Korff v. Phoenix, City of et al

Filing 185

ORDER granting #110 Motion for Order Requiring Plaintiff to Sign and Have Notarized a Next-of-Kin Consent & Release Authorization of Specimen Release for Outside Testing and Motion to Extend Deadline for Defendants to Disclose Pharmacology Expert. See attached.pdf for details. Signed by Magistrate Judge Eileen S Willett on 3/16/2015. (ACL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lynne Korff,

No. CV-13-02317-PHX-ESW
Plaintiff,

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v.

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ORDER

Phoenix, City of, et al.,

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Defendants.

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The Court has considered Motion for Order Requiring Plaintiff to Sign and Have

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Notarized a Next-of-Kin Consent & Release Authorization of Specimen Release for

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Outside Testing and Motion to Extend Deadline for Defendants to Disclose

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Pharmacology Expert (Doc. 110), Plaintiff’s Response (Doc. 123), and Defendants’

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Reply (Doc. 166). Oral argument has been requested. However, the Court deems oral

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argument unnecessary to a determination of the issues presented.

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This is a wrongful death and 42 U.S.C. § 1983 case arising from a shooting by

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City of Phoenix Police Officers which occurred in Phoenix, Arizona, on June 4, 2012.

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The decedent, Timothy O’Brien, was the Plaintiff’s adult son.

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Complaint (Doc. 1-1) filed November 13, 2013, the Plaintiff alleges that Timothy was

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“disabled” and “diagnosed with a mental disability.” The Plaintiff further alleges that the

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Defendant officers knew or “should have known that Timothy had special needs, based

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on reasonable observation and diligence, including their knowledge of the setting of

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Telephone Pioneer Park or simply talking to and interacting with Timothy.” Id. The

In the Amended

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Plaintiff alleges that the officers had “no reasonable basis to suspect that Timothy posed

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an immediate threat to them or anyone else.” Id. The officers came into contact with

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Timothy while responding to a 911 call made by a third party. Dispatch initially relayed

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to officers the following: “Male with a bat yelling at people at the public pool.” (Doc.

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123-1, p. 2). The parties dispute the facts at the scene leading up to the shots fired by

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officers which resulted in Timothy’s death.

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Discovery in the case is on-going. In December 2014, Defendants received and

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reviewed Timothy O’Brien’s mental health records from Partners in Recovery. The

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records include care provider entries from 2012 immediately prior to Timothy’s death.

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These visit notes raise the issues of Timothy’s medication compliance and his use of

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spice and alcohol. Defendants are requesting that they be allowed to test a frozen blood

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sample of Timothy which was retained by the Maricopa County Medical Examiner’s

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Office at the time of his autopsy. Defendants request permission to test the decedent’s

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blood for the presence of synthetic cannabinoids, spice, cannabis, and his prescribed

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medication. Defendants have confirmed with the Maricopa County Medical Examiner

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that the blood sample exists and that it can be sent to a lab in Pennsylvania which can test

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the sample relatively quickly.

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O’Brien’s blood system and his medication compliance at the time of his death are

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relevant to the issue of his mental state and any behaviors he may have exhibited prior to

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his death. Though a toxicology report was generated as a result of Timothy’s autopsy,

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his blood was not tested to detect the presence of his prescribed medication, spice, or

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cannabis.

Defendants argue that the presence of spice in Mr.

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Defendants request that the Court order Plaintiff to sign before a notary a Next-of-

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Kin Consent and Release Authorization of Specimen Release for Outside Testing.

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Defendants also request an extension of time to disclose their pharmacology expert’s

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opinions regarding the results.

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Plaintiff objects to Defendants’ requests because: (1) good cause has not been

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shown to support an extension of the expert disclosure deadlines or further discovery in

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the case; (2) Defendants did not discuss with opposing counsel the full breadth of the

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testing requested prior to filing their discovery motion; (3) any illegal drug or substance

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use and medication compliance by the decedent is irrelevant and highly prejudicial; and

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(4) the late expert opinion sought is cumulative of expert opinions previously disclosed.

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Defendants have provided to Plaintiff reports addressing Timothy’s use of spice,

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specifically from Charles Huth and Pamela Potter-O’Brien, Ph.D.

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The Court finds, based upon all the information presented, that the information

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Defendants seek is relevant and reasonably calculated to lead to the discovery of

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admissible evidence pursuant to Rule 26(b), Fed. R. Civ. P. The testing of Timothy’s

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blood does not result in production of unreasonably cumulative, duplicative, or

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burdensome evidence. Whether the decedent was under the influence of spice, cannabis,

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or other substances during his contact with the officers and whether he was taking

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prescribed medication is relevant to the issue of the decedent’s behavior at the park at the

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time he came into contact with the police. Timothy’s behavior in the park as observed by

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the officers and witnesses is in dispute. “In a case . . . where what the officer perceived

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just prior to the use of force is in dispute, evidence that may support one version of events

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over another is relevant and admissible.” Boyd v. City & Cnty of San Francisco, 576

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F.3d 938, 948-49 (9th Cir. 2009).

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prescribed medication or other substances recently disclosed in medical records reflective

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of the days prior to his death. Timothy’s blood sample results are probative of Timothy’s

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conduct immediately prior to the shooting. Cf. Hayes v. County of San Diego, 736 F.3d

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1223 (9th Cir. 2013) (where there is no factual dispute regarding actions of decedent,

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evidence of drugs and/or alcohol in decedent’s blood is irrelevant).

Timothy’s blood has never been tested for his

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The Court further finds that the pharmacology experts for both Defendants and

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Plaintiff may update their respective opinions upon receipt of the blood test results. No

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prejudice to either side is shown by an extension of the expert opinion deadline to

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accommodate the new test results sought. No trial date has been set. Defendants have

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demonstrated good cause to extend the deadline and attempted to meet and confer prior to

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filing their Motion. Therefore,

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IT IS ORDERED that Plaintiff sign before a notary the Next-of-Kin Consent &

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Release Authorization of Specimen Release for Outside Testing within 14 days of the

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filing of the Court’s Order.

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IT IS FURTHER ORDERED extending Defendants’ pharmacology expert opinion

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disclosure deadline and Plaintiff’s rebuttal pharmacology expert opinion disclosure

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deadline to 30 days after the receipt of Plaintiff’s signed authorization and 30 days after

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the service of Defendants’ supplemental disclosure statement, respectively.

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IT IS ORDERED granting Motion for Order Requiring Plaintiff to Sign and Have

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Notarized a Next-of-Kin Consent & Release Authorization of Specimen Release for

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Outside Testing and Motion to Extend Deadline for Defendants to Disclose

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Pharmacology Expert (Doc. 110).

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Dated this 16th day of March, 2015.

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Honorable Eileen S. Willett
United States Magistrate Judge

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