Rosario v. City of New York
- Lorna Schofield
- 1:18-cv-04023
- U.S. District Court · Southern District of New York
- 16
Rosario v. City of New York: Judge Schofield granted Rosario’s motion in part, excluding one diagnosis, and denied the remaining expert-testimony challenges.
Richard Rosario, the City of New York, the NYPD detectives named as defendants, and the parties’ expert witnesses; the ruling determines which expert opinions may be presented in the remaining case.
What happened
In Rosario v. City of New York, Richard Rosario and the defendants each challenged expert testimony in Rosario’s lawsuit over his alleged wrongful conviction and imprisonment. Rosario sought to exclude parts of two defense experts’ opinions, while the defendants sought to exclude testimony from Rosario’s two experts.
The court excluded defense expert Steven A. Fayer’s opinion diagnosing Rosario with antisocial personality disorder because Fayer did not explain why he departed from a required diagnostic criterion. The court allowed the challenged testimony from defense expert DeAnsin G. Parker and Rosario’s experts Jennifer Dysart and Bhushan Agharkar, finding their opinions sufficiently reliable and useful for the jury.
Judge Schofield granted Rosario’s motion to exclude Fayer’s testimony in part and denied the other expert-testimony challenges. Fayer’s antisocial-personality-disorder opinion was excluded, but his other opinions were not excluded by this ruling.
The detailed version
- Rosario v. City of New York · No. 1:18-cv-04023
- Lorna Schofield
- May 13, 2021
Background
Richard Rosario seeks damages under 42 U.S.C. § 1983 from the City of New York and certain New York City Police Department detectives based on his alleged wrongful conviction and imprisonment. After an earlier partial grant of the defendants’ summary-judgment motion, the remaining claims concern denial of a fair trial, failure to intervene, malicious prosecution against certain detectives, and the City’s responsibility for malicious prosecution.
This opinion addresses the admissibility of expert testimony under Federal Rule of Evidence 702. Rosario moved to exclude portions of the opinions and testimony of the defendants’ experts, psychiatrist Steven A. Fayer, M.D., and neuropsychologist DeAnsin G. Parker, Ph.D. The defendants moved to exclude the opinions and testimony of Rosario’s experts, psychologist Jennifer Dysart, Ph.D., and neurologist and psychiatrist Bhushan Agharkar, M.D.
Legal standard
Rule 702 permits qualified experts to testify when their specialized knowledge will help the jury, their opinions are based on sufficient facts or data, their methods are reliable, and they reliably applied those methods to the case. The court acts as a gatekeeper by deciding whether expert testimony rests on a reliable foundation and is relevant. The party offering the testimony must establish these requirements by a greater-than-50-percent standard.
Fayer’s testimony
Fayer diagnosed Rosario with antisocial personality disorder, among other conditions. Rosario challenged the portions of Fayer’s opinion concerning that diagnosis. The court found the antisocial-personality-disorder opinion unreliable because Fayer relied on the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, but his report did not address the manual’s requirement concerning conduct before age fifteen. Fayer also testified that he disagreed with that requirement, yet his report did not explain or justify his departure from it.
The court emphasized that the problem was not simply that Fayer departed from the diagnostic manual. The problem was the unexplained analytical gap between the manual’s criteria and his diagnosis. The court therefore excluded Fayer’s opinion and testimony concerning antisocial personality disorder. It did not exclude any other opinions Fayer might offer.
Parker’s testimony
Parker also offered an opinion diagnosing Rosario with antisocial personality disorder and other conditions. The court found Parker’s opinion reliable because Parker addressed all four diagnostic criteria for antisocial personality disorder and stated that Rosario’s conduct before age fifteen supported the diagnosis. Parker testified that she had an adequate basis for that conclusion, including information that Rosario had been getting into fights and trouble before leaving school around age fourteen or fifteen.
The court held that disagreements about the sufficiency of Parker’s underlying facts could be addressed through cross-examination and competing evidence rather than exclusion. It also found the diagnosis relevant to causation and damages because the defendants offered it as an alternative explanation for Rosario’s conduct while incarcerated. The court concluded that the need for the jury to evaluate the cause and extent of Rosario’s claimed mental-health injuries outweighed any unfair prejudice from the diagnosis.
Dysart’s testimony
Dysart offered opinions about eyewitness identification evidence and police identification procedures. She concluded that it was highly unlikely that three witnesses would independently select Rosario from hundreds of photographs without improper suggestion, whether Rosario was innocent or guilty, and that an improperly suggestive initial process could have caused later identifications.
The court found Dysart qualified based on her doctorate in social psychology, professorship, publications, treatise, and experience presenting to police officers about eyewitness identification. The court rejected the argument that she needed to be an expert specifically on New York City Police Department policies because her opinions concerned identification procedures generally.
The court also found Dysart’s methods reliable and her testimony useful to the jury. Her use of different factual assumptions did not show bad faith, and she did not claim to decide whether Rosario was innocent or guilty. Her opinions about stress, weapon focus, memory, identification procedures, lineup fillers, show-ups, post-identification feedback, and mistaken eyewitness identification involved subjects that the court found were not merely matters of common sense.
Agharkar’s testimony
Agharkar offered opinions that Rosario suffered from post-traumatic stress disorder and an acquired brain injury resulting from his imprisonment, and that these conditions would have continuing effects. The defendants argued that his opinions lacked a reliable differential diagnosis, meaning a patient-specific process of considering and ruling out possible causes of an illness.
The court rejected those arguments. It found that Agharkar considered multiple possible causes and conditions, ruled some out, and relied in part on testing and analysis by another neuropsychologist. The court also rejected the challenge concerning panic disorder because Agharkar had not diagnosed Rosario with that disorder. The court found that Agharkar’s report discussed the relevant post-traumatic-stress-disorder factors and did not need to list every diagnostic criterion in a formal sequence.
The court further found Agharkar’s discussion of Rosario’s history and symptoms appropriate and concluded that alleged discrepancies and weaknesses in the underlying information could be explored through cross-examination. It also found that his supplemental report properly responded to the defense experts and did not improperly take over the court’s role.
Disposition
Judge Lorna G. Schofield ordered the following:
- Rosario’s motion to exclude Fayer’s testimony was granted in part. Fayer’s opinion and testimony concerning antisocial personality disorder were excluded as unreliable. - Rosario’s motion to exclude Parker’s testimony was denied. - The defendants’ motion to exclude Dysart’s testimony was denied. - The defendants’ motion to exclude Agharkar’s testimony was denied.
The court directed the Clerk of Court to close the motions at Docket Nos. 206 and 209.
Read the full 16-page opinion on CourtListener, the free public archive maintained by the Free Law Project.