Felix et al v. City Of New York et al

Filing 147

OPINION AND ORDER. The City's motion (Dkt. No. 130) is GRANTED in part and DENIED in part. Specifically, the Court DENIES summary judgment as to both the failure-to-train claim and the disability discrimination claims; DENIES the request for bif urcation; and GRANTS in part the request to limit expert testimony. The Court will schedule a pretrial conference by separate order. SO ORDERED. re: 130 MOTION for Summary Judgment filed by Vincente Matias, City Of New York, Harold Carter. (Signed by Judge Alison J. Nathan on 10/13/2020) (rjm)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

10/13/2020

Dorrelien Felix, et al.,
Plaintiffs,
16-cv-5845 (AJN)
–v–
OPINION & ORDER
City of New York, et al.,
Defendants.

ALISON J. NATHAN, District Judge:
This litigation concerns the attempted arrest and fatal shooting of David Felix. Felix’s
parents and estate sued the two New York Police Department detectives involved in the incident
and the City of New York, asserting claims under 42 U.S.C. § 1983, federal disability
discrimination statutes, and New York law. The Plaintiffs contend that the City is liable for the
detectives’ alleged violations of Felix’s constitutional rights because the City failed to train and
supervise officers in the treatment of mentally ill and emotionally disturbed persons.
The City moves for summary judgment on the failure-to-train and disability
discrimination claims. The City also requests, by the same motion, that the Court bifurcate the
claims against it from those against the individual officers and limit the trial testimony of an
expert witness. For the reasons that follow, the Court grants in part and denies in part the City’s
motion.
I.

Background
The factual circumstances of this case are set out in more detail in the Court’s prior

orders on the City’s motion to dismiss and the detectives’ motion for partial summary judgment.

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See Felix v. City of New York (Felix I), 344 F. Supp. 3d 644, 649–52 (S.D.N.Y. 2008); Felix v.
City of New York (Felix II), 408 F. Supp. 3d 304, 306–07 (S.D.N.Y. 2009).
As relevant here, Detectives Harold Carter and Vincente Matias arrived at the Bridge, a
residential facility for individuals suffering from mental illness, on April 25, 2015, to arrest Felix
for a robbery and assault. Felix II, 408 F. Supp. 3d at 306; Plaintiffs’ Responses to Defendants’
Rule 56.1 Statement (“Plf. Counter 56.1”), Dkt. No. 142, ¶¶ 1–2. A Bridge employee informed
the detectives that Felix suffered from paranoid schizophrenia. Felix II, 408 F. Supp. 3d at 306;
Plf. Counter 56.1 ¶¶ 3, 6. The employee attempted to buzz Felix, and then led the detectives to
his apartment door. Felix II, 408 F. Supp. 3d at 306; Plf. Counter 56.1 ¶¶ 7, 9. The employee
knocked and heard no answer. Felix II, 408 F. Supp. 3d at 306; Plf. Counter 56.1 ¶¶ 10–11. The
employee then opened the door with her master key. Felix II, 408 F. Supp. 3d at 306; Plf.
Counter 56.1 ¶ 16. The detectives entered the apartment. Felix II, 408 F. Supp. 3d at 306; Plf.
Counter 56.1 ¶¶ 17–20. Matias saw Felix descending down the fire escape outside the window.
Felix II, 408 F. Supp. 3d at 306; Plf. Counter 56.1 ¶ 22. The detectives ran down the stairs to
intercept him. Felix II, 408 F. Supp. 3d at 306; Plf. Counter 56.1 ¶¶ 23–25. Detective Carter
grabbed Felix by the front door of the building lobby. Felix II, 408 F. Supp. 3d at 306; Plf.
Counter 56.1 ¶¶ 27–30. After a brief struggle—the circumstances of which the parties dispute—
Carter fatally shot Felix. Felix II, 408 F. Supp.3d at 306; Plf. Counter 56.1 ¶ 33; Defendants’
Counter-Statement Pursuant to Local Rule 56.1 (“Def. Counter 56.1”), Dkt. No. 146, ¶¶ 117–
132.
The NYPD receives over 100,000 calls involving emotionally disturbed persons each
year. Def. Counter 56.1 ¶ 5. The NYPD has long acknowledged that police encounters with
mentally ill or emotionally disturbed persons present heightened risks for police use of force, and

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it has required new recruits and some promoted officers undergo training related to emotionally
disturbed persons. Id. ¶¶ 1–3; 14–16; Patrol Guide Procedure No. 216-05, Dkt. No. 143, Ex. 28.
However, it did not require detectives, including Carter and Matias, to undergo training upon
promotion. Def. Counter 56.1 ¶¶ 23–26. Carter last received training related to emotionally
disturbed persons in 1994, and Matias last received training related to emotionally disturbed
persons in 1992. Id. ¶¶ 132–134. The NYPD also did not require police officers to undergo
Crisis Intervention Training (“CIT”), which teaches de-escalation techniques to avoid violent
confrontations with mentally ill and emotionally disturbed persons, until 2015. Id. ¶¶ 41–44. A
2017 report by the NYPD Office of the Inspector General found what it considered to be
significant deficiencies in the NYPD’s CIT Program. Id. ¶ 45; see New York Police Department
Office of the Inspector General, Putting Training Into Practice: A Review of NYPD’s Approach
to Handling Interactions with People in Mental Crisis (“NYPD-OIG Report”) (2017).
To bolster claims that the NYPD failed to adequately train officers to deal with mentally
ill and emotionally disturbed persons, the Plaintiffs point to an expert report by Dr. Grace
Telesco, a retired NYPD Lieutenant and former Chairperson of the Behavior Science
Department at the New York Police Academy. Expert Witness Report of Grace Telesco, Ph.D.
(“Telesco Report”), Dkt. No. 143, Ex. 35. Dr. Telesco opined in her expert report that the
training NYPD provided its officers “was inadequate and well below acceptable national
standards,” both because detectives did not receive retraining following promotion and because
the training offered new officers did not include a CIT component. Id. at 5–6. She further
opined that, had Carter and Matias received appropriate training, they would have called for
backup and attempted to isolate and contain Felix rather than escalating the situation, and that,
were it not for their missteps, Felix likely would have survived the encounter. Id. at 7–12.

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II.

Discussion
A.

Summary Judgment

A court may grant summary judgment only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56. “An issue of fact is genuine if ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’ A fact is material if it ‘might affect the outcome of the
suit under the governing law.’” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)
(internal citations omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“In applying this standard, [courts] ‘resolve all ambiguities, and credit all factual inferences that
could rationally be drawn, in favor of the party opposing summary judgment.’” Brown v.
Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Electric Co., 252 F.3d
205, 216 (2d Cir. 2001)).
1. Failure to Train
Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a municipality may
not be held liable for constitutional violations by its employees on the basis of respondeat
superior. Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). Instead, a plaintiff must
establish that a municipal policy or custom caused the constitutional violation. Wray v. City of
New York, 490 F.3d 189, 195 (2d Cir. 2007). “[T]he inadequacy of police training may serve as
the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police come into contact.” City of Canton v. Harris, 489
U.S. 378, 388 (1989).
The Second Circuit has held that a plaintiff must satisfy three elements to show that a
failure to train constitutes deliberate indifference. “First, the plaintiff must show that a

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policymaker knows to a moral certainty that her employees will confront a given situation.
Second, the plaintiff must show that the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less difficult or that there is a history of
employees mishandling the situation. Finally, the plaintiff must show that the wrong choice by
the city employee will frequently cause the deprivation of a citizen’s constitutional rights.”
Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007) (internal citations and quotation
marks omitted). “In addition, at the summary judgment stage, plaintiffs must identify a specific
deficiency in the city’s training program and establish that that deficiency is closely related to the
ultimate injury, such that it actually caused the constitutional deprivation.” Id. (internal
quotation marks omitted).
There is at least a genuine dispute of material fact as to each of these elements.
Undisputed evidence shows that NYPD officers respond to over 100,000 calls involving
emotionally disturbed persons each year, often hundreds each day. Def. Counter 56.1 ¶ 5.
NYPD training materials reflect that the City was aware that officers regularly respond to
emotionally disturbed person calls and that encounters with mentally ill or emotionally disturbed
persons present unique risks. Def. Counter 56.1 ¶¶ 14–15. NYPD officers had shot and killed
emotionally disturbed persons on a number of occasions prior to Felix’s death. Def. Counter
56.1 ¶¶ 30–37. These incidents prompted the NYPD-OIG to undertake a review of the NYPD’s
CIT Program, which found a notable “failure to fully integrate and use [CIT] training within the
totality of NYPD’s everyday policing.” NYPD-OIG Report at 1. The NYPD-OIG Report
reiterated what was clear from the NYPD’s policies and training materials: encounters with
emotionally disturbed persons present “the potential for a lethal outcome” if handled improperly.
Id.; see also Def. Counter 56.1 ¶ 15; Patrol Guide Procedure No. 216-05. The record contains

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ample evidence from which a reasonable juror could find that the City knew that NYPD officers
regularly encountered emotionally disturbed persons; that officers frequently mishandled these
encounters; and that doing so often resulted in preventable uses of lethal force.
The City does not dispute its awareness of the need for training or the consequences that
frequently flow from an officer’s mishandling of an encounter with an emotionally disturbed
person. However, the City contends that NYPD’s history of responding to calls involving
emotionally disturbed persons and prior civil rights suits related to fatal shootings did not suffice
to put the City on notice that the training it provided to officers was inadequate. Resolving all
factual ambiguities in favor of the Plaintiffs, as the Court must do in this posture, the Court
disagrees. As this Court previously held, claims of officer misconduct may put a municipality on
notice of training deficiencies even if those claims do not result in a formal finding that
misconduct resulted from a failure to train. Felix I, 344 F. Supp. 3d at 662; see also Fiacco v.
City of Rensselaer, 783 F.2d 319, 328 (2d Cir. 1986) (“Whether or not the claims had validity,
the very assertion of a number of such claims put the City on notice that there was a possibility
that its police officers had used excessive force.”). Moreover, plaintiffs need show only “that the
situation either presents the employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history of employees mishandling the
situation” to satisfy the second prong of the deliberate indifference standard. Jenkins, 478 F.3d
at 94 (emphasis added); see, e.g., Walker v. City of New York, 974 F.2d 293, 300 (2d Cir. 1992)
(holding that failure by District Attorney to train Assistant District Attorneys on Brady
obligations could support Monell liability where plaintiffs did not allege a history of disclosure
violations). A reasonable juror could find either on this record.

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The City also makes several arguments related to causation. First, the City contends that
ensuring Carter and Matias had been recently trained on NYPD’s policy on emotionally
disturbed persons would not have prevented Felix’s death because the detectives complied with
that policy. Second, that additional training would not have helped because the detectives never
had an opportunity to attempt to communicate with Felix or deescalate the situation. Finally,
that a lack of training cannot be at fault if, as the Plaintiffs claim, Carter shot Felix when his
hands were up as he attempted to surrender. None of these are persuasive.
There is a genuine dispute as to whether Carter and Matias violated NYPD’s policy on
emotionally disturbed persons. As this Court held previously, the relevant Patrol Guide
Procedure does not unambiguously state whether the policy would apply based on the detectives’
knowledge of Felix’s diagnosis and suspected criminal conduct. Felix I, 344 F. Supp. 3d at 657.
The Patrol Guide defines an emotionally disturbed person as “[a] person who appears to be
mentally ill or temporarily deranged and is conducting himself in a manner which a police
officer reasonably believes is likely to result in serious injury to himself or others.” Patrol Guide
Procedure No. 216-05 (emphasis added). However, the stated purpose of the policy is “[t]o
safeguard a mentally ill or emotionally disturbed person who does not voluntarily seek medical
assistance.” Id. (emphasis added). In the City’s view, NYPD’s policy on emotionally disturbed
persons attaches only once an officer personally observes an individual displaying behavior that
reflects a risk of harm to themselves or others. See Deposition of Theresa Tobin, Dkt. No. 143,
Ex. 26, at 42:17–45:18.
But the record contains significant evidence that the City’s view does not comport with
how the NYPD has historically understood its policy. NYPD’s training materials suggest that
officers may identify an emotionally disturbed person based on reports of mental illness and

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violent behavior. See, e.g., Def. Counter 56.1 ¶ 15. Dr. Telesco opined that the detectives
should have recognized Felix as a potential emotionally disturbed person based on his diagnosis
of paranoid schizophrenia and the allegations that he had committed a violent assault only days
before. Telesco Report at 8. The Firearms Discharge Review Board report reached a similar
conclusion. Id. at 9. A reasonable juror could draw different inferences based on how they
weighed this evidence and how they assessed the credibility of Dr. Telesco and Chief Tobin.
Nor would a finding that NYPD’s policy on emotionally disturbed persons did not apply
to these circumstances foreclose a claim against the City for failure to train. To the contrary, if
training provided to officers was silent on how officers should approach a suspect of a violent
crime with paranoid schizophrenia until the officers were enmeshed in a physical confrontation,
a reasonable juror could readily conclude that the training was inadequate. See Telesco Report at
9 (proper training would have called for the detectives to “back off and call their supervisor for
guidance” before gaining access to Felix’s apartment).
The City’s contention that the detectives never had an opportunity to attempt to
communicate with Felix prior to entering his apartment overlooks record evidence as to possible
actions the detectives could have taken, with proper training, to avoid escalating the situation.
The Telesco Report, quoting the President’s Task Force on 21st Century Policing and the 2017
National Consensus Policy on Use of Force, noted that de-escalation techniques may include
“command presence, advisements, warnings, verbal persuasion and tactical repositioning.”
Telesco Report at 9. Both the NYPD training materials and the Firearms Discharge Review
Board report reflect that officers should generally call for a supervisor or an emergency services
unit rather than attempting to approach an emotionally disturbed person. See id.; Patrol Guide
Procedure No. 216-05; cf. Def. Counter 56.1 ¶ 3 (arguing that these techniques are not possible

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or necessary in all circumstances). The detectives could have—and a reasonable juror could
conclude they should have—called for a supervisor or employed isolation and containment
techniques rather than entering Felix’s apartment, chasing him through the lobby, and engaging
him in a physical altercation. See Telesco Report at 12.
Finally, that the Plaintiffs allege intentional wrongdoing by the detectives does not defeat
causation. To be sure, a municipality may not be held liable for a failure to train because an
officer flouts their training. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 130 (2d Cir.
2004). But misconduct—even flagrant misconduct—may trigger liability if the risk of
constitutional violations is high without adequate training. Walker, 974 F.2d at 297–98.
Contrary to the City’s position that deficient training cannot be at fault for intentional
misconduct like shooting someone who posed no danger to officers, the use of deadly force
against a fleeing suspect was the paramount example cited by the Supreme Court in Canton as
supporting liability for failure to train. Id. (citing Canton, 489 U.S. at 390 & n.10). A
reasonable juror could conclude that, but for the City’s failure to provide adequate training,
Carter would not have engaged Felix in a physical altercation that dramatically increased the risk
of the use of deadly force.
The Court therefore denies the City’s motion for summary judgment as to the failure-totrain claim.
2. Disability Discrimination
The City also moves for summary judgment on the disability discrimination claims. Title
II of the Americans with Disabilities Act (“ADA”) forbids the denial of benefits, programs, or
services to individuals with disabilities who are otherwise qualified to receive them. 42 U.S.C. §
12132. “To prove a violation of Title II, a party must therefore establish: (1) that he is a

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qualified individual with a disability; (2) that he was excluded from participation in a public
entity’s services, programs or activities or was otherwise discriminated against by a public entity;
and (3) that such exclusion or discrimination was due to his disability.” Hargrave v. Vermont,
340 F.3d 27, 34–35 (2d Cir. 2003) (internal quotation marks omitted). A claim under the
Rehabilitation Act requires the same showing. Fulton v. Goord, 591 F.3d 37, 42 n.1 (2d Cir.
2009).
This Court previously held that the Plaintiffs had stated a claim for violation of the ADA
and Rehabilitation Act. Felix I, 344 F. Supp. 3d at 664. The parties agree that the ADA requires
police departments to make reasonable accommodations for disabled suspects. See, e.g.,
Morales v. City of New York, No. 13-cv-7667 (RJS), 2016 WL 4718189, at *7 (S.D.N.Y. Sept. 7,
2016); Williams v. City of New York, 121 F.Supp.3d 354, 368 (S.D.N.Y. 2015); Wagner v. City
of New York, No. 14-cv-2521 (VEC), 2015 WL 5707326, at *7 (S.D.N.Y. Sept. 28, 2015);
Valanzuolo v. City of New Haven, 972 F. Supp. 2d 263, 273–74 (D. Conn. 2013); Anthony v. City
of New York, No. 00-cv-4688 (DLC), 2001 WL 741743, at *11 (S.D.N.Y. July 2, 2001); Woods
v. City of Utica, 902 F. Supp. 2d 273, 280 (N.D.N.Y. 2012); Ryan v. Vt. State Police, 667 F.
Supp. 2d 378, 389 (D. Vt. 2009). The ADA’s implementing regulations explicitly acknowledge
schizophrenia as a disability covered by the ADA. Felix I, 344 F. Supp. 3d at 644 (citing 28
C.F.R. § 35.108(d)(2)(iii)(K)). The same evidence that would allow a reasonable juror to
conclude that the City was deliberately indifferent to the rights of emotionally disturbed persons
supports the inference that the City was deliberately indifferent to the risk of disability
discrimination. See id.; Williams, 121 F. Supp. 3d at 374–75.
The City argues that it is nonetheless entitled to summary judgment on the disability
discrimination claims for two reasons. First, it contends that the detectives were not aware of

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Felix’s current mental state before they saw him fleeing down the fire escape. Second, the City
again seeks refuge in its interpretation of the NYPD’s policy on emotionally disturbed persons,
which the City claims would not require officers to call for backup until they personally
observed Felix engaging in behavior that reflected a risk of serious injury to himself or others.
The City’s first argument neglects substantial evidence in the record. It is undisputed that
the detectives learned of Felix’s mental health diagnosis and that he was suspected of a violent
crime before going to his apartment to confront him. Felix II, 408 F. Supp. 3d at 306; Plf.
Counter 56.1 ¶¶ 1–3, 6. Even if they had doubts about Felix’s mental state at that time, or were
unsure they would find him in his apartment, the City does not articulate any reason why those
doubts should have persisted after the detectives saw Felix flee down the fire escape. At either
of these junctures, the detectives could have taken the actions suggested by the Patrol Guide, the
Telesco Report, or the Firearms Discharge Review Board report. See Patrol Guide Procedure
No. 216-05; Telesco Report at 9. A reasonable juror could conclude that the detectives had the
opportunity to make a reasonable accommodation for Felix’s disability and failed to do so.
The City’s reliance on its interpretation of the NYPD’s definition of an emotionally
disturbed person is also misplaced. Conduct may violate the ADA and Rehabilitation Act even if
it comports with a city’s internal policies and procedures. The disability discrimination statutes
apply to individuals with disabilities like schizophrenia—not merely individuals who are also
displaying the behavior the City contends would be required to deem them emotionally disturbed
persons under its internal policies. See 28 C.F.R. § 35.108(d)(2)(iii)(K). Indeed, this Court
rejected precisely this argument in its prior order. See Felix I, 344 F. Supp. at 644 (“Defendant’s
suggestion that Mr. Felix was not behaving in an emotionally disturbed manner and that he did
not appear to be a threat to himself or others, even if accurate or creditable at this stage, does not

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contradict Plaintiffs’ well-pled allegation that Mr. Felix was entitled to the ADA and
Rehabilitation Act’s protections.”). A reasonable juror could conclude that Felix was a qualified
individual with a disability covered by the ADA and Rehabilitation Act.
The Court therefore denies the City’s motion for summary judgment as to the disability
discrimination claims.
B.

Bifurcation

Federal Rule of Civil Procedure 42(b) affords district courts wide discretion to bifurcate
a trial to further convenience, avoid prejudice, or promote judicial efficiency. Amato v. City of
Saratoga Spring, 170 F.3d 311, 316 (2d Cir. 1999). Courts in this district have taken a range of
approaches to the bifurcation of claims against individual officers from claims against
municipalities. See, e.g., Brown v. City of New York, No. 13-cv-6912 (TPG), 2016 WL 616396,
at *2 (S.D.N.Y. Feb. 16, 2016) (“Courts in this Circuit favor bifurcating Monell claims.”
(citation omitted)); Jeanty v. Cty. of Orange, 379 F. Supp. 2d 533, 549 (S.D.N.Y. 2005) (“[T]he
presumption is that all claims in a case will be resolved in a single trial, and it is only in
exceptional circumstances where there are special and persuasive reasons for departing from this
practice that distinct causes of action asserted in the same case may be made the subject of
separate trials.” (internal quotation marks and citations omitted)). Second Circuit precedent
makes clear that consideration of the factors in Rule 42(b) “is ‘firmly within the discretion of the
trial court.’” Katsaros v. Cody, 744 F.2d 270, 278 (2d Cir. 1984) (quoting In re Master Key
Antitrust Litigation, 528 F.2d 5, 14 (2d Cir. 1975)).
The Court finds that the City’s arguments in favor of bifurcation do not overcome the
presumption that all claims should be resolved in a single trial. In this Court’s experience,
bifurcation often results in greater burden on court resources and significant delay to the entry of

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final judgment. Although a finding that no constitutional violation occurred could obviate the
need for testimony regarding the Monell claim, those gains in judicial efficiency are likely to be
outweighed by the efforts required to schedule and prepare for separate trials. Moreover, even if
the detectives prevailed on the § 1983 claims, trial might still be necessary on the disability
discrimination and state-law claims against the City. The Court is confident that carefully
crafted limiting instructions can eliminate any risk of undue prejudice to the detectives resulting
from evidence offered against the City. See Jeanty, 379 F. Supp. 2d at 550 (collecting cases).
The Court therefore declines to exercise its discretion to order separate trials.
C.

Expert Testimony

The City also seeks to exclude testimony by the Plaintiff’s expert witness, Dr. Telesco.
“It is a well-accepted principle that Rule 702 embodies a liberal standard of admissibility for
expert opinions, representing a departure from the previously widely followed, and more
restrictive, standard of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).” Nimely v.
City of New York, 414 F.3d 381, 395 (2d Cir. 2005) (citing Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 588 (1993)). “[B]y loosening the strictures on scientific evidence set by Frye,
Daubert reinforces the idea that there should be a presumption of admissibility of evidence.”
Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995). In Daubert, “the Court expressed its faith in
the power of the adversary system to test ‘shaky but admissible’ evidence.” Id. (quoting
Daubert, 509 U.S. at 596). After determining that an expert witness is qualified, this standard
requires a district court to assess whether an experts proffered testimony has a “sufficiently
‘reliable foundation,’” considering the non-exhaustive factors enumerated in Daubert and Rule
702. Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting
Daubert, 509 U.S. at 597).

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“Courts typically admit police expert testimony, based solely on the expert’s professional
experience, where it is offered to aid the jury’s understanding of an area not within the
experience of the average juror.” Cerbelli v. City of New York, No. 99-cv-6846 (ARR) (RML),
2006 WL 2792755, at *8 (E.D.N.Y. Sept. 27, 2006) (collecting cases). Courts generally consider
police practice testimony reliable when it is within the testifying expert’s professional experience
and the expert has considered the relevant documents. Id. However, the Second Circuit has held
that expert testimony is not admissible where the expert usurps the jury’s role by opining on an
issue law or relies on speculative assumptions. See United States v. Duncan, 42 F.3d 97, 103 (2d
Cir. 1994); Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 22 (2d Cir. 1996).
The City contends that Dr. Telesco’s opinions contain a number of impermissible legal
conclusions and opinions based on speculation. The Court disagrees that the Telesco Report is,
on the whole, based on speculation or improperly premised on the assumption that Felix was an
emotionally disturbed person. Dr. Telesco was careful to articulate the bases for her opinions,
which included her extensive experience training NYPD instructors on issues related to
emotionally disturbed persons, review of the relevant NYPD policies, procedures, and training
materials, and study of respected academic sources. Dr. Telesco explained in detail how the
detectives could have applied CIT principles to avoid escalating the confrontation with Felix. Id.
at 8 (“Detective Carter not only failed to ISOLATE and CONTAIN David Felix but escalated the
incident . . . .”); id. at 9 (“Detective Carter’s escalation and the decision to take David Felix into
custody demonstrates a lack of recognition that he was potentially encountering a person with a
mental illness who had recently been engaged in violent felonious conduct.”). In determining
that the detectives should have treated Felix as a potential emotionally disturbed person, Dr.
Telesco relied on the same common-sense factors that the Firearms Discharge Review Board

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report concluded should have caused the detectives to call for backup—the detectives knew Felix
“resided at the ‘Bridge’ a residential facility specifically for people with mental illness, had a
diagnosis of paranoid schizophrenia, was taking medication for mental illness, and had a history
of violence.” Id. at 8–9.
However, the Court agrees with the City that two of the statements in the Telesco Report
cross the line and offer impermissible legal conclusions. First, the Telesco Report stated that
“David Felix would have been alive and treated for his schizophrenic symptoms, if the
Detectives involved in this case had received the appropriate level of training as should be
expected of one of the largest police agencies in the country.” Telesco Report at 10. Although
Dr. Telesco is qualified to testify as to whether certain police tactics increase the risk of death to
mentally ill or emotionally disturbed persons in general, the conclusion that the lack of
appropriate training caused Felix’s death in this particular case impermissibly substitutes her
expert opinion for the factfinding function of the jury. See Cerbelli, 2006 WL 2792755, at *11
(citing Duncan, 42 F.3d at 101). Second, the Telesco Report stated that “no exigent or
emergency circumstances existed that would have justified the detectives to take the action they
did.” Telesco Report at 8–9. The Second Circuit has held that expert testimony that police
action was not “justified under the circumstances” offers an impermissible legal conclusion.
Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992). Whether the detectives were justified in
entering Felix’s apartment at the very least “communicat[es] a legal standard—explicit or
implicit—to the jury.” Id.
The Court therefore grants the City’s motion to limit Dr. Telesco’s testimony as follows:
Dr. Telesco shall not testify as to the ultimate causal relationship between NYPD’s training and
Felix’s death, and Dr. Telesco shall not testify as to whether exigent or emergency circumstances

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justified the detectives in entering Felix’s apartment. The Court denies the City’s motion insofar
as it seeks to preclude Dr. Telesco’s testimony altogether or with respect to the other specific
statements the City objects to in its brief.
Conclusion
The City’s motion (Dkt. No. 130) is GRANTED in part and DENIED in part.
Specifically, the Court DENIES summary judgment as to both the failure-to-train claim and the
disability discrimination claims; DENIES the request for bifurcation; and GRANTS in part the
request to limit expert testimony. The Court will schedule a pretrial conference by separate
order.
SO ORDERED.

Dated: October 13, 2020
New York, New York

__________________________________
ALISON J. NATHAN
United States District Judge

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