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
No. 10-4833-cv

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 e-mail:


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 impairment.

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 neuropsychiatric impairments.

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 data.