Court: District Court, E.D. New York; March 4, 2013; Federal District Court
Renewed motions for summary judgment have been filed by all defendants except the Suffolk County defendants, alongside a motion from TASER International to strike certain plaintiffs' exhibits. The plaintiffs oppose all motions, and the parties have consented to the magistrate judge's jurisdiction. The court's rulings are as follows: TASER's motion to strike exhibits is granted in part and denied in part; TASER's motion for summary judgment on all claims is granted; the Village defendants' motion for partial summary judgment is granted; and Brian Platt's motion for summary judgment is granted.
TASER's motion to strike includes requests to exclude a range of plaintiffs' submissions, citing their inadmissibility as hearsay or lacking proper foundation. The contested exhibits include unsworn expert reports, scientific articles, hearsay case reports, and media reports. The court emphasizes that only admissible evidence can be considered in summary judgment motions, referencing existing legal standards and previous rulings that established the inadmissibility of unsworn expert reports. The court specifically notes that similar documents submitted in past motions were not considered due to non-compliance with admissibility requirements.
Plaintiffs have submitted expert declarations from Morse, Leiken, and Mamet to address an earlier procedural error identified by TASER but offer no justification for their prior noncompliance with court rulings. They reference case law allowing unsworn expert reports to be validated by subsequent affidavits or declarations. Despite acknowledging the plaintiffs' oversight, the court will accept the declarations and consider them for relevant issues in renewed summary judgment motions.
The expert report of David S. Rosenbaum is signed but unsworn, with no curative affidavit submitted due to his death. Although TASER has not relied on this report in their arguments, the court will not exclude it despite acknowledging the plaintiffs' legal arguments about its admissibility lack supporting case law.
Regarding Sergeant Christopher Broich's affidavit and memo, TASER contends they are unsworn and irrelevant to the current litigation, while plaintiffs assert Broich is a fact witness. The court agrees with TASER that Broich was not properly disclosed as a fact witness under Rule 26(a)(1)(A), as his mention in prior exhibits does not meet the requirement for explicit disclosure. Consequently, Broich's affidavit and memo, which contain opinions rather than mere factual recitations, will be excluded from evidence.
The plaintiffs submitted various unsworn and unsigned reports from experts Lone Thanning, Mark R. Myers, and Charles V. Wetli, which are excluded from consideration. Thanning, previously a plaintiff's witness, withdrew without explanation, and Wetli's report, originally from another case, is not admissible despite his role as an expert for a co-defendant in the current litigation. The plaintiffs argued for admissibility under Fed. R. Evid. 804(b)(1), claiming the experts were unavailable and TASER had opportunities to depose them; however, they failed to demonstrate the experts' unavailability or the qualifications of the prior testimony. Consequently, the reports are excluded due to these deficiencies.
Additionally, Dr. Menashe Waxman's affidavit from a separate case is also excluded, as he was not disclosed as an expert in the current case, and his unavailability was not established to invoke Rule 804. The affidavit lacks relevance and fails to meet the disclosure requirements of Rule 26.
TASER also contested the admissibility of certain medical and scientific articles on grounds of relevance and hearsay, arguing they were not relied upon by any expert, did not pertain to ECD drive-stuns, or were published after a relevant date. The parties acknowledged that Rule 803(18) is the applicable hearsay exception for published articles, but the exclusion remains due to the failure to meet the foundational requirements.
Rule 803(18) allows for the admission of statements from learned treatises, periodicals, or pamphlets as evidence if two criteria are met: (A) the statement is referenced by an expert during cross-examination or relied upon during direct examination, and (B) the publication is deemed a reliable authority through expert testimony, another expert's testimony, or judicial notice. The plaintiffs failed to satisfy criterion (B) as they did not provide a foundational basis for recognizing the periodicals cited, which include Forensic Science International and others, beyond unsupported claims from their counsel. The court emphasized that the reputation of a periodical alone does not warrant the automatic admission of its contents under Rule 803(18).
Additionally, the plaintiffs' claim that the articles could be admitted under the residual hearsay exception (Rule 807) was rejected since the articles are covered by Rule 803(18). The argument for the admissibility of the Zipes article as a business record under Rule 803(6) was dismissed, as it was deemed an opinion rather than a business record. Consequently, several exhibits, including specific articles and book excerpts, were excluded.
Exhibit K, consisting of excerpts from Howard E. Miller's book on TASER-related deaths, was presented not under Rule 803(18) but as evidence of TASER's prior knowledge regarding the risks associated with its products. The plaintiffs characterized the book as a neutral compilation of cases involving fatalities near TASER use, asserting that it indicates TASER's awareness of potential dangers before a specific incident in 2004.
Hearsay is defined under Rule 801 as a statement made by a declarant not testifying at trial, offered to prove the truth of the matter asserted. The plaintiffs aim to use excerpts to demonstrate that there were sudden-death cases linked to TASER in stun-drive mode before Mr. Glowczenski's death, which they argue implies notice to TASER. Rule 807 permits hearsay statements if they meet several criteria, including trustworthiness, relevance to a material fact, and more probative value than other obtainable evidence, while also requiring reasonable notice to the opposing party.
TASER contends that the case reports cited by the plaintiffs lack the necessary guarantees of trustworthiness and are inherently unreliable, referencing multiple court decisions that dismiss case reports as scientifically insufficient. The plaintiffs assert that their use of the excerpts is not to establish scientific fact but to show occurrences of sudden death following TASER use prior to 2004. However, it is noted that Glowczenski only received drive-stun applications, and significant discussion about the differing effects of drive-stun versus probe applications exists in the case.
The plaintiffs provided a chart listing four pre-2004 case reports, but three of these involve probe applications, with only one addressing drive stun. Thus, the excerpts fail to provide evidence specific to drive-stun applications, leading to the conclusion that they must be excluded from consideration.
J. Lozoya's case involves a single drive-stun application resulting in his sudden death in July 2002, which is admissible as evidence for the fact of his death. However, the relevance of this case does not guarantee the admissibility of the entire excerpt. Exhibit CCCC is excluded due to its irrelevance. TASER seeks to exclude Exhibit I, a PowerPoint presentation by Mark Johnson related to metabolic acidosis, due to the plaintiffs' failure to disclose Johnson as a potential witness or the presentation as an exhibit before the close of discovery, invoking Rules 26(a) and 37. The automatic sanction for such non-disclosure is preclusion, especially when raised in opposition to a summary judgment motion. The plaintiffs did not counter TASER's argument, leading to the agreement that Exhibit I and related Exhibit BBBB (Johnson’s resume) should be excluded.
TASER also argues for the exclusion of all post-Glowezenski death news and public interest reports as hearsay and irrelevant. These include various reports and articles concerning the safety and use of TASERs, including the Braidwood Commission report and several Amnesty International reports, along with articles from the Arizona Republic and the New York Times discussing TASER-related fatalities and safety concerns. The Braidwood report is addressed separately.
TASER contends that newspaper and magazine articles presented by the plaintiffs are hearsay and inadmissible for proving the truth of their content. The plaintiffs argue that Exhibits T, U, V, and AAAA, which are formal reports from Amnesty International and the American Civil Liberties Union concerning safety issues related to TASER weapons, are admissible as learned treatises under Rule 803(18). However, the court finds these articles do not qualify as learned treatises, periodicals, or pamphlets, and the plaintiffs have not met their burden of establishing their admissibility under Rule 803(18). Additionally, the plaintiffs claim the reports are admissible under Rule 703 for expert testimony; however, they fail to demonstrate how Dr. Morse, their expert, could introduce these reports since Rule 703 prohibits disclosing inadmissible evidence. The plaintiffs have not provided any expert report or testimony indicating Dr. Morse's reliance on these reports, which means he could not present them to the jury, nor can the plaintiffs rely on this hearsay for their claims. The plaintiffs also assert that the articles are not submitted for the truth of their content but to show that TASER was aware of increasing public concerns and deaths related to its products. However, all cited reports and articles were published after Mr. Glowezenski's death, raising uncertainty about TASER's prior knowledge of such information.
Notice of pre-2004 deaths cannot be attributed to TASER based on articles published after that date, as plaintiffs failed to demonstrate how TASER could have been on notice or why such notice should be imputed to them. Consequently, these articles are excluded from evidence due to their failure to meet the criteria for admission under Rules 703 and 803, as well as their lack of relevance.
TASER critiques the Braidwood Commission Report, a 550-page unpublished document prepared by jurist Thomas Braidwood, arguing it is inadmissible due to multiple layers of hearsay and its focus solely on acidosis risks related to probe deployments, not drive-stun applications. The report, issued more than five years after the death of Robert Glowezenski, is deemed irrelevant by TASER.
Conversely, plaintiffs assert the Braidwood Report is admissible under Federal Rule 803(8) as a public record, citing its origin from the provincial government of British Columbia and its documentation of factual findings from a legally authorized investigation. The report includes a cover letter from Braidwood to the Attorney General, confirming its submission under the Public Inquiry Act.
Rule 803(8) allows for the admission of public office records unless trustworthiness is questioned, placing the burden on TASER to prove otherwise. The Braidwood Report meets the criteria for this rule, and TASER has not successfully challenged its overall trustworthiness, although other admissibility issues may arise.
A report falling under the public records exception to Rule 803(8) does not automatically make all its contents admissible. While an official's conclusions based on their observations may be admissible, hearsay statements from third parties without a business duty to report are not. Double hearsay is admissible only if each level qualifies for a hearsay exception. TASER contends that the plaintiffs rely solely on hearsay from the Braidwood Report, which is primarily based on third-party statements and contains hearsay within hearsay, making it inadmissible. Additionally, the report’s relevance is questioned since it focuses on probe applications, which may not pertain to Mr. Glowczenski’s death. The plaintiffs argue for its use to demonstrate that TASERs can cause death and for cross-examination of TASER’s experts but fail to clarify the specific parts they wish to use or their purpose. While the report meets the criteria of Rule 803(8), it contains potential hearsay and relevance issues. Relevant, non-hearsay portions of the report may be admitted as determined during future references by the plaintiffs. Exhibits excluded include the Braidwood Report to the extent it contains third-party hearsay and irrelevancies, along with various other documents and articles.
Exhibits not excluded include the Morse Report, the excerpt regarding J. Lozoya's sudden death after a drive-stun application, the Braidwood Report (to the extent discussed), the Rosenbaum Report, the Morse Declaration, the Mamet Report, and the Leiken Report. These rulings apply to motions from other defendants as well as TASER.
Regarding motions for summary judgment, Federal Rule of Civil Procedure 56(c) states that summary judgment is granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to demonstrate the absence of such issues, and genuine issues exist if a reasonable jury could rule for the nonmoving party. The court must evaluate evidence favorably for the nonmovant and resolve ambiguities in their favor. If the moving party meets its burden, the nonmoving party must present specific facts showing a genuine issue for trial, rather than relying on mere allegations or speculation. If any evidence suggests a material fact that supports the nonmovant, summary judgment is not appropriate.
The operative pleadings involve an Amended Complaint against all defendants except TASER and a separate Complaint against TASER. Claims against TASER include negligence in design and failure to warn, breach of implied warranty, breach of express warranty, strict product liability, and wrongful death. The plaintiff seeks $10 million in damages, punitive damages, attorneys' fees, and costs. TASER contends that all claims should be dismissed due to lack of proof linking it or its device to Glowczenski's death, a position that is agreed upon.
The withdrawal of Dr. Thanning and the exclusion of Dr. Manion’s expert testimony, combined with the plaintiffs’ experts Drs. Rosenbaum and Morse failing to establish a causal link between the use of a TASER ECD and Glowczenski’s death, lead to the conclusion that no such link exists. The medical examiner’s report corroborated this lack of connection. Dr. Rosenbaum, a cardiologist, testified that it is not widely accepted that TASER discharges can cause death and specifically stated that the ECD did not stimulate Glowczenski’s heart. Dr. Morse similarly did not assert that the TASER caused or contributed to the death, citing only a potential stress factor, which he admitted was outside his expertise to analyze. While plaintiffs argue for disputed material facts, the court emphasizes that without expert testimony on causation, the case cannot proceed to jury deliberation. In complex medical cases, expert testimony is essential, as jurors lack the expertise to assess such issues. Plaintiffs must demonstrate both general and specific causation, but they failed to provide evidence that the TASER could cause Glowczenski’s death, rendering any claims insufficient. A mere temporal association between the use of the product and the injury does not establish causation. The comparison to another case involving a drive-stun application is deemed irrelevant.
The motion addresses the application of a TASER device, specifically its drive-stun feature, which is acknowledged to cause pain, aligning with its intended function. The plaintiffs lack sufficient evidence to support their claims that the TASER caused Mr. Glowczenski's death, warranting summary judgment on wrongful death and product liability claims linked to that death. The plaintiffs also claim that burns on Mr. Glowczenski were an independent injury caused solely by the TASER, asserting a material issue regarding the burns' severity. However, they must provide evidence of general causation, indicating that the TASER can cause third-degree burns, which they fail to do. The autopsy photographs presented do not establish general or specific causation sufficiently. The plaintiffs' argument about TASER's failure to provide evidence regarding burn severity is deemed ineffective, as the burden of proof lies with the plaintiffs to substantiate their claims. Consequently, TASER is entitled to summary judgment concerning the harm from both burns and death.
Regarding product liability claims, the plaintiffs assert theories of strict liability, breach of warranty, and negligence, all of which require demonstrating that a product defect significantly contributed to the injury. The plaintiffs have not met this burden. The plaintiffs also raise a failure to warn claim, which requires showing that the manufacturer breached its duty to warn about latent dangers and that this failure caused the injuries. Under New York law, the failure to warn is treated similarly under strict liability and negligence. The plaintiffs have not established the necessary elements for this claim either.
To establish a prima facie case in negligence or strict liability, the plaintiff must demonstrate three elements: (1) the manufacturer owed a duty of reasonable care, knowing or having reason to know of latent dangers from intended or reasonably foreseeable unintended uses of the product; (2) the product was used in a reasonably foreseeable manner; and (3) the manufacturer's failure to warn was the proximate cause of the plaintiff's injury. In the case of Arneauld v. Pentair, Inc., the plaintiffs assert that TASER was aware or should have been aware of defects or latent dangers associated with its product prior to the death of Glowczenski, specifically regarding the potential for TASER applications to cause metabolic acidosis. However, key exhibits supporting this claim have been excluded, and the remaining evidence does not establish a genuine issue of material fact that would preclude summary judgment. The court finds no admissible evidence linking TASER drive-stun applications to Glowczenski's death or any harm, thus ruling in favor of TASER on all claims against it.
The plaintiffs also assert various claims against other defendants, including: (1) a Section 1983 excessive force claim against specific police officers for alleged brutality; (2) a Monell claim against the Village and/or County regarding a pattern of excessive force and inadequate investigation of such claims, as well as deficiencies in training and supervision related to handling mentally ill individuals; (3) a Section 1983 claim for violations of the Fourteenth Amendment, including allegations of a cover-up by Lt. Lewis; (4) a negligence claim centered on wrongful death, alongside other negligent acts; (5) a repeated negligence claim against all defendants; (6) a wrongful death claim; and (7) a battery claim against the Village defendants. The plaintiffs seek $10,000,000 for each count, punitive damages totaling $500,000,000, as well as attorneys' fees and costs.
The Village defendants assert that the wrongful death claims should be dismissed due to the plaintiffs' failure to provide expert testimony establishing a causal link between the defendants’ actions and Glowczenski’s death. Legal precedent requires that wrongful death claimants demonstrate that the defendant’s conduct caused the decedent's death, particularly when the connection is not apparent to lay jurors, necessitating expert evidence. The defendants highlight conflicting expert opinions regarding the causes of death, with the Medical Examiner attributing it to acute exhaustive mania due to schizophrenia, indicating the lack of clarity surrounding the cause. They contend that the plaintiffs have not met their burden of proof and are thus entitled to summary judgment.
In contrast, the plaintiffs argue there are material factual disputes regarding the cause of death, criticizing the reliability of Dr. Wilson's findings and referencing Dr. David Rosenbaum's opinion that asphyxia from restraint and other injuries could be plausible causes. They assert that Dr. Wilson's report lacks sufficient documentation to rule out other potential causes of death. However, even if a jury could disregard Dr. Wilson's conclusion, the plaintiffs must still provide expert evidence to support an alternative cause of death, as jurors cannot reasonably determine the cause from the presented options alone. The court finds that the complexity of the case necessitates expert testimony, which the plaintiffs have not supplied. Consequently, the Village defendants are granted summary judgment on the wrongful death claim, leading to the dismissal of the associated lost earnings claim.
Plaintiffs were unable to provide evidence for their claimed injuries, which precludes their pursuit of lost earnings. The Village defendants successfully moved for summary judgment on the wrongful death and economic damages claims, which included injuries from TASER use. The wrongful death claims against Brian Platt were dismissed due to lack of expert evidence linking his actions to the decedent's death. Plaintiffs had previously withdrawn their Fourteenth Amendment claims. The excessive force claim under the Fourth Amendment remains, as it alleges that Officer Platt used excessive force by TASERing the decedent, Glowczenski, multiple times upon instruction from another defendant. The court will evaluate whether Platt's actions were objectively reasonable based on the totality of circumstances, considering factors such as the severity of the alleged crime, whether the decedent posed a threat, and if he was resisting arrest. Notably, the court indicated that there was no established crime in this context and that significant factual disagreements exist regarding the other factors. For the excessive force claim to succeed, plaintiffs must demonstrate that the force used was sufficiently serious or harmful to warrant action.
Courts vary in their treatment of "de minimis" injuries in excessive force claims, with some dismissing claims where the alleged injuries are minor, such as short-term pain, swelling, or superficial scratches. In contrast, other courts have permitted claims to proceed for less serious injuries if the force applied was deemed excessive or gratuitous. For instance, in Lemmo v. McKoy, injuries from excessive force were deemed de minimis, while in Davenport v. County of Suffolk, a claim was allowed to proceed where a plaintiff's head was intentionally struck against a vehicle. Some courts, like in Gilliard v. City of New York, reject the de minimis standard, stating it applies only to Eighth Amendment claims.
In the case at hand, the use of a TASER by Officer Platt was determined not to be gratuitous or excessive, as it was executed under orders and resulted in injuries considered de minimis—pain and marks deemed similar to bruises, insufficient for an excessive force claim. The court emphasized that the TASER is a pain compliance device and that pain alone does not constitute a serious injury. Furthermore, the objective reasonableness of the multiple TASER applications was upheld, and even if deemed excessive, Platt would still qualify for qualified immunity. The standard for qualified immunity requires that a constitutional violation be clearly established at the time of the act, and it was concluded that a reasonable officer would not have recognized the use of a TASER in this context as unlawful given the circumstances.
A reasonable officer would not have believed that multiple uses of a TASER were unlawful, as the Second Circuit has indicated that drive stun mode generally inflicts only temporary pain without permanent injury. Plaintiffs failed to present admissible evidence demonstrating that the police had knowledge in 2004, or currently, that multiple TASER applications could constitute excessive force. Consequently, Officer Platt's use of the TASER was deemed objectively reasonable, granting him qualified immunity. State law claims of assault and battery align with Fourth Amendment excessive force claims, thus if an officer’s actions are reasonable, such claims cannot succeed. Platt’s use of the TASER was found to be objectively reasonable, leading to the dismissal of assault and battery claims against him.
Summary judgment is granted in full to TASER and Platt and partially to the Village defendants, with a directive to terminate TASER and Platt as defendants. A conference will be scheduled for trial on remaining claims. The Suffolk County defendants, including the County of Suffolk and various officials, have not previously moved for summary judgment. The plaintiffs submitted an unsworn report from Dr. Rosenbaum, which was allowed in prior motions, but discrepancies regarding the evidence presented by TASER were noted. The ruling emphasized issues of disclosure and cross-examination relevant to the case. Additionally, a report related to the cause of death was found inconclusive regarding the TASER’s role, as it did not specify relevant studies or reports.
Dr. Morse’s Declaration and the transcript of his deposition do not reference the report in question. In a prior order regarding summary judgment motions from the Village and Platt, the First Count (false arrest) was dismissed, and negligence claims linked to intentional conduct or false arrest were also ruled out. Other claims against the EMT defendants had been previously dismissed or withdrawn. In the Fourth Count of the Amended Complaint, the plaintiffs allege that the County defendants engaged in a cover-up surrounding Glowczenski’s death, violating the Fourteenth Amendment, but no specific rulings on these claims have been made. The Amended Complaint includes two counts labeled as the "Fourth Count." The defendants referenced various articles on excited delirium, positional asphyxia, and prone positioning to illustrate the existence of differing opinions on these issues, but these citations are not considered for their truth and do not require hearsay analysis. The plaintiffs assert that Officer Platt and his colleagues surrounded Glowczenski and witnessed the relevant incidents but fail to provide a legal basis for Platt’s liability for excessive force. It is unclear if the defendants will present evidence of Glowczenski allegedly resisting arrest, which would be resolved at trial. For the claim of excessive force against Platt, it is assumed, for now, that no crime occurred. No conclusions regarding the actions of other police defendants will be drawn, as this will be determined by a jury at trial, subject to applicable legal findings.
