The Estate of: Euguene Donjuall Gilliam v. City of Prattville et al

Filing 88

MEMORANDUM OPINION AND ORDER: 1) The dfts' 42 Motion to Exclude the Causation Testimony and Reports of Scott Bell, M.D. and James Lauridson, M.D. is GRANTED; 2) The dfts' 44 Motion for Summary Judgment as to the claims under 42 USC 1983 against Emmanuel and Gentry for excessive force in violation of the Fourth Amendment is DENIED; 3) The dfts' 44 Motion for Summary Judgment as to all other claims is GRANTED and those claims are to be DISMISSED. The Clerk of the Court is DIRECTED to terminate the City of Prattville as a party. Signed by Hon. Chief Judge Mark E. Fuller on 10/26/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION T H E ESTATE OF EUGENE DONJUALL G IL L IA M , by and through his personal re p re se n ta tiv e , Cynthia Harmon Waldroup, A d m in is tra trix , P la in tif f , v. C IT Y OF PRATTVILLE, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-cv-278-MEF (W O ¯ P u b lis h )

MEMORANDUM OPINION AND ORDER
I . INTRODUCTION D e f e n d a n ts Camille Emmanuel ("Emmanuel") and Brian Gentry ("Gentry") (c o lle c tiv e ly "the officers"), both police officers with the Prattville Police Department, u s e d their tasers during a routine traffic stop to stun and immobilize Eugene Gilliam (" G illia m " ), who later died from heart failure. Plaintiff Cynthia Harmon Waldroup (" W a ld ro u p " ), Gilliam's mother and the administrator of his estate, filed this lawsuit a g a in s t the officers and their employer, the City of Prattville ("the City"). Waldroup s e e k s compensatory and punitive damages under 42 U.S.C. § 1983 and Alabama's w ro n g f u l death statute. T h is cause is before the Court on the defendants' Motion for Summary Judgment (D o c . #44), filed on July 9, 2009. For the reasons set out below, the Court concludes that th e motion must be GRANTED in part and DENIED in part. This cause is also before the

Court on the defendants' Motion to Exclude the Causation Testimony and Reports of S c o tt Bell, M.D. and James Lauridson, M.D. (Doc. #42), filed on July 9, 2009. Because th e Court's decision to grant this motion would exclude relevant evidence from the s u m m a ry-ju d g m e n t inquiry, the Court will take up the motion now. For the reasons set o u t below, the Court concludes that the motion must be GRANTED in full. I I. JURISDICTION AND VENUE T h is Court has subject-matter jurisdiction over this case under 28 U.S.C. §§ 1331 (f e d e ra l question), 1343 (civil rights), and 1367 (supplemental). The parties do not c o n te s t personal jurisdiction or venue, and the Court finds a sufficient basis for each. III. LEGAL STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on f ile , together with the affidavits, if any, show that there is no genuine issue as to any m a te ria l fact and that the moving part is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the b a s is for its motion, and identifying those portions of [the record] which it believes d e m o n s tra te the absence of a genuine issue of material fact." Id. at 323. The moving p a rty can meet this burden by presenting evidence showing there is no dispute of material f a c t, or by showing that the nonmoving party has failed to present any evidence in support

2

of an element of its case on which it bears the ultimate burden of proof. Id. at 322S23. O n c e the moving party has met its initial burden, Rule 56(e) "requires the n o n m o v in g party to go beyond its pleadings and by its own affidavits, or by the `d e p o s itio n s , answers to interrogatories, and admissions on file,' designate `specific facts s h o w in g that there is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, th e nonmoving party "must do more than simply show that there is some metaphysical d o u b t as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U .S . 574, 587 (1986). On the other hand, the court ruling on a motion for summary ju d g m e n t must believe the evidence of the nonmoving party and must draw all justifiable in f e re n c e s from the evidence in the nonmoving party's favor. Anderson v. Liberty Lobby, In c ., 477 U.S. 242, 255 (1986). A f te r the nonmoving party has responded to the motion for summary judgment, the c o u rt must grant summary judgment if there is no genuine issue of material fact and the m o v in g party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). I I I. RELEVANT FACTS T h e Court has carefully considered all deposition excerpts and documents s u b m itte d in support of and opposition to the motion. Under the summary-judgment s ta n d a rd , the Court must view these submissions in the light most favorable to Waldroup, th e nonmoving party. As the Eleventh Circuit has noted, "the `facts,' as accepted at the s u m m a ry judgment stage of the proceedings, may not be the `actual' facts of the case."

3

Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 925 n.3 (11th Cir. 2000). The s u b m iss io n s establish the following facts for the purpose of summary judgment: O n the evening of April 9, 2007, at about 5:15 p.m., Gilliam was driving in his car to a local gym to play pick-up basketball with a few friends. Gentry, on routine trafficc o n tro l duty and running radar from his police motorcycle, clocked Gilliam driving ten m ile s per hour above the posted speed limit. Gentry also noticed that Gilliam was not w e a rin g his seat belt. He promptly turned on his lights, gave pursuit, and pulled over G illia m 's car. A f te r Gilliam pulled over and parked his car, Gentry approached it and observed G illia m rummaging through the car and the glove box. When Gentry asked Gilliam to p ro d u c e his drivers license and proof of insurance, Gilliam responded that he did not have e ith e r document with him. Instead, he provided to Gentry his social security number, a b ill from an insurance company, and a tag receipt from 2006. Before returning to his m o to rc yc le to run Gilliam's information, Gentry asked Gilliam if he had any drugs on h im . Gilliam replied that he did not.1 During this short conversation, Gilliam answered a ll of Gentry's questions fully and politely. G e n try then returned to his motorcycle and asked Dispatch to run a license check

A c c o rd in g to the defendants, Gentry did not ask Gilliam if he had any drugs on h im at this time. Additionally, Gentry told state investigators he had smelled marijuana th ro u g h the open window of Gilliam's car. But the defendants do not assert this fact in th e ir version of the facts, and since Waldroup does not assert it either, the Court will ig n o re it for purposes of summary judgment. 4

1

using the social security number Gilliam had given him. Dispatch reported that the social s e c u rity number matched a valid drivers license belonging to either a "Eugene Gilliam" or " G e n e Gilliam," described on the license as six feet tall and 200 lbs. This physical d e s c rip tio n did not match Gentry's estimate of the actual size of the person in the car.2 D is p a tc h also told Gentry that Gilliam might be a probationer. And while Gentry was c o m m u n ic a tin g with Dispatch, he witnessed Gilliam moving around in his car, seeming to b e n d down and reach towards and into the floorboards. Based on Gilliam's demeanor a n d abnormal behavior, and the information Gentry had learned from Dispatch, Gentry ra d io e d for backup. E m m a n u e l responded to Gentry's call for backup and parked her police car behind G illia m 's car and Gentry's motorcycle.3 The two officers had a short conversation at G e n try's motorcycle, in which Gentry reported to Emmanuel that Gilliam did not have a n y identification on him and was moving around in the car. Gentry remarked that

2

A t the first autopsy, Gilliam's body weighed 280 lbs.

E m m a n u e l's police car's video camera captured images of the incident from this m o m e n t forward. But the video does not appreciably aid the Court's decision making. Because of its framing, the video shows only the small part of the incident that happened w ith in a few feet of the drivers-side door of Gilliam's car. Even when Gilliam and the o f f ic e rs are within the frame, much of what they do is obscured because Emmanuel is s ta n d in g in front of Gentry and Gilliam, and all three of them are standing behind G e n try's motorcycle. Nor does the video record what Gilliam and the officers said during th e incident. Most importantly, the video does not show the officers' use of their tasers. In short, the video is not dispositive, and because Waldroup has made a plausible a rg u m e n t that the video supports her version of the facts, this Court will credit her take on th e video as a justifiable inference. 5

3

something did not feel "right" about the situation and that he was going to ask Gilliam to g e t out of his car. Both officers then approached Gilliam's car, and Gentry asked Gilliam to step out of the car. Gilliam complied. Gentry told Gilliam that he was going to c o n d u c t a "pat down" search of Gilliam for weapons and that Gilliam should face the car a n d place both of his hands on top of it. Again, Gilliam complied. Shortly thereafter, as G e n try was patting down Gilliam for weapons, Gilliam revealed to the officers that he h a d "three sacks of weed" on him.4 A f te r Gilliam disclosed his possession of marijuana to the officers, Gentry grabbed h o ld of Gilliam's arm and twisted it behind Gilliam's back. Gilliam cried out that Gentry w a s hurting his arm, and he pulled his arm forward from Gentry and placed it back on top o f the car. Gilliam did not move his other hand, which remained on top of the car, and he re m a in e d in compliance with Gentry's earlier verbal commands.5 Im m e d ia te ly after Gilliam pulled his arm forward from Gentry, Gentry shouted to

A c c o rd in g to the defendants, Gilliam did not volunteer this information. Rather, th e defendants allege that Gentry first felt something hard in Gilliam's pocket. Thinking it might be a pocketknife, Gentry removed it and saw that it was only a wad of cash. Gentry had Gilliam hold the cash in his hand on top of the car while Gentry continued the p a t-d o w n search. Then, after searching Gilliam's waistband and unrolling his trouser le g s , Gentry felt a bulge on the inside of Gilliam's thigh and asked Gilliam what the bulge w a s . Only then did Gilliam respond that he had three bags of marijuana on him. T h e defendants' version of the facts does not include any mention of Gentry tw is tin g Gilliam's arm behind his back or of Gilliam pulling his arm forward. In a d d itio n , Waldroup says in her complaint that Gilliam also may have taken a step forward to w a rd the car when he pulled his arm forward, but this Court can find no basis for this a s s e rtio n in the record. 6
5

4

Emmanuel, who was standing a few feet away, to use her taser on Gilliam. Emmanuel th e n shot her taser at Gilliam. When the taser probes hit Gilliam, he raised both of his h a n d s off of the top of the car and collapsed to the ground a few feet away from the car. Gentry jumped on top of him and started kneeing him repeatedly. Both Gentry and E m m a n u e l then used their tasers on Gilliam multiple times, often simultaneously. In a d d itio n , Emmanuel used her taser in drive-stun mode, where the taser is applied without f irin g probes. At some point soon after the first tasering, Gentry told Emmanuel to "tase h im again," to which Gilliam responded, "Y'all are trying to kill me." Gilliam did not s tru g g le , fight back, throw any punches, or kick at the officers. Rather, he merely c o n v u ls e d continuously on the ground for several minutes.6 W h e n the officers eventually stopped using their tasers on Gilliam, Gentry had f ire d his taser sixteen times for a total of 1:29 minutes out of a period of 2:05 minutes, a n d Emmanuel had fired her taser eleven times for a total of 2:16 minutes out of a period

T h e defendants dispute most of these facts. They claim that Gilliam, after a d m ittin g to the officers that he had marijuana, suddenly pushed off of the vehicle and b e g a n to run away. Gentry, who was still holding onto Gilliam's trousers, was dragged b y Gilliam until both of them fell down some ten feet from Gilliam's car. After scuffling w ith Gentry on the ground, Gilliam got up and continued to alternatively run from and f ig h t with the officers as they gave chase for about 150 feet. Gentry brought Gilliam to th e ground at least three times during this pursuit, but each time Gilliam got back up and c o n tin u e d to flee. Eventually, the officers got Gilliam under control by using their tasers o n him after he tripped and fell on a driveway. Gentry also kneed Gilliam several times a n d hit him on his legs with his police baton. 7

6

of 2:41 minutes.7 T h e officers dragged Gilliam out of the street and into a nearby yard, where they h a n d c u f f e d him as he lay face down.8 Gentry radioed to report that Gilliam was in c u s to d y, and he requested medical attention for Gilliam at 5:28 p.m.9 Sometime before th e paramedics arrived, Gilliam complained of chest pains and breathing difficulties. The o f f ic e rs took off the handcuffs, rolled him over onto his back, and handcuffed him again a c ro s s the front of his body. When the paramedics arrived at 5:32 p.m., only four minutes a f te r they had been called, Gilliam could not stand up, and the paramedics carried him to th e ambulance on a stretcher. Gilliam became unresponsive and his arm hung limp off th e side of the stretcher.1 0 The ambulance left for Prattville Baptist Hospital at 5:56 p.m. a n d arrived at 5:58 p.m.

A c c o rd in g to the defendants, neither Emmanuel nor Gentry used their tasers as m u c h as Waldroup claims. Gentry says he used his taser only once for the normal firing tim e of five seconds. Emmanuel says she used her taser three times, once in regular mode a n d twice more in drive-stun mode, all for the normal firing time of five seconds. Also, s h e claims she also fired Gentry's taser once for the normal firing time of five seconds. In the defendants' version of the facts, the officers handcuffed Gilliam where he f e ll¯ o n the driveway and not in the street. Their version does not mention that either o f f ic e r moved Gilliam from the driveway until the paramedics arrived. P ra ttv ille Police Department protocol requires that police officers call paramedics f o r assistance whenever an officer uses a taser on a suspect. In addition, a police d e p a rtm e n t supervisor must respond to the scene of the incident. T h e defendants' version of what happened does not indicate that Gilliam became u n re s p o n s iv e at this time. The paramedics from Prattville Fire/EMS reported soon after th e incident that Gilliam was "alert" and "coherent in speech" and had "normal skin and c o lo r," but that he also had "distressed breathing" and a "rapid pulse." 8
10 9 8

7

About seven hours later, at 12:26 a.m. on April 10, 2007, Gilliam died. Later that d a y, the state medical examiner performed an autopsy on Gilliam's body and listed " h yp e rte n s iv e cardiovascular disease consistent with dysrhythmia" as the final p a th o lo g ic a l diagnosis. He listed the cause of death as "hypertensive cardiovascular d is e a se " and the manner of death as "natural." Using blood drawn from Gilliam at 6:23 p .m . on April 9, 2009, a toxicology screen flagged Gilliam's blood as positive for m a riju a n a and cocaine. T h e re is no evidence, and no party has claimed, that either the officers or any other e m p lo ye e of the City failed to follow the mandatory investigation procedures and re p o rtin g requirements after the incident. As is required each time an officer uses a taser, b o th officers filled out use-of-force reports, which were reviewed by the police d e p a rtm e n t. Both officers were trained and certified to use a taser in June 2004. At the tim e of this incident, the City did not require its officers to get additional taser training e a c h year, and neither Emmanuel nor Gentry had received any training since 2004. In 2 0 0 8 , the City adopted an official policy requiring annual training and re-certification for its officers on the use of their tasers. I V . PROCEDURAL HISTORY W a ld ro u p filed this suit on April 9, 2009. Waldroup makes two claims under 42 U .S .C . § 1983. First, she claims that the officers used excessive force against Gilliam, th e re b y violating his constitutional right under the Fourth Amendment to be free from

9

unreasonable seizures.1 1 Second, she claims that the City caused this constitutional v io la tio n because it failed to adequately train or supervise its officers by not requiring that o f f ic e rs armed with a taser receive additional taser training and re-certification every year. In addition to her federal claims under § 1983, Waldroup asserts that all three of th e defendants are liable under Alabama law for the wrongful death of Gilliam under § 65 -4 1 0 , Code of Alabama (1975). She asserts three theories of liability. First, she alleges G illia m died because of the officers' negligent and wanton misuse of their tasers during th e traffic stop. Second, she alleges Gilliam died because of the officers' failure to seek m e d ic a l attention for Gilliam promptly after they used their tasers. Third, she alleges G illia m died because the City negligently trained and supervised its officers. T h e defendants seek summary judgment. On the § 1983 claims against the o f f ic e rs , the defendants argue Waldroup has not presented sufficient evidence showing an e x c e s s iv e use of force. Also, the officers argue they are entitled to qualified immunity. On the § 1983 claim against the City, the defendants argue Waldroup has not presented s u f f ic ie n t evidence showing that the City's failure to require annual training both

In her original complaint, Waldroup brought claims under § 1983 for excessive f o rc e under only the Eighth and Fourteenth Amendments. In her amended complaint, W a ld ro u p added a claim for excessive force under the Fourth Amendment. Now, in her re s p o n s e to the defendants' motion, Waldroup has conceded she has no basis upon which to bring a claim under either the Eighth Amendment or the Fourteenth Amendment's Due P ro c e s s Clause. Accordingly, this Court will grant summary judgment in favor of the d e f e n d a n ts on these claims, and all that remains of Waldroup's case against the officers u n d e r § 1983 is an excessive-force claim under the Fourth Amendment. 10

11

constituted an official policy of the City and caused the underlying constitutional v io la tio n against Gilliam. O n the state-law claims, the defendants challenge the qualifications and reliability o f Waldroup's two expert witnesses, without which Waldroup cannot prove the officers c a u s e d Gilliam's death. Second, the defendants argue Waldroup has not presented any e v id e n c e establishing the appropriate standard of care in the failure-to-seek-medicala tte n tio n claim. Lastly, the officers argue they are entitled to state-law discretionary i m m u n i t y. V . DISCUSSION A . § 1983 Excessive-Force Claim 1 . Qualified Immunity In response to Waldroup's § 1983 excessive-force claim, the officers contend they a re exempt from liability under the doctrine of qualified immunity. The Court disagrees. Q u a lif ie d immunity protects government officials acting within their discretionary a u th o rity from civil liability in § 1983 actions as long as their conduct "does not violate c le a rly established statutory or constitutional rights of which a reasonable person would h a v e known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "[W]hether an official p ro te c te d by qualified immunity may be held personally liable for an allegedly unlawful o f f ic ia l action generally turns on the `objective legal reasonableness' of the action, a s s e s se d in light of the legal rules that were `clearly established' at the time it was taken."

11

Wilson v. Layne, 526 U.S. 603, 614 (1999) (quoting Anderson v. Creighton, 483 U.S. 635, 6 3 9 (1987)). T o receive qualified immunity, an officer must first show he was acting within his d is c re tio n a ry authority. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). In this c a s e , the parties do not dispute, and the Court agrees, that both officers were acting within th e ir discretionary authority for qualified-immunity purposes. See Vinyard v. Wilson, 311 F .3 d 1340, 1346 (11th Cir. 2002) (holding that "it is clear" that an officer who used e x c e s s iv e force when arresting a suspect and transporting him to jail was acting within his d is c re tio n a ry authority); Lee, 284 F.3d at 1194 (holding that "there can be no doubt" that a n officer who pulled over a suspect for a traffic offense and then arrested her with e x c e s s iv e force was acting within his discretionary authority). O n c e an officer establishes he was acting within his discretionary authority, the b u rd e n then shifts to the plaintiff to show that qualified immunity does not apply. Id. Courts usually apply a two-step test when deciding whether qualified immunity is a p p ro p ria te . Saucier v. Katz, 533 U.S. 194, 201 (2001). A court must first determine w h e th e r the officer's conduct amounted to a constitutional violation. Id. Second, the c o u rt must decide whether the violated right was "clearly established" at the time it was v io la te d .1 2 Id. The intention of this second step is to "ensure that before they are

In Pearson v. Callahan, the Supreme Court ruled that the two-step test e s ta b lis h e d in Saucier is no longer mandatory; instead, courts may analyze whether the v io la te d right was clearly established under Saucier's step two before examining the 12

12

subjected to suit, officers are on notice their conduct is unlawful." Id. at 206. Therefore, if the violated right was not clearly established under contemporary law, qualified im m u n ity still applies. Id. at 201. 2 . Constitutional Violation U n d e r Saucier's step one, this Court first examines whether the officers' conduct, e s p e c ia lly their firing of the tasers, violated Gilliam's constitutional rights. The Court f in d s that it did. " T h e Fourth Amendment's freedom from unreasonable searches or seizures e n c o m p a s s e s the plain right to be free from the use of excessive force in the course of an a rre s t." Lee, 284 F.3d at 1197 (citing Graham v. Connor, 490 U.S. 386, 394S95 (1989)). When a plaintiff contends an officer used excessive force during an arrest or investigatory s to p , the question for the court is whether the officer's conduct was objectively re a s o n a b le in light of the situation confronting the officer. Graham, 490 U.S. at 396S97. "Determining whether the force used to effect a particular seizure is `reasonable' under th e Fourth Amendment requires a careful balancing of `the nature and quality of the in tru s io n on the individual's Fourth Amendment interests' against the countervailing g o v e rn m e n ta l interests at stake." Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8

p o te n tia l constitutional violation under step one. Pearson, 129 S. Ct. 808, 818S21 (2009). But adherence to the two-step procedure is appropriate in this case because the Court f in d s that a constitutional right was violated and that it was clearly established at the time o f its violation. 13

(1985)). T o balance the necessity of the use of force against the plaintiff's constitutional rig h ts , a court must evaluate several factors, including "the severity of the crime at issue, w h e th e r the suspect pose[d] an immediate threat to the safety of the officers or others, and w h e th e r he [was] actively resisting arrest or attempting to evade arrest by flight." Lee, 2 8 4 F.3d at 1198 (quoting Graham, 490 U.S. at 396). In addition, the court must weigh: (1 ) the need for the application of force; (2) the relationship between the need and the a m o u n t of force used; (3) the extent of the injury inflicted; and (4) whether the force was a p p lie d in good faith or maliciously and sadistically.1 3 Hadley v. Gutierrez, 526 F.3d 1 3 2 4 , 1329 (11th Cir. 2008). "Graham dictates unambiguously that the force used by a p o lic e officer in carrying out an arrest must be reasonably proportionate to the need for th a t force . . . ." Lee, 284 F.3d at 1198. Accordingly, "gratuitous use of force when a c rim in a l suspect is not resisting arrest constitutes excessive force." Hadley, 526 F.3d at 1 3 3 0 .1 4
13

T h e fourth factor, which looks at the subjective intent of the officer, is in conflict w ith the holding in Graham that the excessive-force inquiry is completely objective. In f a c t, a couple of panels of the Eleventh Circuit have unilaterally ruled that Graham " in v a lid a te d " or "eliminated" this factor from the excessive-force inquiry. See Lee, 284 F .3 d at 1198 n.7. Nonetheless, another panel of the Eleventh Circuit recently applied all f o u r factors without caveat. Hadley, 526 F.3d at 1329. The Eleventh Circuit has not yet s tru c k this factor in an en banc decision, and as such, this Court believes that the factor, e v e n if not relevant in this case, continues to be part of the Eleventh Circuit's test. In their motion for summary judgment, the defendants argue that the officers are e n title d to qualified immunity because they had "arguable" probable cause to search, a rre s t, and therefore use force against Gilliam, even if they did not have "actual" probable 14
14

When these factors are applied to the facts of this case, which are viewed in the lig h t most favorable to Waldroup, it is abundantly clear that Emmanuel and Gentry used f o rc e that was plainly excessive and grossly disproportionate. F irs t, when Emmanuel fired her taser for the first time, the officers had probable c a u s e to believe Gilliam had committed two traffic offenses¯speeding and driving w ith o u t a seatbelt¯and the unlawful possession of a small amount of marijuana. Generally, "more force is appropriate for a more serious offense and less force is a p p ro p ria te for a less serious one." Lee, 284 F.3d at 1198. None of these three crimes are v e ry serious, nor does the fact that a suspect has committed one or all of them indicate th a t the suspect is more likely to threaten or assault an arresting officer. They are not the s o rt of offenses that would evince to a reasonable officer the need to use more force than

c a u s e to do so. They cite to three cases to support their position: Hunter v. Bryant, 502 U .S . 224, 228 (1991); Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003); Jones v. C a n n o n , 174 F.3d 1271, 1283 n.3 (11th Cir. 1999). B u t these cases and the rule of law they stand for are irrelevant in this case. All th re e cases discuss the distinction between arguable and actual probable cause in the c o n te x t of § 1983 claims for false arrest, and the excessive-force inquiry mandated by G r a h a m is markedly different from the inquiry in other Fourth Amendment contexts. In f a c t, the very concept of probable cause, much less the distinction between arguable and a c tu a l probable cause, is pertinent in the excessive-force context only if a suspect argues th a t any use of force, even if de minimis, is constitutionally excessive because the officer w h o used that force had no probable cause to search or arrest a suspect. B e c a u s e Waldroup makes an excessive-force claim and not an illegal-search or f a ls e -a rre s t claim, and because this Court, based on its assessment of the Graham factors, f in d s that the amount of force used by the officers was excessive regardless of whether p ro b a b le cause existed, the distinction between arguable and actual probable cause is b e s id e the point. 15

normal to subdue the suspected offender. S e c o n d , under Waldroup's version of the facts, Gilliam did not pose a threat to the o f f ic e rs ' safety. He answered Gentry's questions fully and politely, and did not use a b u s iv e or threatening language. He complied with Gentry's verbal commands, even a f te r Gentry twisted his arm behind his back with no warning or explanation. And he did n o t punch or kick at the officers, even in self-defense. Moreover, the officers, both of w h o m were armed, outnumbered Gilliam two to one.1 5 T h ird , Gilliam was not actively resisting or evading arrest under Waldroup's v e rs io n of the facts. When Emmanuel fired her taser at Gilliam for the first time, Gilliam w a s still standing with his hands on top of the car, and he did not attempt to flee during th e time the officers used force on him. In addition, Gilliam's response when Gentry tw is te d his arm behind his back¯to pull his arm forward and away from Gentry in pain, a n d to place it back on top of the car¯cannot be described as "actively resisting" arrest. In fact, the record does not show that the officers ever told Gilliam he was under arrest or n o t complying with their orders. F o u rth , even though there is no evidence the officers used their tasers maliciously o r sadistically, the officers applied that force arbitrarily and unnecessarily. On the facts h e re , the officers did not need to resort to their tasers immediately. Rather, they could

T h e record does not indicate that Gilliam was armed. In addition, the officers h a v e not claimed that they thought or suspected that Gilliam possessed a weapon at the tim e Emmanuel fired her taser for the first time. 16

15

have first warned Gilliam that he was not complying with their orders or told him that he w a s under arrest. F if th , and most important in this case, the amount of force used against Gilliam w a s unreasonably disproportionate to the need for force. There are few situations where it would be reasonable for police officers to apply two tasers simultaneously against a s in g le person for twenty-seven firings over more than two minutes. This is not one of th e m . Even if the Court were to assume that the officers' initial resort to a taser was n e c e s s a ry because Gilliam was actively resisting arrest when he pulled his arm away from G e n try, the officers still were not justified in continue to taser him for two minutes even th o u g h he was either not fighting back or convulsing on the ground. T h e defendants rely on two Eleventh Circuit cases to support their position that the ta s e r use in this case was not excessive force. See Zivojinovich v. Barner, 525 F.3d 1059 (1 1 th Cir. 2008); Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004). But this Court d o e s not believe that either case is on point. Both cases stand for the proposition that a p o lic e officer is entitled to use a taser for a short period of time to subdue a suspect who is belligerent, hostile, or uncooperative, and therefore potentially a threat to the safety of th e officer or others. Zivojinovich, 525 F.3d at 1073; Draper, 369 F.3d at 1278. The m e a s u re d use of a taser in these "difficult, tense, and uncertain" situations, especially w h e n the physical injuries that result are comparatively slight, is reasonably proportionate to the need for force and is not excessive. Zivojinovich, 525 F.3d at 1073; Draper, 369

17

F.3d at 1278. This proposition, however, is inapposite to the facts of this case. Unlike th e plaintiffs in Zivojinovich and Draper, Gilliam did not threaten Emmanuel or Gentry, a c t belligerently towards them, or ignore their instructions. In fact, he fully complied w ith all of their verbal commands. And in spite of his cooperation, the officer used s u b s ta n tia lly more force¯over two minutes of near-continuous tasering¯leading to a g re a te r physical injury¯death¯than did the officers in Zivojinovich and Draper, both of w h o m only used their tasers for a short period of time with little-to-no injury to their re s p e c tiv e suspects. Thus, Emmanuel and Gentry's conduct does not fall within the p ro te c tio n afforded by these two cases. B e c a u s e the Graham factors weigh so heavily in favor of Gilliam, the Court c o n c lu d e s that the facts of this case, when viewed in the light most favorable to W a ld ro u p , show that the officers' use of their tasers constituted excessive force in v io la tio n of Gilliam's Fourth Amendment rights for qualified-immunity purposes.1 6 3 . "Clearly Established" Law U n d e r Saucier's step two, this Court next examines whether the constitutional

T h e defendants also make a related argument that summary judgment is a p p ro p ria te on this § 1983 excessive-force claim because Waldroup has not presented s u f f ic ie n t evidence to create a genuine issue of material fact that the officers violated G illia m 's rights. The Court disagrees. Just as this Court has found a constitutional v io la tio n for qualified-immunity purposes, so too could a reasonable jury find that, based o n the same record and the same reasons, the officers violated Gilliam's Fourth A m e n d m e n t rights. Therefore, the Court will deny the motion for summary judgment to th e extent it relies on this argument. 18

16

right violated by the officers was clearly established at the time of its violation. The C o u rt finds that it was. A constitutional right is clearly established for qualified-immunity purposes in one o f three ways: (1) case law with indistinguishable facts that clearly establishes the right; (2 ) a broad statement of principle in the Constitution, a statute, or case law sufficient to p ro v id e notice that clearly establishes the right, even for cases arising out of factually d if f e re n t situations; or (3) conduct so egregious as to clearly violate a right on its face, e v e n in the total absence of case law. Lewis v. City of W. Palm Beach, Fla., 561 F.3d 1 2 8 8 , 1292 (11th Cir. 2009). T o fall within the third category, in which officers are presumed to have fair w a rn in g of the clear establishment of a right because of the egregiousness of the conduct in question, a court must inquire into whether the officers' conduct "lies so obviously at th e very core of what the Fourth Amendment prohibits that the unlawfulness of the c o n d u c t was readily apparent to the official, notwithstanding the lack of case law." Lee, 2 8 4 F.3d at 1199. Therefore, Waldroup must show that Emmanuel and Gentry's conduct w a s "so far beyond the hazy border between excessive and acceptable force" that the o f f ic e rs must have known they were violating the Constitution without case law on point. Smith v. Maddox, 127 F.3d 1416, 1419 (11th Cir. 1997). This test entails determining w h e th e r the application of the excessive-force standard would inevitably lead every o b je c tiv e ly reasonable officer in Emmanuel and Gentry's position to conclude that the

19

force applied was unlawful. Priester, 208 F.3d 919, 926 (11th Cir. 2000). In this case, the Court does not accept that any reasonable officer could believe th a t Emmanuel and Gentry's conduct was lawful. Simply put, the amount of force used b y the officers in this case was so unreasonably disproportionate to the need for force that th e conduct is unconstitutional on its face. Even though Gentry possessed the lawful a u th o rity to pull over Gilliam's car, conduct a pat-down weapons search, and effect a v a lid custodial arrest, no reasonable officer could believe that Gentry also had the lawful a u th o rity to taser Gilliam, an obedient and nonthreatening suspect, twenty-seven times in tw o minutes. Such force does not serve a legitimate law-enforcement purpose, and it is p re c ise ly the kind of police brutality that lies at the very core of what the Fourth A m e n d m e n t prohibits. T h e Eleventh Circuit has ruled in factually indistinguishable cases that this kind of p o lic e conduct is indeed so egregious as to clearly violate the Fourth Amendment on its f a c e . See Priester, 208 F.3d at 926S27 (finding an egregious violation of the Fourth A m e n d m e n t and denying qualified immunity to an officer who allowed his police dog to a tta c k a passive suspect who had followed the officer's order to lie down on the ground a f te r attempting to flee); Smith, 127 F.3d at 1419 (finding an egregious violation of the F o u rth Amendment and denying qualified immunity to an officer who broke a suspect's a rm even though the suspect had "docilely submitted" to the officer's order to "get d o w n " ). Therefore, not only is this conduct a clearly established constitutional violation

20

under the third category, but this case law clearly establishes the constitutional right in q u e s tio n under the first category as well. B e c a u s e this Court finds that every reasonable officer would conclude that the c o n d u c t of which Waldroup complains is unconstitutional, and because this finding c le a rly falls within Eleventh Circuit precedent, this Court must deny qualified immunity. Therefore, the Court will deny the motion for summary judgment to the extent it is p re d ic a te d on this basis. B . § 1983 Failure-to-Train Claim In response to Waldoup's § 1983 failure-to-train claim, the City argues Waldoup h a s failed to present sufficient evidence showing that the City's allegedly inadequate tra in in g and supervision of its officers constituted an official policy or custom of the City a n d caused the violation of Gilliam's constitutional rights. The Court agrees. A municipality is not liable for the constitutional torts of its police officers under a th e o ry of respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Rather, a plaintiff seeking to hold a municipality accountable under § 1983 must establish th a t the municipality adopted an official policy or custom that caused the constitutional v io la tio n . Id. at 694S95. Therefore, a municipality is not automatically liable under § 1983 even if it inadequately trained or supervised its officers and those officers violated a n o th e r person's constitutional rights. Indeed, when asserting inadequate training or s u p e rv is io n as the basis for liability, the plaintiff must show that: (1) the municipality

21

failed to adequately train or supervise its officers; (2) this failure was part of an official p o lic y or custom of failing to adequately train or supervise; and (3) the failure caused the o f f ic e rs to violate a person's constitutional rights. Gold v. City of Miami, 151 F.3d 1346, 1 3 5 0 (11th Cir. 1998) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 389S91 (1 9 8 9 )). S in c e a municipality rarely will have an express written or oral policy of in a d e q u a te ly training or supervising its police officers, a plaintiff may prove a municipal p o lic y or custom by showing that the municipality's failure to adequately train or s u p e rv is e evidences a "deliberate indifference to the rights of persons with whom the p o lic e come in contact." Gold, 151 F.3d at 1350 (quoting Canton, 489 U.S. at 387). A p la in tif f seeking to establish a municipality's deliberate indifference "must present some e v id e n c e that the municipality knew of a need to train and/or supervise in a particular area a n d the municipality made a deliberate choice not to take any action." Id. This k n o w le d g e requirement is "intentionally onerous" for plaintiffs because to require less w o u ld be to allow a municipality to be held liable solely on the basis of respondeat s u p e rio r. Id. at 1350 n.10. T h e Eleventh Circuit has determined that the knowledge requirement is satisfied in o n ly two circumstances. First, a plaintiff must prove that the municipality was aware of a p a tte rn of similar constitutional violations in the past. Lewis, 561 F.3d at 1293. Alternatively, a municipality is presumed to have knowledge, even without evidence of

22

prior incidents, if the plaintiff shows that the likelihood for constitutional violation was so h ig h as to make the need for training or supervision obvious. Id. H e re , Waldroup has not presented any evidence of a pattern of similar c o n s titu tio n a l violations in the past, but instead explicitly relies on the argument that the C ity's failure to require taser training and re-certification for its officers each year falls u n d e r the alternative method of proving knowledge, the "obvious need" test.1 7 Thus, W a ld ro u p asks the Court to apply a test that is almost impossible to meet. To date, the S u p re m e Court, in dictum, has given only one example of a need to train being "so o b v io u s " that a municipality could be liable without a pattern of constitutional violations: th e use of deadly force where firearms are provided to officers. Canton, 489 U.S. at 390. Since then, the Supreme Court has characterized these comments as "simply h yp o th e siz [ in g ]" in a "narrow range of circumstances" where a constitutional violation m ig h t be a highly predictable consequence of the failure to train. Bd. of County Comm'rs v . Brown, 520 U.S. 397, 398 (1997). Also, the Eleventh Circuit has consistently refused to extend the logic of this hypothetical example to other situations involving archetypal la w -e n f o rc e m e n t activities where municipalities have failed to provide any training. See L e w is , 561 F.3d at 1293 (finding no obvious need to train officers on the application of a

In her complaint, Waldroup alluded to one prior incident of excessive force, a c a s e involving a complainant named Kelly Harris. But the record does not include any e v id e n c e about this incident, and Waldroup's response to the defendants' motion relies s o le ly on the "obvious need" test and does not even mention that Waldroup might prove h e r case in any other manner. 23

17

"hobble" restraint); Gold, 151 F.3d at 1352 (finding no obvious need to train officers on h o w to respond to handcuff complaints from suspects); Young v. City of Augusta, 59 F.3d 1 1 5 0 , 1171S72 (11th Cir. 1995) (finding no obvious need to train jail employees "to re c o g n iz e the need to remove a mentally ill inmate to a hospital or to dispense medication a s prescribed"). This case law holds that an "obvious need" claim must be based on a " p a rtic u la rly glaring omission in a training regimen" and not merely on "possible im p e rf e c tio n s " in that regimen. Gold, 151 F.3d at 1352. T h e City's failure to re-train its officers on the use of their tasers every year is not a "particularly glaring omission" because the use of a taser is distinguishable from the use o f a firearm in the Supreme Court's sole hypothetical example. The use of a firearm a g a in s t a person is presumptively the use of deadly force, while the use of a taser is not p re s u m p tiv e ly the use of deadly force. Indeed, tasers are marketed by their manufacturer a n d purchased for use by police departments precisely because they are a nonlethal a lte rn a tiv e to firearms. In this respect, tasers are more similar to police batons than f ire a rm s : although a rogue police officer might unreasonably apply a taser with deadly f o rc e , when used properly by a reasonable police officer, a taser is designed to avoid d e a th and not cause it. M o re o v e r, this is not a case where the City provided no training at all. Instead, b o th Emmanuel and Gentry were fully trained and certified to use their tasers in 2004, h a v in g taken an intensive eight-hour course covering the history, mechanics, and use of

24

the taser, including safety and legal issues associated with its use. The course included p ra c tic a l exercises and scenario-based training to make sure the officers were able to d e p lo y and fire their tasers safely. Afterwards, both officers passed written and practical e x a m in a tio n s . Given the nature of this training, which conformed with City policy, and w ith no evidence in the record showing it was not sufficient, the Court finds that W a ld ro u p has proved nothing more than "possible imperfections" in the City's training p ro g ra m . T h u s , because Waldroup has not presented sufficient evidence to create a genuine is su e of material fact on the City's deliberate indifference, Waldroup cannot establish that th e failure to train was part of an official policy of the City. E v e n if Waldroup had presented sufficient evidence showing that the City's failure to train was an official policy, summary judgment would be appropriate nonetheless b e c a u s e Waldroup has not presented any evidence showing that the deficiency in training a c tu a lly caused the officers' use of excessive force. In City of Canton v. Harris, the S u p re m e Court emphasized the need for a close causal link between the identified d e f ic ie n c y in the training program and the underlying constitutional violation, and it a d v is e d courts to ask whether the injury could "have been avoided had the employee been tra in e d under a program that was not deficient in the identified respect." 489 U.S. at 391. But Waldroup has not presented any evidence that the officers used their tasers on G illia m because they did not know how to use their tasers, did not understand the law of

25

excessive force as it relates to tasers, or had any other deficit that could have been re m e d ie d by more training. Consequently, Waldroup has failed to show a genuine issue o f material fact on the causation element of the failure-to-train claim as well, and the City is entitled to summary judgment on two grounds.1 8 C . State-Law Wrongful-Death Claims 1 . The Daubert Standard T h e defendants argue the Court should exclude the reports and testimony of two of W a ld ro u p 's expert witnesses, Dr. James Lauridson ("Lauridson") and Dr. Scott Bell (" B e ll" ). The Court agrees. F e d e ra l Rule of Evidence 702 governs the admissibility of expert testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of f a c t to understand the evidence or to determine a fact in issue, a witness q u a lif ie d as an expert by knowledge, skill, experience, training, or e d u c a tio n , may testify thereto in the form of an opinion or otherwise, if (1) th e testimony is based upon sufficient facts or data, (2) the testimony is the p ro d u c t of reliable principles and methods, and (3) the witness has applied th e principles and methods reliably to the facts of the case.

T h e defendants also argue they are entitled to summary judgment on Waldroup's § 1983 claims because state law either precludes or substantially limits Waldroup's p o te n tia l recovery of damages. The first argument, which would prevent recovery against th e City, is moot because this Court will grant summary judgment to the City on all of the c la im s against it. The second argument, which involves a general cap on damages, is not a n appropriate issue for summary judgment because it involves only a partial limitation on re c o v e ry and does not affect any claim in full. Therefore, the Court will deny the portion o f the defendants' motion for summary judgment based on these arguments. 26

18

Fed. R. Evid. 702. As the Supreme Court made clear in Daubert, Rule 702 compels the d is tric t court to perform a "gatekeeping" function concerning the admissibility of expert te s tim o n y to ensure that speculative and unreliable opinions do not reach the jury. Daubert, 509 U.S. at 589 n.7. "The judge's role is to keep unreliable and irrelevant in f o rm a tio n from the jury because of its inability to assist in the factual determinations, its p o te n tia l to create confusion, and its lack of probative value." Allison v. McGhan Med. C o r p ., 184 F.3d 1300, 1311S12 (11th Cir. 1999). A c c o rd in g to the Eleventh Circuit, expert testimony is only admissible under Rule 7 0 2 if it satisfies three broad requirements: (1 ) the expert witness is qualified to testify competently about the matters h e intends to address; (2) the methodology used by the expert to reach his c o n c lu s io n is sufficiently reliable as determined by the sort of inquiry m a n d a te d by Daubert; and (3) the testimony is relevant in that is assists the trie r of fact, through the application of scientific, technical, or specializes e x p e rtis e , to understand the evidence and to determine a fact in issue. U n ite d States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting City of T u sc a lo o s a v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1999). The proponent o f the expert testimony bears the burden of satisfying the requirements of Rule 702 by a p re p o n d e ra n c e of the evidence and thereby proving its admissibility. Id. at 1260. T h e first test under Rule 702 is whether the witness offering the expert testimony is qualified to do so. There is no bright-line rule for determining whether a given witness is qualified to offer expert testimony. Rather, the decision is inherently case specific and th e re f o re lies within this Court's discretion. Nevertheless, Rule 702 does offer a basic 27

framework for evaluating a witness's qualification by providing that expertise must be e s ta b lis h e d by one or more of the following bases: knowledge, skill, experience, training, a n d education. T h e second test under Rule 702 is whether the expert testimony offered is reliable. When evaluating the reliability of scientific or medical expert testimony, the trial judge m u s t assess "whether the reasoning or methodology underlying the testimony is s c ie n tif ic a lly valid and . . . whether that reasoning or methodology properly can be a p p lie d to the facts in issue." Daubert, 509 U.S. at 592S93. T o evaluate the reliability of a scientific expert opinion, a court considers several f a c to rs : (1) whether the expert's theory can be and has been tested; (2) whether the theory h a s been subjected to peer review and publication; (3) whether the known or potential rate o f error of the methodology is acceptable; and (4) whether the theory is generally a c c e p te d in the proper scientific community. McDowell v. Brown, 392 F.3d 1283, 1298 (1 1 th Cir. 2004) (citing Daubert, 509 U.S. at 593S94). These factors are illustrative, not e x h a u s tiv e , and a court should "consider any additional factors that may advance its Rule 7 0 2 analysis." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). These a d d itio n a l factors may include whether the expert developed his opinion expressly for the p u rp o s e s of testifying, unjustifiably extrapolated from an accepted premise to an u n f o u n d e d conclusion, failed to rule out other possible causes or adequately account for o b v io u s alternative explanations, or relied on insufficient facts, anecdotal evidence, or

28

mere temporal proximity. Fed. R. Evid. 702 advisory committee's note (2000). Sometimes the specific Daubert factors will aid in determining reliability; sometimes th e s e other questions may be more useful. As a result, "the trial judge must have c o n s id e ra b le leeway in deciding in a particular case how to go about determining whether p a rtic u la r expert testimony is reliable." Kumho Tire, 526 U.S. at 152. 2 . Dr. James Lauridson L a u rid s o n , a Certified Forensic Pathologist, performed a second autopsy on G illia m 's body. Based on that procedure, Lauridson will testify to the following opinion: " It is my opinion that based on the chronology of events, the collapse le a d in g to the death of Mr. Eugene Gilliam was initiated by the police arrest a n d restraint." A c c o rd in g to his deposition testimony, Lauridson will not testify about the actual cause of G illia m 's death because the second autopsy did not yield enough information for L a u rid s o n to be able to make this assessment at an acceptable level of confidence. Lauridson also affirmatively stated at his deposition that he will not and cannot testify to a n y link between Gilliam's heart failure and the use of the tasers by the officers. Instead, L a u rid s o n 's opinion is based solely on the temporal proximity of the incident to Gilliam's d e a th , some seven hours after the police used their tasers on him. A s to Lauridson's qualifications, this is an easy case. The Court does not have any d o u b ts about his qualifications to testify as an expert witness. Lauridson is familiar with to x ic o lo g y, cardiology, and substance abuse, which are all fields of medicine that are

29

relevant in establishing Gilliam's cause of death. He understands these fields in the c o n te x t of his career as a forensic pathologist, where it has been his job for decades to p in p o in t the cause and manner of death. In addition, he has performed hundreds of a u to p s ie s and has testified on cause-of-death issues in more than 200 cases as an expert w itn e s s . This is overwhelming evidence in favor of his qualifications to be an expert. T h e defendants argue Lauridson is not qualified because he admits that he does not h a v e specific knowledge about the effect of a taser on the human body and has not p e rf o rm e d an autopsy where excessive taser use might have been the cause of death. This a rg u m e n t is not persuasive. First, Lauridson is familiar with methods of police restraint a n d their effects on the human body; such issues arise regularly in both the literature of f o re n sic pathology and the day-to-day job of a forensic pathologist. Second, Lauridson d o e s not need to be completely proficient in every sub-specialty of forensic pathology to b e qualified to testify. He is sufficiently trained in his field of expertise, a specialty in and o f itself, and has enough experience in that field to be able to speak meaningfully to the ju ry about cause-of-death and manner-of-death issues across a whole range of facts p e c if ic situations. E v e n though Lauridson is qualified to testify as an expert witness, the Court finds th a t his testimony in this particular case is not admissible because it does not meet the re q u ire m e n ts of Daubert. The Court recognizes that Lauridson's opinion does not use the w o rd "cause" and that he admitted at his deposition that he cannot state within a

30

reasonable degree of medical certainty that any single action by the officers was the c a ta lys t or medical cause of Gilliam's death. Nonetheless, Lauridson clearly does intend to testify that the officers' use of force was the "but for" cause of Gilliam's death in the s e n s e that whatever ultimately killed Gilliam was set off by the officers' use of force. L a u rid s o n 's only rationale for this opinion is the temporal proximity of the incident to Gilliam's death. Therefore, his opinion is hard for the Court to assess under the D a u b e r t factors because it does not proceed from a conclusion produced by a scientific m e th o d o lo g y accepted by the Eleventh Circuit. It is merely the product of the argument th a t what happens first must have caused what happened second. This Court will not a d m it expert testimony that seeks to show that the existence of a temporal relationship b e tw e e n the use of excessive force and Gilliam's death is sufficient to prove a causal re la tio n s h ip between those two events, especially when there is a seven-hour gap between th e m and the testimony does not take into account Gilliam's prior drug use, preexisting c o n d itio n s , or subsequent medical procedures. Simply put, correlation is not causation, a n d as the Eleventh Circuit has held, the post hoc ergo propter hoc fallacy is not reliable e n o u g h to be allowed as expert testimony. McClain v. Metabolife Int'l, Inc., 401 F.3d 1 2 3 3 , 1243 (11th Cir. 2005). Therefore, the Court finds that despite Lauridson's q u a lif ic a tio n s , his opinion testimony is not reliable enough to be admitted. The Court will e x c lu d e his report and testimony.

31

3. Dr. Scott Bell B e ll, a physician with a general practice in internal medicine, seeks to testify that G illia m 's cardiac arrest was a result of the use of the tasers. His report states: " A f te r review of the medical and autopsy record you have provided, I d e te rm in e that Mr. Gilliam died as a result of cardiac failure brought on by im m o b iliz a tio n and restrain with the use of the taser device. Restraint by p h ys ic a l force may also be a factor, but there is no data available for me to m a k e that determination. The mechanism for cardiac failure in this case is lik e ly catecholamine-induced myocardial damage." B e ll explained in his deposition testimony that Gilliam's death was most likely caused by " s tre s s cardiomyopathy." In other words, Gilliam "was under psychological stress which re s u lts in the release of catecholamines which has toxic effects on cardiac muscles which re s u lte d in him presenting to the hospital in cardiopulmonary arrest and dying shortly a f te rw a rd s ." When asked to identify what physical stress Gilliam was under, Bell a s s e rte d that it was police restraint with the use of the taser. T h e Court finds that Bell is not qualified to testify as an expert witness. Bell is not b o a rd certified in cardiology, toxicology, psychology, substance abuse, electrop h ys io lo g y, or forensic pathology¯all subjects that come to bear in this case and in Bell's p a rtic u la r theory of the case. Rather, Bell's training and experience is in seeing patients in the clinical setting of his practice. But Bell has not provided any evidence that his c lin ic a l work has given him any knowledge about any of these fields of medicine beyond th e knowledge that comes with a medical degree. Second, Bell has not published any a rtic le s or conducted any studies regarding any topic closely related to any subject matter 32

remotely related to his testimony. Third, Bell admitted at his deposition that he has no k n o w le d g e of tasers or other police-restraint methods. Fourth, Bell has never been q u a lif ie d to testify as an expert witness on any issue in any other case before this one. In s h o rt, Waldroup has not presented any evidence showing that Bell had any expertise in th e medical fields about which he is proposing to testify before he was called to be a w itn e s s in this case. T h e re f o re , Bell's sole argument for his qualifications are that as a licensed medical p h ys ic ia n and a general practitioner, he is nonetheless qualified to testify about most, if n o t all, medical issues, even without any other indicia of specialization. A court must in q u ire into whether a proposed expert witness's qualifications correspond to the subject m a tte r of his proffered testimony. In other words, a witness qualified as an expert in one s u b je c t may not offer expert testimony on another subject. But this is complicated when a p ro p o s e d expert witness has only general knowledge in a field. Courts are split on w h e th e r to admit the testimony of this type of witness. For example, some courts have c o n c lu d e d that general knowledge in a field is sufficient to qualify a witness as an expert in that field's specialities as well, and that a general practitioner can offer expert te s tim o n y concerning medical conditions routinely treated by specialists.1 9 In these cases, th e courts hold that a witness's lack of specialization goes only to the weight of the

S e e , e.g., Payton v., Abbott Labs., 780 F.2d 147, 155 (1st Cir. 1985) (holding that tw o board-certified obstetricianSgynecologists were qualified to offer expert testimony in te ra to lo g y, the study of abnormal development). 33

19

witness's testimony and does not disqualify the witness. But other courts have disagreed a n d have held that generalists may not testify on specialty areas when their lack of e x p e rtis e in those areas would mean that they could not assist the trier of fact.2 0 This C o u rt can find no Eleventh Circuit decision that gives any meaningful guidance. In practice, this means that the matter is within this Court's discretion as it looks to th e specific facts of this case. Qualifications are relative, being more or less useful d e p e n d in g on the expert's familiarity with the subjects that are relevant to the matter to be d e c id e d by the trier of fact. Therefore, qualifications must not be evaluated in the a b s tra c t. Rather, the Court's gatekeeping obligation requires that the Court evaluate q u a lif ic a tio n s in light of what is necessary to explain a particular subject matter to the ju ry. Compared to Lauridson, who is specialized in a field of medicine relevant to the c a u s a tio n inquiry, Bell is not specialized in any field relevant to this inquiry. And W a ld ro u p has not made any showing to this Court that Bell has the experience necessary to give him the expertise in these relevant subject areas. The Court will not accept W a ld ro u p 's assertion that Bell "knows more than a layperson" in these relevant fields w ith o u t some kind of proof beyond Bell's license to practice medicine. It is true that Bell admitted at his deposition that he was not qualified to testify

S e e , e.g., Chikovsky v. Ortho Pharm. Corp., 832 F. Supp. 341 344S46 (S. D. Fla. 1 9 9 3 ) (holding that a board-certified obstetricianSgynecologist was not qualified to offer e x p e rt testimony that the topical application of Retin-A causes birth defects because the p h ys ic ia n had no demonstrated expertise in embryology, teratology, or genetics). 34

20

about the effects of a taser on the human heart muscle.2 1 Nonetheless, the Court does not b e lie v e that this statement is relevant to the inquiry into Bell's qualifications in this case b e c a u s e his theory of Gilliam's death is not that the electric current from the taser caused c a rd ia c arrest. Rather, his theory is that the officers' use of force, including their use of th e tasers, caused Gilliam to be under stress, which in turn caused a stress-induced heart a tta c k . Therefore, the defendants are not correct when they argue Bell is disqualified of h is own admission. N e v e rth e le s s , the Court does find that Bell's comment at his deposition undercuts th e argument that, by virtue of his medical degree and generic medical experience, Bell is q u a lif ie d to testify to the more specific medical-causation issues in this case. If he is a d m itte d ly not qualified as a generalist to testify about the effect of taser's electric c u rre n ts on the heart, then it is not clear without other evidence supporting his q u a lif ic a tio n s why he is qualified as a generalist to testify about the stress and p s yc h o lo g ic a l effects of the taser on the heart. The onus is on Waldroup to explain the d if f e re n c e , and she has failed to do so. E v e n if Bell were qualified to testify as an expert, his testimony would not be re lia b le . First, Bell relied on incomplete and insufficient data in the formulation of his o p in io n . He admitted at his deposition that he did not have access to or examine either of

B e ll said: "I'm not going to testify what a taser can do to the cardiac muscle and h o w it gets to the cardiac muscle. That's not my expertise, and I'll agree with that." 35

21

the two autopsies performed on Gilliam's body, and he has not reported what amount of c a te c h o la m in e s , if any, were present in Gilliam's blood. Second, Bell has not supported h is catecholamine theory either in the abstract or specifically in this case. Bell has not e x p la in e d the mechanism by which an increased catecholamine release causes cardiac a rre s t, nor has he provided data or scholarly support to validate this mechanism. He has p ro v id e d no evidence of baseline catecholamine levels, no explanation of whether the a m o u n t of catecholamines in Gilliam's blood was sufficiently different from those b a s e lin e levels to cause cardiac arrest, and no information regarding what various factors a n d activities could cause catecholamine-induced cardiac failure. In addition, Bell has f a ile d to explain how a taser device or any other method of police restraint causes an in c re a se in catecholamine levels in the first place. Third, Bell has not offered any e v id e n c e that any of the other possible explanations for Gilliam's death, such as substance a b u s e , genetic traits, obesity, and past cardiac problems, did not effect the catecholamines in Gilliam's blood or contribute to causing Gilliam's death. Specifically, Bell has not p ro v id e d any data that explains what effect cocaine and marijuana has on catecholamine le v e ls . In short, Bell's testimony draws speculative conclusions from insufficient data. Bell does not describe the method he used to reach his conclusion and fails to provide s c ie n tif ic data supporting his conclusion. To permit Bell to take the stand would do n o th in g more than confuse the jury. The Court will exclude his report and testimony.

36

4. Summary Judgment U n d e r Alabama's wrongful death statute, Waldroup must prove as a part of her p rim a facie case that the defendants' actions were the actual and proximate cause of the in ju rie s alleged. Dibiasi v. Joe Wheeler Elec. Membership Corp., 988 So. 2d 454, 460 (A la . 2008). Me