Neal-Lomax v. LAS VEGAS METROPOLITAN POLICE DEPT.

Citations: 574 F. Supp. 2d 1193; 77 Fed. R. Serv. 466; 2008 U.S. Dist. LEXIS 67830; 2008 WL 4054268Docket: 2:05CV-01464-PMP-RJJ

Court: District Court, D. Nevada; September 2, 2008; Federal District Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The case involves LaKisha Neal-Lomax and others as plaintiffs against the Las Vegas Metropolitan Police Department, Officer Reggie Rader, and Taser International, Inc., following the death of William Lomax after police intervention where a Taser was employed. Taser International filed a Motion for Summary Judgment challenging all claims brought by the plaintiffs, which include strict products liability for design, manufacturing, and warning defects, as well as negligence. Taser contends that Lomax was more at fault for his own death due to drug use and resistance to police, and that no defects were present in the Taser's design or warnings. They also argue that they are protected by the sophisticated purchaser/bulk supplier doctrine and that the plaintiffs have not established causation. 

In response, the plaintiffs abandoned their negligence and manufacturing defect claims but maintained that the Taser's design is defective because it caused or contributed to Lomax's death despite being marketed as non-lethal. They also assert that Taser failed to adequately warn about the risks of death in high-risk individuals. The plaintiffs claim that expert testimony supports their argument on causation and request that the issue of punitive damages be left for trial.

Summary judgment is permitted when the relevant documents and affidavits indicate no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law, as per Federal Rule of Civil Procedure 56(c). Material facts are defined by substantive law, and all reasonable inferences must favor the non-moving party. The moving party must initially demonstrate the absence of a genuine issue, after which the burden shifts to the non-moving party to present specific facts showing such an issue exists. The opposing party must reference the record to support their claims, and courts are not obligated to search for undisclosed genuine issues.

In the case at hand, plaintiffs have abandoned their claims for strict products liability and negligence in counts seven and nine of the Second Amended Complaint, leading to summary judgment in favor of the defendant, TI, on these counts. For a strict products liability claim in Nevada, plaintiffs must prove that a product was defectively dangerous, that the defect was present when the product left the manufacturer, and that it caused the injury. A product is deemed defectively dangerous if it does not perform as expected or is more hazardous than what an ordinary user would anticipate. Evidence of insufficient safety features or the existence of a safer alternative can support such a claim. Manufacturers may also be strictly liable if they fail to provide adequate warnings about the product's safe use, and whether warnings were adequate is typically a question for a jury. Finally, plaintiffs must provide medical expert testimony establishing causation with reasonable certainty.

A mere possibility that a product caused an injury is inadequate to establish liability. In Nevada, expert testimony is necessary for a plaintiff to form a medical judgment that can support a legal conclusion. The defendant, TI, markets the Taser as a less-than-lethal device intended to safely subdue individuals. If a Taser is implicated in a death, it would suggest it did not function as expected. TI contends that the Taser could not have caused the death of Lomax. However, Plaintiffs must provide a genuine issue of material fact regarding the Taser’s role in Lomax's death, which they attempt to establish through the timing of events and expert testimonies from four specialists, including a coroner and a forensic pathologist.

Plaintiffs argue that witness testimonies indicating Lomax became limp immediately after the last Taser discharge and was found not breathing shortly thereafter create a factual dispute on causation. In contrast, TI cites other witnesses who claim Lomax was still struggling and breathing for up to fifteen minutes after the Taser was applied, asserting that timing alone cannot prove causation. While the court will assume the timing supports the Plaintiffs’ narrative, it emphasizes that additional medical expert testimony is required due to the ambiguity surrounding the cause of death. Lomax’s pre-existing health issues, including obesity, drug influence, and heart conditions, complicate the causal link to the Taser. Medical records and expert opinions suggest that Lomax may have died even without the use of the Taser. Therefore, the temporal connection between the Taser application and Lomax's death is insufficient to substantiate causation claims, aligning with precedents that necessitate detailed expert testimony in cases with multiple potential causes.

Mark Rhodes, an electrical engineer with extensive experience, and Dr. Knoblock, who conducted Lomax's autopsy, are referenced by the Plaintiffs for their expert opinions. However, neither expert provides a definitive assertion to a reasonable degree of medical certainty that the Taser directly caused or contributed to Lomax's death.

Rhodes holds a Ph.D. in Engineering and has 20 years of experience as a research engineer. In his initial report, he states that multiple Taser applications, combined with factors such as positional asphyxia and bronchopneumonia, led to Lomax's respiratory arrest. He suggests that the Taser likely affected the phrenic nerve, which is crucial for breathing, but he stops short of asserting with medical certainty that the Taser caused Lomax's death. His opinion indicates only that the Taser was "more likely than not" a substantial factor in his respiratory arrest, but this does not create a genuine issue of material fact regarding causation under Nevada's legal standards, which require expert medical testimony for such claims.

Dr. Knoblock's autopsy report identifies the cause of death as cardiac arrest during restraining procedures, with phencyclidine (PCP) intoxication and bronchopneumonia as significant contributing factors. He testifies that PCP causes physiological stress, which, alongside the struggle and restraint position, hindered Lomax's ability to breathe. Although he acknowledges that the Taser contributed to Lomax's death by affecting muscle contraction, he does not assert that Lomax would have survived without its use. Additionally, Dr. Knoblock admits a lack of medical evidence supporting the claim that a Taser can kill an adult or that it causes muscle contraction in drive stun mode. Overall, the Plaintiffs fail to cite any record where Dr. Knoblock offers a medically certain opinion that the Taser caused Lomax's death.

Plaintiffs acknowledge that Dr. Knoblock, who performed Mr. Lomax's autopsy, did not conclude that the TASER X26 caused Lomax's death. While Dr. Knoblock recognized multiple contributing factors, he refrained from asserting that the TASER was a cause or that Lomax's outcome would have differed without its use. Consequently, his lack of a definitive opinion regarding causation fails to create a genuine issue of material fact.

Additionally, the Plaintiffs' medical experts, Brett H. Woodard and Jared Strote, face a motion from Defendant TI to exclude their testimony as inadmissible under Federal Rule of Evidence 702. This rule allows expert testimony based on specialized knowledge if it is relevant and reliable. The trial court serves as a "gatekeeper" to ensure that such testimony meets these criteria, as established in cases like Kumho Tire Co. Ltd. v. Carmichael and Daubert v. Merrell Dow Pharmaceuticals Inc. 

Relevant testimony must assist in understanding evidence or determining facts in the case, and be tied to the specific facts at hand. Reliability hinges on sufficient facts, reliable principles, and proper application of those principles to the case's facts. The Daubert criteria for assessing reliability include the ability to test a theory, peer review status, error rates, and general acceptance in the field, although these factors may not be strictly applicable to expert testimony based on personal knowledge or experience.

In medical contexts, the trial court should assess reliability based on what a competent physician would consider valid knowledge, not merely on the correctness of conclusions. The expert's methodology should reflect the intellectual rigor expected in their field, and important factors include whether opinions were developed for litigation purposes. An expert's failure to peer-review their methods or develop opinions outside of court does not automatically render their testimony inadmissible.

Expert testimony must be relevant and reliable to be admissible, with the offering party responsible for proving its admissibility. If guarantees of reliability are lacking, the expert must clearly explain their methodology and reference objective sources. The trial court has discretion over the admission of such testimony. Dr. Woodard, a board-certified pathologist with a forensic pathology sub-specialty, has significant experience with violent deaths and has performed autopsies involving electrical factors. He expressed the opinion that multiple factors contributed to a decedent's death, including restraint position, body weight, physical resistance, obesity, bronchopneumonia, substance abuse, and Taser use. Woodard posits that repeated Taser application likely exacerbated the decedent's metabolic issues, contributing to death.

Defendant TI seeks to strike Woodard's opinions, arguing that he lacks expertise in Taser physiology and did not adequately educate himself on its effects. TI claims Woodard's opinion is unsupported by sufficient facts, as he did not review the decedent's medical history or histological slides, and that his methodology lacks reliability due to his limited review of evidence. TI also challenges the credibility of Woodard's conclusions, noting the absence of peer-reviewed studies supporting his claims and his failure to address conflicting research. In response, plaintiffs argue Woodard's extensive experience as a forensic pathologist qualifies him, and they assert that the studies not considered by Woodard lack independent credibility due to their ties to TI consultants.

Plaintiffs argue that Woodard's conclusions regarding the cause and manner of death were based on standard practices of forensic pathology, asserting that his experience negates the need for scientific experiments. However, the Court finds Plaintiffs have failed to demonstrate the admissibility of Woodard's opinions, ruling to exclude them. While Woodard is generally qualified as a forensic pathologist, he lacks specific knowledge and expertise related to Tasers, admitting he does not consider himself an expert on the device or its effects. He demonstrated unfamiliarity with relevant studies on Tasers and did not consult reference materials to educate himself. Woodard acknowledged having no scientific basis for his conclusion that the Taser in drive stun mode causes forced muscular contractions, relying instead on lay witness accounts without linking them to any objective medical or scientific evidence. He could not identify any peer-reviewed studies or authoritative texts supporting his claims about the Taser's effects, including its relation to metabolic derangement or acidosis. The Court notes that while Woodard’s experience is acknowledged, it must be grounded in some objective basis to support his opinions, which he failed to provide. Ultimately, Woodard's reliance on uncorroborated eyewitness testimony without scientific backing undermines the reliability of his conclusions.

Woodard's opinions regarding the Taser’s effects lack a reliable medical or scientific foundation, as he fails to provide a mechanism for how the Taser could cause muscular contractions or worsen metabolic derangement. Consequently, the court excludes his testimony. In contrast, Strote, a board certified emergency room physician and assistant professor, has substantial experience in determining causes of death and has published research on Taser-related fatalities. His study of thirty-seven cases indicated a high prevalence of preexisting cardiac conditions among individuals who died after Taser use, suggesting that these conditions, combined with factors such as stimulant use and physical restraint, create a high-risk scenario for fatalities.

Strote asserts that Lomax's death was influenced by multiple factors, including obesity, PCP usage, and the stress of restraint, which led to cardiac arrest. He identifies acidosis and a hypersympathetic state as critical contributors to Lomax's death. Strote explains that Lomax's ability to ventilate was compromised due to his obesity, bronchopneumonia, and positioning during restraint, which exacerbated his risk of cardiac arrest. He concludes that Lomax likely had minimal capacity to withstand further physiological stress prior to his death. Strote also posits that Taser discharges likely exacerbated Lomax's metabolic derangement and sympathetic nervous system response, referencing a pig study that demonstrated significant acidosis following repeated Taser applications. Additionally, he suggests that Taser usage may have increased catecholamines in Lomax as a pain response.

Strote posits that the use of a Taser may have impaired Lomax's respiratory function due to local muscle contraction, which could hinder his ability to ventilate properly in response to metabolic distress. He references a recent study indicating Tasers do not affect ventilation but critiques its methodology for failing to replicate real-life scenarios, particularly the application of Taser discharges to the neck, which Lomax experienced. Strote theorizes that the drive stun mode on Lomax's neck might have contributed to muscle contraction, diminishing his ventilatory drive. He further suggests that Lomax may have become exhausted, compromising his mental and physical capacity to cope with ongoing health issues.

Strote concludes that prior to Lomax's death, he likely faced critical health challenges, including elevated catecholamine levels and metabolic acidosis, which reduced his ability to withstand additional stressors. He opines, based on the timing of the Taser applications and subsequent cardiac and respiratory arrest, that the Taser usage deteriorated Lomax's condition and was a significant factor in his death.

Defendant TI seeks to exclude Strote's opinions, claiming he lacks the requisite expertise regarding the Taser's physiological effects, selectively interprets witness statements, and fails to employ reliable methodology, lacking direct experiments or peer-reviewed support. In response, Plaintiffs assert Strote's qualifications stem from his emergency medicine experience and previous Taser research, arguing that if Strote is deemed unqualified, so too are some of TI's experts. They maintain that Strote's opinions are grounded in factual witness accounts and that his methodology, which includes a comprehensive review of relevant reports and literature, is reliable. Ultimately, the Court finds that Plaintiffs have not demonstrated the admissibility of Strote's opinions, leading to their exclusion due to a lack of reliability in principles and methods.

Strote's opinions regarding the effects of Taser applications lack a reliable scientific basis, as they are primarily derived from his personal experience rather than empirical evidence or controlled studies. During his deposition, Strote could not cite any studies on the Taser's effects in drive stun mode, nor any objective sources linking Taser use to fatal injuries. He acknowledged that no medical literature supports a connection between Taser applications and increased acidosis or hypersympathetic states. Additionally, Strote was unable to quantify the physiological changes he attributed to the Taser, did not possess data on catecholamine increases due to Taser use, and could not assert with medical certainty that Lomax would have survived without Taser discharges. Consequently, the court found that Strote's opinions did not meet the standards of reliable methodology required for admissibility. As a result, the court granted Taser International, Inc.'s motion for summary judgment, ruling in favor of the defendant and against the plaintiffs, while also denying the plaintiffs' motion to exclude the testimony of the defendants' expert witnesses as moot. The court further denied the motion to exclude the testimony of the plaintiffs' purported expert, Mark Rhodes, as moot.

Defendant Taser International, Inc.'s motions regarding expert testimonies have been ruled upon as follows: the motion to exclude Plaintiffs' expert Brett H. Woodard, M.D. is granted; the motion to limit the testimony of Dr. Knoblock is denied as moot; the motion to limit the testimony of Dr. Strote is granted; the motion to exclude Jerry Bush's testimony is denied as moot; the joinder in the Las Vegas Metropolitan Police Department's motion to exclude David M. Ingebretsen's testimony is denied as moot; the motion to exclude Ron Martinelli's testimony is denied as moot; and the motion to exclude Terence M. Clauretie, Ph.D.'s testimony is denied as moot. The court clarifies that the plaintiffs must demonstrate their expert's qualifications independently of the qualifications of the defendants' experts.