Disabled In Action v. City Of New York
Disabled In Action v. City Of New York
Opinion of the Court
Disabled in Action of Metropolitan New York and Brooklyn Center for Independence of the Disabled, two nonprofit organizations that provide services and advocacy for people with disabilities, along with Paula Wolff, Jean Ryan, Edith Prentiss, and Dustin Jones, New York City residents with mobility disabilities (collectively, "Plaintiffs"), filed this putative class action against the City of New York, the New York City Police Department, and the Department's Commissioner (collectively, "Defendants"). See Dkt. 1 (Compl.) Plaintiffs allege that the majority of Defendants' seventy-seven police stations throughout New York City contain significant architectural barriers to people using wheelchairs, walkers, and other mobility devices. See id. ¶¶ 44-146. They claim that these barriers exclude people with mobility disabilities from critical public-safety services, programs, and activities in violation of Title II of the Americans with Disabilities Act ("ADA"),
DISCUSSION
Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides that a person "qualified as an expert by knowledge, skill, experience, training, or education" may offer opinion testimony so long as:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts....
While the party offering expert testimony bears the burden of establishing by a preponderance of the evidence that the testimony satisfies Rule 702, "the district court is the ultimate gatekeeper." United States v. Williams ,
*244Daubert v. Merrell Dow Pharm., Inc. ,
The threshold question for the Court is whether the "proffered expert testimony is relevant." Amorgianos v. Nat. R.R. Passenger Corp. ,
"To warrant admissibility ... it is critical that an expert's analysis be reliable at every step." Amorgianos ,
I. Plaintiffs' Motion to Exclude Opinions of Defendants' Proposed Expert Pinto
The Court finds that the opinions of Defendants' proposed expert Antonio Pinto are not the product of reliable principles and methods reliably applied. Although the methodology underpinning Pinto's accessibility opinions leaves much to be desired, four particularly glaring methodological errors lead the Court to conclude that his testimony must be excluded: (1) Pinto's admission that he did not actually measure various building features on whose ADA compliance he purported to provide exact measurements, instead employing what he called an "eye test"; (2) Pinto and his surveying team's apparent failure to adhere to any identifiable and reliable technique for conducting the measurements they in fact undertook; (3) Pinto and his surveying team's arbitrary selection of which architectural measurements to include in their accessibility reports; and (4) Pinto's admission that he at least occasionally based his compliance determinations on outright speculation.
Before discussing each of those shortcomings, the Court notes as a threshold matter that Pinto's testimony and reports are relevant and, if admitted, would *245"help the trier of fact understand the evidence or ... determine a fact in issue." Fed. R. Evid. 702(a) ; see also Amorgianos ,
A. Use of the "Eye Test"
As common sense suggests, to assess accurately whether Defendants' stationhouses comply with ADA standards, Pinto and his surveying team had to measure the features of those stationhouses using reliable instruments and then compare the measurements to the relevant ADA accessibility standards. The Court finds that Pinto failed at the first step. At deposition, Pinto conceded that he employed what he called "an eye test" in measuring various architectural features of Defendants' stationhouses, including, for example, the uniformity of stair risers and treads. See Dkt. 93 ex. 2 (transcript excerpts of Pinto depo.) at 109-10 ("Q. How do you know that [the stair risers and treads] were uniform if you did not measure all of them? A. There's an eye test. You can tell in the most part that they're all-"). Measurements produced using an "eye test," however, are not measurements at all: they are mere guesses, precisely the kind of speculation and conjecture that courts in this circuit have long held inadmissible. See, e.g. , Zerega ,
Making matters worse, Pinto also admitted that the "eye test" is accurate only within "one or two inch[es] here or there"-an unsurprising revelation, but one that defeats Pinto's insistence that his "eye test" is reliable because he "ha[s] a very good eye for seeing measurements" and "[a]fter years at looking at things," he "can tell whether something is three feet or 4 feet without even a measurement." Dkt. 93 ex. 2 (transcript excerpts of Pinto depo.) at 110. While Pinto's "eye test" may be fine for many aspects of his job, "the difference between compliance and noncompliance with the standard of full and equal enjoyment established by the ADA is often a matter of inches." Chapman v. Pier 1 Imps. (U.S.) Inc. ,
B. Failure to Adhere to Any Identifiable and Reliable Measurement Techniques
Furthermore, Pinto's surveys of Defendants' stationhouses were performed in significant part by other employees of Urbahn Architects, PLLC, an architectural firm with which Pinto is associated. See Dkt. 93 ex. 2 (transcript excerpts of Pinto *246depo.) at 68-75. Yet Pinto could not say at deposition whether the members of his survey team employed any particular techniques for measuring architectural features to assess their compliance with ADA accessibility standards, let alone whether the techniques his team used are generally accepted as reliable amongst accessibility surveyors. See Daubert ,
C. Arbitrariness in Reporting Measurements
Pinto's testimony and reports are unreliable for yet another reason: of those architectural features he and his survey team undertook to measure, they arbitrarily decided which of their resulting measurements to include in Pinto's reports.
At deposition, Pinto testified that he and one of his associates had "developed a survey checklist" listing "all the items that needed to be surveyed" at each stationhouse, including, as Pinto put it, "[e]ach room, stairs, ramps and the criteria that the ADA requires for each of those measurements that are there, for instance, 36 inches between handrails, slope." Dkt. 93 ex. 2 (transcript excerpts of Pinto depo.) at 74, 75-76. Each member of the survey team brought a paper copy of the checklist to each survey and filled it out as he or she measured each stationhouse's architectural features. Id. at 76.
This methodology promptly went off the rails, however. Pinto admitted at deposition that his survey team "wrote down measurements that were not included in the survey" reports and that this practice "probably" extended to each stationhouse survey they undertook, though Pinto was unsure. Dkt. 93 ex. 2 (transcript excerpts of Pinto depo.) at 113-14. In fact, Pinto admitted that one of his reports omitted parking-area measurements that were taken during a survey in which he personally participated. Id. at 120 ("Q. Were you present at the survey of this police precinct? A. Yes. Q. Did you survey parking areas at this precinct? A. Yes. Q. Where is that in the report? A. It would be in the first four pages. It doesn't appear to be in there. Q. So you surveyed parking areas but you did not include[ ] them in your report, correct? A. Yes."). When asked why measurements he and his team took were not included in the reports, Pinto said that he could not "think of a reason" other than that his staff "might not have written them down" in the first place and *247that, if so, they were "not following [Pinto's] direction." Id. at 115-18. He also admitted that he himself did not consistently use the checklist he had prepared during the site surveys he attended, id. at 78 ("Yeah, sometimes I use photos, note pad, just write down observations. I don't need a checklist in all cases."), an admission that only further muddies the waters.
Given this testimony, it is unclear whether Pinto's survey team (1) measured architectural features relevant under the ADA Standards for Accessible Design but failed to report them, or (2) even worse, failed to measure relevant features altogether. In either case, Pinto's failure to adhere to a coherent standard for including or omitting measurements from his compliance reports suffices to render his opinions unreliable under Rule 702. At deposition, Pinto made clear that he purported to measure-and his reports purported to record-the measurements of "[e]ach room, stairs, ramps and the criteria that the ADA requires." Dkt. 93 ex. 2 (transcript excerpts of Pinto depo.) at 76. But his own testimony shows that he and his associates failed to follow his own chosen methodology for surveying Defendants' stationhouses. Pinto's compliance opinions, which are the results of a methodology that he acknowledges he did not follow, are therefore unreliable and inadmissible under Rule 702. See, e.g. , Amorgianos ,
D. Speculation
Finally, at least some of Pinto's opinions are concededly based on sheer speculation. See, e.g. , Boucher v. U.S. Suzuki Motor Corp. ,
Given the egregiousness of Pinto's failure to substantiate the assumptions underlying this particular compliance opinion, the Court is unable to conclude that his other opinions are "based on sufficient facts or data," as Rule 702(b) requires. As the party offering Pinto's testimony, it is Defendants' burden to show by a preponderance of the evidence that the whole of his testimony satisfies Rule 702. Williams ,
For all these reasons, Pinto's testimony is inadmissible under Rule 702(b)-(d).
*248II. Defendants' Motion to Exclude Opinions of Plaintiffs' Proposed Expert Hang
Defendants' renewed motion to exclude the testimony of Plaintiffs' proposed expert Kelly Hang is granted in part and denied in part. Specifically, Hang may offer opinions regarding the compliance (vel non ) of Defendants' stationhouses with the 1991 and 2010 ADA accessibility standards-the principal subject of her reports and testimony. To the extent, however, that Hang has offered (or intends to offer) any opinion on whether the conditions of Defendants' stationhouses causes individuals with mobility disabilities to "be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by [that] entity,"
A. Hang's Opinions on Whether Features of Defendants' Stationhouses Comply with the ADA Accessibility Standards
Hang's opinions regarding the compliance (vel non ) of Defendants' stationhouses with the 1991 and 2010 ADA accessibility standards are admissible under Rule 702. As a threshold matter, these opinions are relevant and would be helpful to the trier of fact in understanding the evidence and determining facts in issue. See Fed. R. Evid. 702(a) ; Amorgianos ,
Finally, Hang's compliance opinions are themselves reliable products of a reliable methodology reliably applied, as Rule 702(b)-(d) requires. Hang and an associate surveyed twenty-five of Defendants' stationhouses, measuring and photographing features relevant to accessibility and comparing the measurements to the ADA accessibility standards. See Dkt. 122 ex. 1 (transcript of Apr. 12, 2018 Hang depo.) at 28-29, 36, 40, 56, 61 (describing Hang's methodology); see also, e.g. , Dkt. 122 ex. 2 (Hang's 1st Precinct report) at 8-10 (cataloging accessibility barriers on 1st Precinct's exterior). Unlike with Pinto's opinions, the Court sees no reason-and Defendants offer none-to believe that Hang or her associate used unreliable measurement techniques (e.g., any sort of "eye test"); that they unreliably documented their measurements; that they engaged in any speculation or conjecture regarding the architectural features of Defendants' stationhouses; or that Hang incompetently compared her measurements to the relevant ADA standards. Hang's measurements and compliance opinions are therefore admissible under Rule 702.
B. Hang's Opinions (Vel Non ) Whether the Conditions of Defendants' Stationhouses Causes Individuals to Be Excluded from NYPD Services, Programs, or Activities
There is some confusion whether Hang has offered an opinion on whether the conditions of Defendants' stationhouses causes individuals with mobility disabilities to be excluded from NYPD's services, programs, or activities, see
An elevator is not provided in this multi-story building for vertical access to upper floors, which is only achieved by the central staircase. This staircase does not comply with ADAAG/ADAS. The staircase is the only form of access to the Detective Squad Room, the two Interview Rooms, and the two Line-up Rooms on the third floor. Thus, all services open to the public on the third floor are inaccessible, and these rooms were not assessed at the time of my survey.
Dkt. 122 ex. 2 at 7 (emphasis added). On the other hand, at her second deposition, Hang seems to have agreed with Defendants' counsel that her reports did purport to opine on whether any of NYPD's programs, services, and activities are inaccessible to individuals with mobility disabilities-the ultimate issue in determining Defendants' liability under Title II of the ADA:
Q. That report concluded that programs and services and activities offered *250by the New York City Police Department at the twenty-five facilities you surveyed were generally unavailable because they had barriers to accessibility. Is that right?
A. Yes. Physical barriers to accessibility. Yes.
Dkt. 118 ex. A at 6 (transcript excerpts of Jan. 17, 2019 Hang depo.); see also ex. B (transcript excerpts of Apr. 12, 2018 Hang depo.) at 73 (incomplete portion of exchange in which Hang appears to agree that she has offered "an expert opinion that the NYPD is excluding individuals with disabilities from public programs and services"). Because the materials submitted to the Court do not definitively show one way or the other whether Hang has proffered an opinion regarding Defendants' liability under
The short answer: she may not. At both depositions, Hang agreed with Defendants' counsel that she did not know what "programs, services, and activities that the NYPD offers and/or delivers" and did not "review any documents as to how those programs, services, and activities are offered or delivered." Dkt. 118 ex. A at 7; see also ex. B (transcript excerpts of Apr. 12, 2018 Hang depo.) at 73 ("Q. Did you review any documents with respect to what public programs and services the NYPD offers? A. No. Q. Do you know what programs and services the NYPD offers? A. Not until the survey started, but prior to that, no.... Q. Have you spoken with any individuals who claim to have tried but failed to get access to NYPD programs due to disability? A. No."). It is obvious that to reliably opine on whether NYPD's services, programs, and activities are accessible under the ADA notwithstanding architectural barriers at NYPD's stationhouses, an expert must be familiar with the services, programs, and activities NYPD offers. Given Hang's admissions that she is not, any opinions she might offer on this subject-which, again, is separate from the inquiry whether the stationhouses' architectural features comply with the ADA accessibility standards-are "based on data ... that are simply inadequate to support the conclusions reached," Amorgianos ,
*251This ruling, of course, preserves the bulk of Hang's opinions, which are almost entirely the result, to borrow Defendants' phrasing, "of simply measuring and identifying instances of non-compliance with the ADAAG/ADAS," Dkt. 119 (Mem. in Supp. of Mot. to Exclude Hang) at 9. As Plaintiffs' point out, see Dkt. 121 (Mem. in Opp. to Mot. to Exclude Hang) at 5, these opinions are not a bug but a feature: they are precisely the kinds of opinions the parties retained their respective experts to provide.
C. Defendants' Contention of Bias
Finally, the Court rejects Defendants' contention that Hang's "failure (at plaintiffs' direction) to determine whether or not any alleged deviations from ADAS/ADAAG are capable of remediation demonstrates not only an obviously flawed methodology, but also a fundamental bias" in her opinions warranting exclusion. Dkt. 119 (Mem. in Supp. of Mot. to Exclude Hang) at 7-9; see also Dkt. 125 (Reply in Supp. of Mot. to Exclude Hang) at 4-5 & n.2. Even if Hang's failure to consider the feasibility of remediation evidenced partiality or bias-and the Court is highly skeptical that it does-it is certainly not bias warranting exclusion under Rule 702. If Defendants believe that Hang is biased and that her opinions therefore ought to be disbelieved, they are welcome to marshal that argument when briefing summary judgment and to cross-examine Hang on the subject if there is a trial.
CONCLUSION
For the foregoing reasons, Plaintiffs' motion to exclude the testimony of Defendants' proposed expert Antonio Pinto [Dkt. 87-93] is GRANTED, and Defendants' renewed motion to exclude the testimony of Plaintiffs' proposed expert Kelly Hang [Dkt. 117-19] is GRANTED IN PART and DENIED IN PART. The Clerk of Court is respectfully directed to close docket entries 87 and 117.
Plaintiffs may file a second motion for partial summary judgment no later than April 5, 2019 . Defendants must file their response to Plaintiffs' motion no later than May 10, 2019 . Plaintiffs must file any reply in support of their motion no later than May 24, 2019 .
SO ORDERED.
In a December 10, 2018 order, the Court found Hang's testimony inadmissible under Fed. R. Civ. P. 37(c)(1) because Plaintiffs failed to disclose information relating to that testimony as required by Fed. R. Civ. P. 26(a)(2). See Dkt. 111 at 2-3. The Court held that the failure to disclose was prejudicial; reopened expert discovery to give Defendants an opportunity to question Hang on the topics listed under Rule 26(a)(2) ; directed Plaintiffs to produce to Defendants all information and materials relating to Hang required by Rule 26(a)(2) ; struck Defendants' original Daubert motion and Plaintiffs' motion for partial summary judgment from the record; and set a schedule for the parties to brief Defendants' renewed motion to exclude Hang's opinions-the motion now before this Court. Id. at 3-7. Plaintiffs disclosed the materials required by Rule 26(a)(2) in compliance with the Court's order, see Dkt. 122 (Weaver Decl.) ¶ 4, and produced Hang for a second deposition, see Dkt. 118 ex. A (transcript excerpts of Jan. 17, 2019 Hang depo.). In their renewed Daubert motion, Defendants do not raise further objections under Rule 37 regarding Plaintiffs' compliance with Rule 26.
Lay persons can, without expert assistance, determine whether certain features are ADA compliant. If, for example, every entry to a precinct house is accessible only by stairs, and there is no ramp or other means for a person who is wheelchair-bound to enter, a lay person can conclude that the entrance to the precinct is not ADA-compliant. Nevertheless, other features may not be obviously compliant or non-compliant-e.g., the force needed to open a door.
Defendants opposition to Plaintiffs' motion does not comment on, let alone attempt to rationalize, Pinto's reliance on the "eye test."
Because the Court finds Pinto's opinions unreliable for other reasons, it need not address Plaintiffs' contentions that Pinto applied incorrect accessibility standards; that "[m]any of Mr. Pinto's compliance determinations are unsubstantiated" or demonstrably incorrect; and that Pinto's reports feature "many false findings of compliance." See Dkt. 88 (Mem. in Supp. of Pls.' Mot. to Exclude Pinto Test.) at 11-16, 23-25. And because the Court excludes Pinto's testimony on the ground that his opinions are unreliable under Rule 702(b)-(d), the Court need not resolve Plaintiffs' separate contention that Pinto does not qualify as an expert on ADA accessibility standards, see id. at 18-20. The Court does note serious skepticism, however, of Defendants' assertion that Pinto possesses "extensive specialized knowledge of codes and standards on physical accessibility including the 1991 Americans with Disabilities (ADA) Standards for Accessible Design and the 2010 ADA Standards for Accessible Design," see Dkt. 97 (Mem. in Opp. to Pls.' Mot. to Exclude Pinto Test.) at 5, because it is at odds with Pinto's references during his deposition to the "1994 version" of the "ADA code," which does not exist; his statement that he was unaware of "any industry standards for how to measure facilities for compliance with accessibility laws and guidelines"; and his admission that "ha[d] not seen a copy of the 1991 standards" and had "not used them," Dkt. 93 ex. 2 (transcript excerpts of Pinto depo.) at 42, 46, 48-49, 129-30.
Moreover, because the Court's ruling on Plaintiffs' Daubert motion does not rely on the supportive declaration of Plaintiffs' proposed expert Hang, see Dkt. 92, the Court need not resolve Defendants' argument that the declaration must be disregarded because Plaintiffs did not initially disclose it consistent with Fed. R. Civ. P. 37 and 26(a)(2)(D)(ii), see Dkt. 97 (Mem. in Opp. to Pls.' Mot. to Exclude Pinto Test.) at 10-11. Given the Court's December 10, 2018 ruling on the Rule 37 issue and its reopening of expert discovery, see supra n. 1, this argument appears moot anyway.
Because the Court excludes on other grounds any opinion Hang may offer about whether the condition of Defendants' stationhouses causes individuals to be excluded from NYPD services, programs, or activities, the Court need not resolve the parties' dispute over whether any such opinion by Hang improperly fails to account for the feasibility of remediating any architectural barriers at the stationhouses. See Dkt. 119 (Mem. in Supp. of Mot. to Exclude Hang) at 7-9; Dkt. 121 (Mem. in Opp. to Mot. to Exclude Hang) at 6. (With respect to Hang's measurements and compliance opinions-which the Court has ruled admissible-whether a structure's existing architectural features comply with the ADA Standards for Accessible Design is an inquiry separate from and antecedent to the question whether remediating any barriers identified is feasible. So any purported failure by Hang to address the latter question does not render her opinions on the former unreliable or otherwise inadmissible.)
For the same reason, the Court also need not address Plaintiffs' contentions (1) that any opinion by Hang on the accessibility of NYPD's services, programs, and activities would be an irrelevant or otherwise inappropriate legal conclusion, see Dkt. 121 (Mem. in Opp. to Mot. to Exclude Hang) at 5, and (2) that Defendants' questioning at Hang's second deposition regarding remediation was impermissible, see id. at 3 n.3. And finally, the Court need not resolve whether Hang possesses the knowledge, skill, experience, training, and education necessary to opine on the accessibility of NYPD's services, programs, and activities under
Reference
- Full Case Name
- DISABLED IN ACTION, a Nonprofit Organization, Brooklyn Center for Independence of the Disabled, a Nonprofit Organization, Paula Wolff, an Individual, Jean Ryan, an Individual, Edith Prentiss, an Individual, and Dustin Jones, an Individual, on Behalf of Themselves and All Other Similarly Situated v. The CITY OF NEW YORK, New York City Police Department, and James O'Neill, in His Official Capacity as Commissioner of the New York City Police Department
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- 6 cases
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