Rosario v. City of New York et al

Filing 457

ORDER: It is hereby ORDERED that Dr. Parker is precluded from testifying about Plaintiff's social media posts. The Court previously ruled that certain of Plaintiff's Facebook activities were excluded (Dkt. No. 308). It is not clear if the referenced social media posts are the same as the ones that were previously excluded. Defendants argue that social media posts are relevant because they are referenced in the "Materials Reviewed" section of Dr. Parkers report, but the mere fact the Dr. Parker reviewed the materials is not, on its own, sufficient to demonstrate probative value with respect to Dr. Parkers opinions. To the extent the referenced social media posts are similar to or the same as the ones previously excluded by the Court -- i.e., Plaintiff's postings about his damages being comparable to a Holocaust survivor and Plaintiffs Facebook friend request -- any probative value is outweighed by the potential for prejudice under Federal Rule of Evidence 403, as such posts may elicit sympathy or indignation from the jury, as further set further herein. (Signed by Judge Lorna G. Schofield on 8/4/2022) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RICHARD ROSARIO,
:
Plaintiff,
:
:
-against:
:
CITY OF NEW YORK, et al.,
:
Defendants. :
:
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18 Civ. 4023 (LGS)
ORDER

LORNA G. SCHOFIELD, District Judge:
WHEREAS, on July 20, 2022, and July 27, 2022, Plaintiff filed letters seeking
clarification on the Court’s prior rulings on the admissibility of Plaintiff’s alleged bad acts
through Defendant’s expert, Dr. Parker (Dkt. Nos. 410, 431).
WHEREAS, on July 26, 2022, and July 29, 2022, Defendants filed letters in response
identifying the alleged bad acts about which Dr. Parker intends to testify and providing citations
to Dr. Parker’s report and/or deposition showing that she relied on each of the bad acts (Dkt. Nos.
426, 447). It is hereby
ORDERED that Dr. Parker is precluded from testifying about Plaintiff’s social media
posts. The Court previously ruled that certain of Plaintiff’s Facebook activities were excluded
(Dkt. No. 308). It is not clear if the referenced social media posts are the same as the ones that
were previously excluded. Defendants argue that social media posts are relevant because they are
referenced in the “Materials Reviewed” section of Dr. Parker’s report, but the mere fact the Dr.
Parker reviewed the materials is not, on its own, sufficient to demonstrate probative value with
respect to Dr. Parker’s opinions. To the extent the referenced social media posts are similar to or
the same as the ones previously excluded by the Court -- i.e., Plaintiff’s postings about his
damages being comparable to a Holocaust survivor and Plaintiff’s Facebook friend request -- any

probative value is outweighed by the potential for prejudice under Federal Rule of Evidence 403,
as such posts may elicit sympathy or indignation from the jury. It is further
ORDERED that Dr. Parker is precluded from testifying about the content of the videos
described in Defendants’ submissions. Dr. Parker stated in her supplemental report that videos of
Plaintiff demonstrated “[Plaintiff’s] pride in macho and tough behavior” (Dkt. No. 207-9).
Defendants cite a portion of Dr. Parker’s deposition where she discusses observations she made
after reviewing three videos of Plaintiff: (1) a video of Plaintiff driving in a car; (2) a video of
Plaintiff accepting an award and (3) a video of Plaintiff in his living room. The cited portion of
the deposition does not describe the videos in detail, but the referenced video of Plaintiff driving
in the car was previously excluded under Federal Rule of Evidence 403 (Dkt. No. 371). Based on
the cited portion of the deposition, it appears that Dr. Parker primarily relied on that previously
excluded video, which is excluded as prejudicial under Federal Rule of Evidence 403 because the
probative value is substantially outweighed by the potential for prejudice, as the video may
suggest that Plaintiff is a threatening person, including to Defendants in this action. In the cited
testimony offered by Defendants, Dr. Parker does not make any observations regarding the
referenced video of Plaintiff in his living room. Though it is unclear if the content of that video is
prejudicial, it does not appear to have been particularly relevant to Dr. Parker’s analysis. With
respect to the video where it appears Plaintiff is accepting an award, the content of the video is
not described, nor is it clear whether Dr. Parker based any opinion on that specific video, apart
from maybe observing that Plaintiff used curse words. Dr. Parker may describe her conclusions
with respect to the behavior she observed in the videos to the extent they are relevant. It is
further
ORDERED that Dr. Parker is precluded from testifying about Plaintiff’s infidelity.
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Evidence of Plaintiff’s infidelity was previously excluded (Dkt. No. 308). Though Dr. Parker’s
report concluded there was evidence of “impulsivity in sex” and “unstable relationships,” the
prejudicial effect of eliciting Plaintiff’s infidelity is substantially outweighed by the limited
probative value of identifying infidelity as a basis for Dr. Parker’s conclusion. Dr. Parker may
reference the fact that she concluded in her report that there was “evidence of impulsivity in sex”
and “unstable relationships,” but shall not describe Plaintiff’s infidelity. If Plaintiff opens the
door by suggesting there is no basis for Dr. Parker’s conclusion regarding evidence of impulsivity
in sex and unstable relationships, then Dr. Parker may provide the basis for her opinion. It is
further
ORDERED that Dr. Parker is precluded from testifying about Plaintiff’s criminal history,
including the vacated 1996 conviction for robbery and 1992 arrest for robbery. Argument and
evidence regarding the 1992 robbery arrest and 1996 vacated conviction were previously
excluded (Dkt. Nos. 308, 386), subject to a limited exception that Plaintiff’s status as a suspect in
the 1996 robbery investigation was admissible (Dkt. Nos. 340, 386). Defendants previously
represented that they did not intend to offer evidence related to the 1992 robbery arrest (Dkt. No.
386). Dr. Parker’s report includes a “Prior Arrest Record” section and Defendants cite a portion
of the report where, in describing Plaintiff’s personality functioning, Dr. Parker notes that
Plaintiff “may have been involved in illegal occupations or engaged in criminal acts involving
theft, destruction of property, or physical aggression towards others.” Dr. Parker may reference
this conclusion to the extent her testimony establishes that it formed a basis for her opinion
regarding Plaintiff’s ASPD diagnosis, but may not reference or discuss any of the underlying
criminal conduct as the probative value of providing specific examples to support her conclusion
is substantially outweighed by the prejudicial effect of the jury hearing Plaintiff’s criminal
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history. It is highly prejudicial to reveal the specifics of Plaintiff’s criminal history, which
includes uncharged conduct and vacated convictions, particularly in light of the fact that
Plaintiff’s innocence has become a focal point of the trial. It is further
ORDERED that Dr. Parker may testify about Plaintiff’s lack of remorse regarding events
in his life and the extent to which he feels wrongly persecuted, but Dr. Parker may not reference
or discuss any criminal conduct in doing so. Defendants contend that Plaintiff’s lack of remorse
is a hallmark of an ASPD diagnosis but cite only one portion of Dr. Parker’s report where she
described Plaintiff’s feelings of persecution and, more generally, that he does not “talk about
responsibility in any of the events that occurred in his life.” This statement does not suggest that
Plaintiff exhibited a lack of remorse with respect to any criminal conduct, and eliciting
information regarding specific crimes would be prejudicial under Federal Rule of Evidence 403,
for the reasons stated above.
Dated: August 4, 2022
New York, New York

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