Crimes - Witnesses - Expert Witness - Deliberate Indifference to Police Practices

Trek Fulater and Ryan M. Sollenne for defendants.

Blake Zaccagnino and Leonard D. Zaccagnino for plaintiff.

Plaintiff Dean Taylor (plaintiff) timely served an expert disclosure filing, to wit, plaintiff's expert disclosure dated March 28, 2025 (marked as hearing exhibit 1 and previously filed in New York State Courts Electronic Filing System [NYSCEF] as Document No. 88). Defendants opposed the expert disclosure on various grounds by way of a motion in limine (NYSCEF Doc No. 77). The motion was fully opposed by plaintiff and was heard for oral argument on April 17, 2025, at which time the court ordered a Frye hearing to be conducted on April 22, 2025, commencing at 10:00 a.m. which was thereafter mutually adjourned to 2:00. The hearing was ordered to determine the admissibility and scope of the proffered testimony of plaintiff's proposed expert witness, Anjana Malhotra, Esq., in support of plaintiff's Monell municipal liability cause of action against defendant City of Buffalo (the defendant city) under 42 USC § 1983 (see NYSCEF Doc No. 1, complaint, second cause of action). That cause of action is substantially grounded on the plaintiff's liability theory commonly known and referred to as "deliberate indifference" based on allegations of the Buffalo Police Department's (BPD) alleged long-time lack of cogent recognition of the history of complaints of malignant use of force filed for many years against its officers which has been compounded by its hierarchal failure to investigate those complaints and implement a clean and clear policy of definitive discipline to send a message to its members that such misconduct will not be tolerated.[*2]

The hearing proceeded with Ms. Malhotra being called by plaintiff's counsel for questioning on the three elements required to be shown to validate the proposed expert testimony: (1) the education, training, experience and skill set of the proposed expert witness in the field of proposed professional or scientific knowledge; (2) the ability of the witness to express and render an opinion on the subject matter to a reasonable degree of certainty; and (3) demonstrating that the proposed expert witness's testimony exceeded the knowledgeable "ken" of the average common man juror. The Court of Appeals has put the crux of the proper use and admissibility of an expert when such testimony is appropriately found to be needed "on an issue which involves a 'professional or scientific knowledge or skill not within the range of ordinary training or intelligence.' " (Selkowitz v County of Nassau, 45 NY2d 97, 102 [1978].) Tangentially, there are also cases where an expert has been allowed to testify on a restricted or limited basis (see Supensky{**88 Misc 3d at 194} v State of New York, 2 AD3d 1436 [4th Dept 2003] [as a witness to authenticate certain publications of standards and practices in the industry at issue]). In the realm of non-scientific or uniquely professional knowledge (e.g., medical or legal malpractice), the Court of Appeals has recognized that "particularly 'in the social science arena, we have measured the reliability of novel hypotheses and theories—not just methodologies—against the Frye standard.' " (People v Powell, 37 NY3d 476, 489-490 [2021] [citation omitted].) The present case comes under the penumbra of this overarching statement from the Court of Appeals which was further expounded upon with its reiteration that

" '[i]t is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized knowledge of an expert witness.' " (Id. at 490 [citation omitted], quoting People v Taylor, 75 NY2d 277, 288 [1990].)

Ms. Malhotra testified extensively with respect to her exemplary educational and academic achievements, buttressed by her professional work experience with the New York State Attorney General's Office assigned to the Civil Rights Bureau, her affiliated time and involvement as a teaching and clinical studies professor at the University of Buffalo Law School, while also immersing herself on a continuing course of legal education in the field of civil rights with numerous courses at John Jay College addressing the threshold issues of civil and constitutional rights under the Federal and State Constitutions and the rights and remedies to be recognized when violations occur, as well as her time, research and extensive role as the lead supervisor and principal author of a clinical study report dated and issued to the New York State Attorney General's Office on August 30, 2017, relating to the pattern of policies, procedures and practices of the BPD relative to its course of dealing with citizen-filed complaints of "use of force" or "excessive use of force" by officers of the BPD (such reports being filed either directly by the complainant citizen with the BPD or its Internal Affairs Department [IAD] [or by way of the complainant filing a lawsuit, regardless of whether he/she filed an IAD report] as well as those reports internally reported by officers under the BPD's Manual of Policies [MOP]) (the AG Report). The full depth of the witness's educational, professional{**88 Misc 3d at 195} work and related experience fully satisfied prong one of the three-step analysis notwithstanding the fact that there was only tangential reference to Ms. Malhotra ever being previously found to [*3]qualify as an "expert" witness by a trial court.^[FN*]

Ms. Malhotra was not asked pointedly about prong two, but based on her other testimony the court reasonably infers that she would have answered any inquiry about her ability to render an opinion on most of the underlying issues in dispute with a reasonable degree of certainty in the disciplinary field of "police practices" in the affirmative.

The challenging element of concern in this action stems from prong three: is the body of professed expertise and knowledge developed to review and examine the implementation of good and constitutionally compliant "police practices" a field of unique human knowledge that has been customarily associated with needing expert testimony. It has been held that in cases where an expert has been allowed to testify about common and ordinary negligence where his testimony "did not exceed the scope of common knowledge, the admission of such proof constituted reversible error" (Berger v Tarry Fuel Oil Co., 32 AD3d 409, 409 [2d Dept 2006] [citations omitted] [emphasis added]). Indeed, based on the hearing record, it is unclear whether the "experts in my field" referred to by the witness have been found to qualify as being in a field of special, unique, professional or scientific knowledge. See Chase Scientific Research v NIA Group (96 NY2d 20 [2001]) for a digesting of the critical analysis given to this issue and how it was found to be very restrictive by the Court of Appeals.

Multiple cases involving the section 1983 cause of action raised in this action have found expert testimony (or sworn expert affidavit submissions) to be relevant. In Vann v City of New York (72 F3d 1040 [2d Cir 1995]), the court recognized and adopted two lines of potential evidentiary support for a plaintiff to "establish the pertinent custom or policy by showing that the municipality, alerted to the possible use of excessive force by its police officers, exhibited deliberate indifference." (Id. at 1049.) The court continued by saying,

"the plaintiff must show that the need for more or better supervision to protect against constitutional violations was obvious. An obvious need may be{**88 Misc 3d at 196} demonstrated through proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents." (Id. [citation omitted].)

Essentially, that's part one of the available line of proof that could potentially support a plaintiff's layman's efforts to make the case. The court then went on as follows:

"Deliberate indifference may also be shown through expert testimony that a practice condoned by the defendant municipality was 'contrary to the practice of most police departments' and was 'particularly dangerous' because it presented an unusually high risk that constitutional rights would be violated." (Id. at 1049 [citations omitted].)

More cogently, the Vann court explicitly noted that the defendant's argument that its decision in a prior case, Sarus v Rotundo (831 F2d 397 [2d Cir 1987]), that found no liability for deliberate indifference where a municipality had adopted supervisory mechanisms for dealing with problem officers, was misplaced by reason of the fact that "[t]he plaintiffs in Sarus presented no evidence as to the municipality's response to any prior incident of misconduct, no evidence that superior methods [*4]were in use in other police departments, and no expert testimony as to proper police procedures." (Vann at 1050 [emphasis added].)

The acceptable use of expert testimony, albeit in the form of an affidavit, in a Monell claim lawsuit was more recently recognized with explicit reference to Vann as the source for laying out the test for section 1983 liability in Jackson v City of Saratoga Springs (81 Misc 3d 490 [Sup Ct, Saratoga County 2023]). In an exhaustive and exquisitely drafted opinion, Supreme Court Justice Buchanan digested the core elements of proof in one of these cases pointedly, as follows:

"Proof of deliberate indifference can take the form of repeated complaints of civil rights violations with no meaningful attempt to investigate or to prevent further incidents. It can also be shown by expert testimony that a practice condoned by the municipality presented an unusually high risk that constitutional rights would be violated." (Id. at 501 [citation omitted].){**88 Misc 3d at 197}

Based on the foregoing it is the court's determination and decision to allow the plaintiff to proffer his proposed expert witness to testify specifically and consistent within the parameters of the form of expert proof outlined in the above quoted language of the courts in Vann and Jackson on the elements of deliberate indifference by way of credible and recognizable data shown to be within the use and acceptance of the professionals in the field of "police practices" to examine the generally accepted policies, procedures and practices recognized by the professionals in that field of law enforcement behavior as the baseline of performance by a local law enforcement agency, in this case the BPD, to uphold constitutional protections against violations of physical assault and harm in violation of the Fourth Amendment of the Constitution, and what degree of deviation from that baseline is viewed as improper and creating the risk of causing such Fourth Amendment harm to the public.

The expert witness shall not be asked or permitted to testify about the details of settlements or discuss the disposition reached in other cases of alleged excessive use of force. The unique facts of those cases are not to be interposed or put before the jury in the trial of this action. The scope of the witness's testimony must be strictly connected to and derived from credible foundational sources of data that show the baseline for compliance with the generally accepted and fundamental policies, procedures and practices to be followed by all relevantly relatable law enforcement agencies and what the statistical deviation from such baseline results may allow counsel for the parties to argue to the jury, their client's position on whether the BPD's behavior and actions should be viewed to hold or not hold it (the BPD) accountable for some measure of deliberate indifference for its "conscious decision to ignore them [such policies, etc.], effectively ratifying them." (Jackson at 501, quoting Amnesty Am. v Town of W. Hartford, 361 F3d 113, 126 [2d Cir 2004].) The expert witness is not to be asked or otherwise coaxed or nuanced to provide any opinion on the foregoing issue which is the ultimate question of fact to be decided by the jury.

Accordingly, the defendants' motion in limine on the preclusion of the plaintiff's expert disclosure and proffered expert{**88 Misc 3d at 198} testimony is denied within the limitations for such testimony to be offered as set forth above.