Carvajal v. Mihalek, et al.
U.S. District Court, Southern District of New York
07 Civ. 0170 (PAC)
U. S. Court of Appeals for the Second Circuit
Attorneys for defense: Ross E. Morrison, Esq. Tara M.
La Morte, Esq. U.S. Attorney’s Office Southern District of New York 86
Chambers Street New York, NY 10007
Expert retained by defense: Harold J. Bursztajn, M.D.
Associate Clinical Professor Co-founder, Program in Psychiatry and the
Law Department of Psychiatry Beth Israel Deaconess Medical Center Harvard
Medical School 96 Larchwood Drive Cambridge, MA 02138 ph. 617-492-8366
In affirming a trial court’s judgment in favor of defendants in a civil
action brought against U.S. Secret Service agents for injuries suffered
in a raid on a suspected counterfeiting operation, a federal appeals
court in New York ruled that the trial court had properly admitted evidence
about a motor-vehicle accident claim the plaintiff had previously settled.
In so doing, the appeals court in effect affirmed the relevance of historical
data obtained in forensic neuropsychiatric examination and evaluation.
Robert Carvajal brought a civil action against agents of the U.S. Secret
Service who shot him while investigating a reported counterfeiting operation
in his apartment on February 9, 2004. The investigation resulted in Carvajal’s
brother’s conviction and incarceration for counterfeiting and narcotics
offenses, while Robert Carvajal pled guilty to the lesser offense of
passing counterfeit currency and avoided a sentence of imprisonment.
Carvajal claimed that he suffered persistent cognitive impairment, chronic
pain, and Post-traumatic Stress Disorder (PTSD) as a consequence of the
shooting, in which he was injured in the head, hand, and torso.
The expert retained by the U.S. Attorney’s Office of the Southern District
of New York, forensic neuropsychiatrist Harold J. Bursztajn, M.D., of
Harvard Medical School, found Carvajal’s claimed symptoms of chronic
pain, PTSD, and cognitive impairments to be largely malingered. Moreover,
to the extent that Carvajal did suffer from any residual consequences
of head trauma, those were more likely attributable to a motor-vehicle
accident (MVA) on November 9, 2004, for which he had previously received
a substantial financial settlement from a waste-disposal company. Reviewing
Carvajal’s legal filings and deposition testimony in the two cases, Dr.
Bursztajn found that the plaintiff had attributed his alleged impairments
mainly to whichever incident was the immediate object of litigation.
Moreover, employment records showed that Carvajal had worked a great
deal more than he claimed during the nine months between the two incidents,
a time period in which there was no record of significant mental or emotional
Prior to trial, the defense, in consultation with Dr. Bursztajn, filed
a successful motion to limit the admissibility of medical testimony offered
by the plaintiff as to his alleged brain damage because the plaintiff-retained
experts failed to consider the MVA as an alternative cause of his head
trauma. At trial on November 18, 2010, in direct examination by Assistant
U.S. Attorney Tara M. La Morte, Dr. Bursztajn testified that in examination
Carvajal did not manifest the cognitive impairments and symptoms of PTSD
from which he claimed to suffer. On the contrary, he displayed considerable
self-command, along with an adversarial attitude and manipulative behavior.
Carvajal’s lack of cooperation with the examination, history of minor
criminal involvements, and other indications of antisocial personality
traits, together with his disinclination to avail himself of medical
or mental-health treatment, contributed to a picture of a person who,
having dealt in counterfeit currency, was counterfeiting symptoms of
After the jury returned a verdict in favor of the defendants, Carvajal
appealed to the U.S. Court of Appeals for the Second Circuit. (One of
the circuit judges was Guido Calabresi, co-author of Tragic Choices,
a widely cited 1978 book about how societies make decisions that may
result in tragic outcomes for some individuals.) Carvajal argued, inter
alia, that the trial court should have ruled as a matter of law that
the defendants had used excessive force and should have set aside the
jury verdict to the contrary. Reviewing the evidence (as it must) in
the light most favorable to the defendants, the appeals court held on
December 21, 2011 that the record permitted a reasonable jury to find
the requisite probable cause to support defendants’ use of deadly force.
Carvajal also argued on appeal that evidence pertaining to the settlement
of Carvajal’s MVA-related claim should have been excluded as more prejudicial
than probative. Because the jury decided the case against Carvajal on
liability grounds by finding that the defendants had not used excessive
force, the appeals court ruled that even the erroneous admission of evidence
with respect to damages would have been harmless. Nonetheless, the court
found the evidence in question to be probative as to the cause of Carvajal’s
head injuries. Defendants did not seek to disprove the validity of the
claims Carvajal had settled in the prior case (which would have been
impermissible under Fed. R. Evid. 408), but rather to contest the validity
of damages claimed in his suit against the federal agents. The district
court did not abuse its broad discretion to admit, for this permissible
purpose, evidence obtained by Dr. Bursztajn in his examination of Carvajal
as well as in his review of documentary evidence. Thus, the federal appeals
court’s ruling supported the practice of forensic mental-health experts
who base their opinions on a wide-ranging analysis of corroborative historical