report satisfies Rule 702. Daubert, 509 U.S. at 592 n.10 (citing Bourjaily v. United
States, 483 U.S. 171, 175-76 (1987)); accord Atl. Specialty Ins. v. AE Outfitters Retail Co., 970
F. Supp. 2d 278, 288 (S.D.N.Y. 2013). Here, the plaintiffs have made a cogent argument,
supported by citations to practices in the psychiatric profession, that it is generally accepted
practice in the field of psychiatry for a diagnosis to be made based on an examination of the
individual being assessed. See P. Mem. at 9-14; DSM-V at 21, appended as Exhibit 3 to
Rothman Decl.; Ethics Guidelines for the Practice of Forensic Psychiatry, American Academy of
Psychiatry and Law (adopted May 2005), appended as Exhibit 4 to Rothman Decl., at 3-4.
Indeed, court decisions involving psychological or psychiatric expert testimony typically recite
that the testifying expert has personally interacted with the patient. See, e.g., United States v.
Finley, 301 F.3d 1000, 1009 (9th Cir. 2002) (“proper psychological methodology and reasoning”
included “observing [defendant's] behavior”); accord Qube Films Ltd. v. Padell, 2016 WL
888791, at *2 n.1 (S.D.N.Y. Mar. 1, 2016) (noting that a methodology “includ[ing] a medical
history interview, patient observation, a physical examination, and administration of standard
psychological tests” is “routinely accepted under Daubert.”) (citations omitted); Schoolcraft v.
City of N.Y., 2015 WL 6444620, at *2 (S.D.N.Y. Oct. 23, 2015) (“Because [psychologist] spent
a significant amount of time analyzing multiple sources to assess Plaintiff and himself observed
Plaintiff for an extended period of time, the Court finds [the opinion] . . . to be based on a
reliable methodology.”); Israel v. Spring Indus., Inc., 2006 WL 3196956, at *10 (E.D.N.Y. Nov.
3, 2006) (finding “personal interviews, a medical record review, clinical rating scales, and
background facts” to be “the type of methodology employed to form a reliable psychiatric
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opinion”) (footnote and citations omitted).
Here, by contrast, it is uncontested that Dr. Raines did not examine the plaintiff. Instead,
Dr. Raines’s report is based only on his review of medical records, deposition testimony, and
other documents relating to Tchatat. See Amended Report at 4. Neither Dr. Raines nor any
other expert has provided any admissible evidence to this Court that a review exclusively of
written records is an accepted method for making a psychiatric diagnosis of the kind Dr. Raines
made here. The record is literally devoid of any admissible evidence whatsoever on this
question. Certainly, Dr. Raines says nothing about the reliability of this methodology in his
Amended Report. Thus, he does not discuss whether he typically uses this methodology in his
professional practice, let alone whether such a practice is accepted the psychiatric profession.
Cf., e.g., Cohalan v. Genie Indus., Inc., 2013 WL 829150, at *4 (S.D.N.Y. Mar. 1, 2013)
(allowing expert evidence when vocational expert testified that she “used the same widely
accepted peer reviewed methodology and intellectual rigor,” including psychological interview,
as she did in her regular employment) (internal quotation omitted); Discepolo v. Gorgone, 399 F.
Supp. 2d 123, 127 (D. Conn. 2005) (“Plaintiff has demonstrated to the Court’s satisfaction that
Dr. Pratt’s methodology for diagnosing PTSD . . . coupled with psychological testing, record
review, and other interviewing, is a generally accepted methodology . . . .”) (footnote omitted).
While it may be understandable that Dr. Raines did not explain the reliability of his
methodology in his initial report, there is no justification for the fact that the defendants, when
confronted in plaintiff’s moving papers with this claimed defect in methodology, declined to
offer any admissible evidence on the question. To be sure, defendants briefly attempt to justify
the methodology, arguing that “records . . . about plaintiff’s personal background, criminal
history and his mental health history . . . provided ample information from which Dr. Raines
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could formulate his opinion about plaintiff’s mental health condition on September 20, 2011.”
D. Opp. at 6. This argument, however, is merely the statement of counsel. It is unaccompanied
by any citation. Critically, there is no evidence that this is a reliable and accepted methodology
employed by psychiatrists.2
This Court thus cannot make the finding required by Daubert that defendants have met
their burden of proving that Dr. Raines’s choice to forgo a patient interview reliably produced an
accurate psychiatric diagnosis. See Daubert, 509 U.S. at 589 (“[T]he trial judge must ensure that
any and all scientific testimony or evidence is not only relevant, but reliable.”); accord
Amorgianos, 303 F.3d at 267 (“To warrant admissibility . . . it is critical that an expert’s analysis
be reliable at every step.”). Accordingly, the report must be precluded based on this failure of
proof.
B. Rule 403
Rule 403 provides that “[t]he court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Even if we found Dr. Raines’s report reliable, we would exclude it on the

2

The defendants attempt to support Dr. Raines’s methodology by citing two cases in
which they argue a psychiatric expert’s opinion was admitted even though the psychiatrist did
not conduct an examination. D. Opp. at 6-7 (citing Nicks v. United States, 955 F.2d 161, 165
(2nd Cir. 1992) and Capellupo v. Nassau Health Care Corp., 2009 WL 1705749 (E.D.N.Y. June
16, 2009)). Both cases are irrelevant. The purpose of the report in Capellupo was to provide an
evaluation of the standard of care provided to a patient, not to diagnose the patient. Capellupo,
2009 WL 1705749, at *9; see also Ethics Guidelines for the Practice of Forensic Psychiatry,
American Academy of Psychiatry and Law (adopted May 2005), appended as Exhibit 4 to
Rothman Decl., at 4 (“For certain evaluations (such as record reviews for malpractice cases), a
personal examination is not required.”). Nicks did not even involve a challenge to the
admissibility of an expert report and thus made no ruling on the issue raised here.
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ground that offers little to assist the jury regarding any issues in the case and the little it does
offer is vastly outweighed by the potential that a jury would improperly use the expert opinion to
completely discount the plaintiff’s credibility.
Plaintiff concedes, as he must, that “[d]efendants will be able to question Plaintiff at trial
about the hallucinations he has experienced in his life, and about their timing and frequency, and
his history of mental illness.” Reply at 8. The Court believes that much if not all of the
documentary evidence summarized in Dr. Raines’s report will be admissible at trial. Dr.
Raines’s opinions, however, are couched in the most general and tentative terms. He states only
that it “appears” that Tchatat suffered from schizophrenia, that this condition “can” manifest
itself in thinking that is divorced from reality, that “some individuals” with schizophrenia
experience explanatory delusions, that Tchatat’s history is “consistent with” a personality
disorder in which the sufferer “may” repeatedly lie, and that Tchatat “potentially” was “subject
to” delusional thinking. Amended Report at 4-5.
These tentative conclusions offer little in the way of probative evidence. What little
value they have is far outweighed by the danger that the jury would accord too much weight to
such opinions because they come from the mouth of a medical professional. The jury will have
ample opportunity to learn about plaintiff’s experiences with delusions and hallucinations from
other evidence in the case, including many if not all of the very medical records, deposition
testimony, and prison records that Dr. Raines examined.
Accordingly, the expert report must be precluded under Fed. R. Civ. P. 403.

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IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motion to preclude Dr. Raines’s report (Docket
# 273) is granted.
Dated: July 14, 2016
New York, New York

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