Rapp v. Fowler
- Lewis Kaplan
- 1:20-cv-09586
- U.S. District Court · Southern District of New York
- 2
In Rapp v. Fowler, Judge Kaplan denied reconsideration, allowed limited expert cross-examination, and required advance notice before certain questioning.
The order affected the defendant’s ability to cross-examine the plaintiff’s expert and the plaintiff’s counsel’s ability to ask about certain third-party accusations during the proceedings.
What happened
In Rapp v. Fowler, the defendant asked the court to reconsider or clarify parts of an earlier order concerning two evidence motions. One motion involved whether certain alleged incidents could be admitted despite a rule protecting sexual-assault plaintiffs from certain evidence; the other concerned questions about accusations by third parties.
The court denied reconsideration of its rulings on the first motion because the defendant had not shown that the court overlooked important facts or law. But it ruled that the defendant could cross-examine the plaintiff’s expert about data concerning the Tyrell and masseuse incidents, to help the jury evaluate the expert’s opinion, subject to limits against unfair prejudice. The court did not decide whether witnesses could be questioned about the accuracy or completeness of information given to the expert.
For the second motion, the court declined to issue a general ruling about questions concerning publicly identified third-party accusations. It required the plaintiff’s counsel to disclose any planned inquiry to defense counsel first and, if there was an objection, obtain a ruling from the court. Judge Lewis A. Kaplan ordered the clerk to terminate the motion docket entry.
The detailed version
- Rapp v. Fowler · No. 1:20-cv-09586
- Lewis Kaplan
- Oct. 9, 2022
Background
The defendant moved for reconsideration or clarification of parts of the court’s earlier rulings on two pretrial evidence motions. The order addresses the defendant’s motion at docket entry 285.
Motion No. 2
The defendant sought reconsideration of rulings concerning whether certain alleged incidents were admissible over an objection under Federal Rule of Evidence 412(a). The court denied reconsideration because the defendant had not established that the court overlooked any material facts or law.
The court separately addressed the defendant’s argument that he should be allowed to ask the plaintiff’s expert witness on cross-examination about information the plaintiff had provided to her and other data she possessed concerning those incidents. The court explained that this questioning would not use the information to prove that it was true. Instead, it would concern the basis for the expert’s opinion.
Under Rules 703 and 705, an expert may be questioned about the facts and data underlying the expert’s opinion, subject to Rule 403. Rule 403 permits exclusion when unfair prejudice substantially outweighs probative value. Applying that standard, the court concluded that the defendant could cross-examine the expert about the data she had concerning the Tyrell and masseuse incidents. The court expressly did not decide issues concerning the accuracy or completeness of data that a witness provided to the expert.
Motion No. 4
The defendant sought clarification concerning whether the plaintiff could question the defendant or another witness about third-party accusations, apart from an accusation by Mr. Holtzman, when the third parties had been publicly identified. The court declined to rule on that request in the abstract. It directed the plaintiff’s counsel not to make such an inquiry without first informing defense counsel of the intended questioning and its nature. If defense counsel objected, plaintiff’s counsel had to obtain a ruling from the court before proceeding.
Disposition
The court denied the request for reconsideration concerning Motion No. 2, permitted the specified cross-examination of the expert, and declined to issue the requested abstract clarification concerning Motion No. 4 while imposing the advance-notice and court-ruling procedure. Judge Lewis A. Kaplan ordered the clerk to terminate docket entry 285.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.