Godawa et al v. Byrd
Filing
66
MEMORANDUM OPINION AND ORDER; 1)Pla's 47 Motion for Summary Judgment is DENIED; 2)Def's 48 Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. The Motion is Granted as to Plas' federal claims and stat e law loss of consortium claim. The Motion is granted as to Plas' remaining state law claims, but these claims are dismissed without prejudice; 3)Def's 49 Motion to Strike the expert's report and testimony and preclude his trial testimoy is DENIED AS MOOT; 4)A separate judgment will enter concurrently. Signed by Judge William O. Bertelsman on 8/1/2014. (LST)cc: COR
EBBtern District of Kentucky
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
F I LED
AUG -1 2014
AT COVINGTON
ROBERT R, CARR
CLERK U.S. DISTRICT COURT
CIVIL ACTION NO. 2:12-cv-170(WOB-JGW)
EDWARD GODAWA, ET AL.
VS.
PLAINTIFFS
MEMORNADUM OPINION AND ORDER
OFFICER DAVID BYRD
DEFENDANT
This is a 42 U.S.C. §1983 and state law action arising from
the death of a young man,
Michael Godawa,
when he attempted to
flee the scene of an arrest by assaulting a police officer with
his
vehicle.
The officer in this
case was
forced
to make a
split-second judgment to protect his life and the lives of the
public.
seconds
The single shot that was fired by the officer within
of
the
vehicular
assault
was
fatal,
and
this
action
ensued.
Plaintiffs allege a violation of the Fourth Amendment
use of excessive force,
due process clause,
for
a violation of the Fourteenth Amendment
and state law claims of wrongful death and
"intentional tort, battery and murder."l
This matter is now before the Court on Plaintiffs'
for
summary
judgment
(Doc.
47),
Defendant's
motion
cross-motion
for
The court construes the latter claim as a single claim of the intentional
tort of battery.
1
summary judgment (Doc.
48),
and Defendant's motion to strike the
report and testimony of Plaintiffs' expert witness (Doc.
49).
The Court held oral argument on these motions on June
Christopher Roach was present
2014.
Jeffrey Mando,
Philip
Taliaferro,
for
III,
Daly were present for the Defendant.
the
Ryan
Plaintiffs,
Turner,
reporter,
Thereafter,
62,
Joan
Averdick,
and
and
Levi
Defendant Officer Byrd and
Official
Chief of Police Tim Thames were also in attendance.
court
27,
recorded
the
proceedings.
Doc.
the Court took the matter under advisement.
Order.
On July
parties
Supreme
U.S.
2014)
to
1,
file
Court
the Court issued an order directing the
supplemental
decision,
134 S.
(Doc.
2014,
Ct.
2012,
briefs
Plumhoff
L.
v.
Ed. 2d
addressing
Rickard,
82
No.
USLW
the
recent
12-1117,
4394
(May
27,
63).
Having heard from the parties, reviewed the parties' briefs
and
supplemental
briefs,
and
being
sufficiently
advised,
the
Court hereby issues the following Memorandum Opinion and Order.
-2
Michael Godawa (the "decedent") was a 21-year-old patron at
the Finish Line Bar in Elsmere, Kentucky, on the evening of June
22,
2012
and early morning of
Godawa Depo., p.
Byrd,
33.
June
23,
2012.
Doc.
51-I,
T.
At approximately 1:00 a.m., officer David
a police officer for the city of Elsmere,
his regular patrol.
was conducting
Doc. 26 I, Byrd Depo., p. 24.
At the time,
he was patrolling on a bicycle and was wearing his bike patrol
police uniform.
A
Id.
Finish
complained
Line
that
a
drinking underage.
approached
employee
patron
in
the
Doc.
26-1,
parking
Byrd Depo.,
officer
the
lot
p.
appeared
25.
to
and
be
The officer
watched as the suspect decedent drove his car from the back of
the parking lot to an open parking space closer to the front of
Finish Line. 3
Id. at 26.
The officer approached the vehicle and asked the decedent
if he had been drinking,
Doc.
26-1,
1:23:26-32.
Byrd Depo./
and the decedent responded negatively.
pp.
27-28;
Doc.
21-1,
Lapel
Video
at
The officer asked for an explanation of the beer
The parties agreed at the June 27, 2014 hearing to the evidentiary facts as
stated herein.
They are derived from the officer's lapel camera and the
surveillance camera for the tavern's parking lot.
See Eggleston v. Short,
560 Fed. App'x 561, 563 (6th Cir. 2014) (the defendant must agree to the
plaintiff's version of the facts; otherwise an issue of fact is created, and
qualified immunity must be denied).
The conclusions to be drawn from the
facts are, of course, disputed.
3 As
the officer started speaking with the decedent, he turned on his lapel
camera, and the rest of the incident is therefore recorded.
The lapel video
has a timeclock readout, which enables the Court to precisely track the
elapsed time for the critical events that follow.
2
-3
bottle
sitting
in
the
cup
holder
of
the
car,
to
which
the
decedent responded that the beer belonged to his girlfriend, who
was inside the bar.
Doc.
26- 1,
Byrd Depo.,
p.
28 i
Doc.
21- 1,
Lapel Video at 1:23:33-1:24:33.
When the officer asked for
the decedent's
the decedent responded that he was
the license on him.
Doc.
26- 1,
Lapel Video at 1:24:33-45.
licensed,
Byrd Depo.,
did not want
but did not have
p.
27 i
Doc.
2 1 - 1,
The officer then asked the decedent
to submit to a field sobriety test.
1:24:51-1:25:03.
identification,
Doc.
21-1,
Lapel Video at
The decedent responded that he was nervous and
to take the test.
Id.
at
The
1:25:03-1:25:09.
officer instructed the decedent to "hold on a second" while he
went to the rear of the vehicle to retrieve a notepad and pen.
Id.
He then walked back to the decedent's
at 1:25:10-1:25:11.
side window and obtained the decedent's name and social security
number.
Id.
After
questioned
at 1:25:26-1:25:48.
returning
whether
1 : 25 : 48 - 1 : 25 : 51 i
to
the
Doc.
the
vehicle,
decedent
26- 1,
had
the
been
Byrd Depo .,
p.
officer
drinking.
28 .
again
Id.
The
at
decedent
then admitted to lying to the officer and said he actually had
"one or two" drinks and that the beer in the cup holder was not
his
girlfriend's.
Doc.
26- 1,
Byrd Depo .,
Lapel Video at 1:25:51-1:26:25.
-4
p.
28
i
Doc.
21 1,
The decedent
then told the officer he would submit
field sobriety test.
Depo .,
walked
p.
30 .
to
1:26:32-1:27:21;
Doc.
26-1,
Byrd
The officer told the decedent to "hold on"
the
dispatch.
at
Id.
to a
rear
of
the
vehicle
to
request
backup
and
from
Doc. 21-1, Lapel Video at 1:27:21-43.
While
the
officer
was
still
at
his
bicycle
behind
the
vehicle speaking with dispatch, the decedent started his car and
began backing out of his parking spot.
p.
30i
Doc.
21 1,
Lapel
Video
at
Doc.
26-1,
Byrd Depo.,
The
1:27:44-48.
decedent
struck the officer's bicycle and nearly struck the officer in
the process of backing up.
Doc.
As the decedent was backing up,
five times.
26 1, Byrd Depo.,
pp.
23,
30.
the officer loudly yelled "hey"
Doc. 21-1, Lapel Video at 1:27:51-54.
As the decedent shifted the vehicle from reverse to drive,
the officer ran to the front of the car with his gun drawn and
ordered the decedent to stop the car.
31i
Doc. 26-1, Byrd Depo., p.
Doc. 21-1, Lapel Video at 1:27:55-58; Doc. 15-2, Finish Line
Video
at
1: 19: 11-13.
"stop" four times.
4
The
officer
commanded the
decedent
to
Doc. 21-1, Lapel Video at 1:27:55-58.
The decedent accelerated forward at a rate of five to ten
miles per hour.
Doc. 26-1, Byrd Depo., p.
32.
The officer did
not fire when the decedent began driving towards him.
Id.
The Finish Line surveillance video, which does not contain audio, displays a
timeclock readout, the timing of which differs from the officer's lapel
video.
4
-5
The
officer
decedent
in
the
continued
left
leg
to
around
officer onto the
hood on the
Lapel
1:27:58-59;
Video
1:19:13.
at
drive
the
car.
forward
knee,
Id.
Doc.
at
which
33,
15 2,
and
99;
Finish
struck
the
knocked
the
Doc.
Line
21-1,
Video,
The car traveled forward while the officer was on the
hood of the car and his feet were off the ground.
Byrd Depo., p.
100.
26 -1,
The impact of the officer and the vehicle
cannot be clearly seen on the lapel
crash can be heard.
Doc.
camera video,
but a
loud
Doc. 21-1, Lapel Video, 1:27:58 59.
The officer came off the hood on the passenger side of the
vehicle with his pistol drawn while the decedent drove
the exit of the Finish Line parking lot.
toward
Doc. 26-1, Byrd Depo.,
p. 33; Doc. 21-1, Lapel Video at 1:27:58-1:28:00. within seconds
of landing on his feet,
the officer fired a single shot from his
already-drawn gun at the decedent through the passenger side of
the car.
Doc. 26-1, Byrd Depo., pp. 32-33.
The shot cannot be
heard on
either
video,
fired within a
1:27:58-1:28:02;
The
bullet
the
surveillance
four-second
Doc.
entered
15-2,
the
range.
Finish
decedent's
area and lodged in his chest.
or
lapel
but
it
was
Doc.
21-1,
Lapel Video at
Line
Video
at
right
shoulder,
1:19:11-15.
upper
back
Doc. 15-6, Autopsy Photos.
After he was shot, the decedent made a left-hand turn out of
the parking lot and proceeded southbound on Dixie Highway.
26-1, Byrd Depo., p. 36; Doc. 21-1, Lapel Video at 1:28:02.
-6
Doc.
The
officer radioed in what happened.
26-1,
Byrd Depo., p.
parking
lot
and
36.
drove
Then,
back
Doc.
21-1,
Lapel Video; Doc.
the decedent turned around in a
towards
the
Finish Line
where
officer was now standing in the middle of Dixie Highway.
the
DOC.
26 I, Byrd Depo., pp. 36-37.
When the car carne back towards the officer, the officer did
not
fire
his gun because the· car
slowed down and the officer
observed that the decedent was slumped over the steering wheel
and
appeared
ordered
the
to
be
inj ured.
decedent
to
accelerated northbound.
Id.
stop
the
at
37.
The
vehicle,
officer
but
the
again
decedent
at 37-38.
Id.
The decedent struck a utility pole at the next intersection
where
two
other
responding
impact.
Id.
at 38-39.
parking
lot,
picked
officers
arrived
shortly
after
The officer returned to the Finish Line
up
his
bicycle,
and
joined
the
other
officers at the decedent's car where the officers were waiting
for paramedics to arrive.
Elsmere
police
and
Id., Doc. 21 I, Lapel Video.
officers
responded
followed by emergency medical technicians.
to
Doc.
the
15-4,
scene,
EMS Run
Report.
The decedent died from exsanguination due to perforation of
his right lung from the gunshot wound to his chest.
Hamilton County Coroner's Report.
-7
Doc. 54 -I,
Plaintiffs Edward and Tina Godawa,
the decedent's parents,
opened an estate for their son and filed this action on August
13,
2012.
Doc.
I,
Complaint.
motion for leave to file
2012.
Docs.
17 -18,
The Court
granted Plaintiffs'
an amended complaint on December 27,.
Order and Amended Complaint.
On July 17,
2013,
Plaintiffs filed a premature motion for summary judgment
(Doc.
21),
which
the Court
denied
(Doc.
32).
Discovery then
ensued, and the motions now before the Court were fully briefed.
Analysis
1. Qualified Immunity
~In
§1983,
is]
order
[the
defendant]
to
be
held
it is the plaintiff/s burden to show that
not
entitled
Sheffey v.
2014
for
WL
to
the
protection
City of Covington,
1663063,
*4
(6th
April
28
1
under
[the defendant
qualified
Fed. App'x
---
Cir.
of
liable
---I
immunity./I
No.
2014).
12-5109,
The
Court
determines qualified immunity by application of two factors:
whether the action violated a constitutional righti
so,
whether
that
constitutional
right
was
and
(2)
(1)
if
clearly established
such that a reasonable officer would understand that what he is
doing would violate that right.
Id.
Trs. Of Green Twp., 583 F.3d 394, 400
(citing Morrison v. Ed.
Of
(6th Cir. 2009)).
A. No Constitutional Violation
To prove that an officer's use of
violation of the Fourth Amendment,
-8
force was excessive in
the plaintiff must show that
the
use
of
force
circumstances.
1865,
104
Ed.
reasonableness
of
individual's
objectively
Graham v.
L.
balancing
was
of
a
the
(1989).
particular
nature
and
Fourth
(internal
Determining
seizure
quality
Amendment
countervailing governmental
quotations
the
at
citations
the
a
reasonable
officer
is
on
vision of hindsight.'
analyzed
stake."
the
scene,
to make
circumstances that are tense,
the
amount
situation. '"
2020,
L.
of
force
plumhoff v.
Ed.
The
2d
that
82
to
"the
poses
others,
an
crime
immediate
threat
he
Id.
with
'of
the
a
20/20
in
in
a
particular
134 S. Ct. 2012,
-- U.S.
(May
27,
2014)
(citing
the courts pay special attention
the
whether
inquiry
In assessing the reasonableness
severity of
and
396
and rapidly evolving
necessary
USLW 4394
of a particular use of force,
at
split-second judgments -
is
Rickard,
the
perspective
than
the
for the fact that police
uncertain,
4 9 0 U. S . at 3 96 - 3 9 7 )
Graham,
rather
We thus 'allo[w]
officers are often forced
about
the
on
Id.
omitted).
"from
careful
against
requires analyzing the totality of the circumstances.
Reasonableness
obj ective
intrusion
interests
the
109 S. Ct.
"requires
of
interests
and
under
490 U.S. 386, 399,
Connor,
2d 443
unreasonable
at
issue,
whether
the
to
the
safety
of
officers
or
is
actively
arrest
or
attempting to evade arrest by flight."
-9
the
resisting
Graham,
suspect
490 U.S. at 396.
Consistent with Supreme Court and Sixth Circuit precedent,
Officer
Byrd did
not
violate
the
decedent's
Fourth Amendment
rights in this case.
The
evidence
officer
establishes
suspected
officer's
driving
was
bicycle,
while
intoxicated,
nearly
ignoring
commands to stop.
that
the
officer's
The decedent
decedent,
backed
hitting
the
the
whom
the
the
his
car
over
officer,
and
continued
drawn
then drove
gun
and
repeated
into the officer,
using the vehicle as a weapon to strike the officer and knock
him up and over the hood of his
flight by driving forward.
this
vehicular
judgment,
assault,
car,
and then continued his
Within approximately four seconds of
in
what
was
clearly
a
split-second
the officer fired a single shot at the decedent,
the driver continued to flee the scene.
1:27:58-1:28:02.
The
entire
and
Doc. 21-1, Lapel Video,
incident,
from
the
time
the
decedent started his car to the time the decedent pulled his car
out
onto
the
busy
twenty seconds.
highway,
lasted
only
between
fifteen
and
Id. at 1:27:44-1:28:02.
The severity of the crime inquiry is one of totality of the
circumstances,
and,
in this case,
insignificant crime.
fired,
Rather,
at
does not involve a minor or
the
time the
fatal
shot was
the officer had probable cause to believe the decedent
committed a
number of violent and serious offenses,
attempted murder,
first-degree
assault,
-10
including
wanton endangerment
in
the first degree,
See Sheffey,
*6
(6th
---
Cir.
and fleeing and evading in the first degree.
Fed. App'x ---,
April
28,
No.
2014)
permit)
F.3d
charge
see
i
150,
also
156
of
Hocker
(6th
misdemeanor that
carrying
v.
Cir.
2014 WL 1663063,
(circumstances
significantly more severe than usual
misdemeanor
12 5109,
a
a
risk
in an investigation of a
concealed
Pikeville
2013)
created
firearm
City
Police
(considering
without
Dep't,
738
only
the
felonies
the
not
justified the stop but also the
a
suspect incurred as a result of his flight from police) .
The
evidence also demonstrates
the
officer had reason to
believe that both his life and the safety of the public at large
were at risk.
The officer fired within seconds of being struck
by the decedent's car and when within feet of the still-moving
vehicle;
thus,
the risk to the officer had not subsided at the
time the officer fired the shot.
7, 33.
See Doc.
Rather, as in Hocker, the officer had a reasonable basis
for assuming the decedent was not
weapon at
Williams
(6th
the
v.
r.
immediately
time he
posed a
fired his
City of Grosse
2007)
(approving
following
suspect's attempt to f
In
26-1, Byrd Depo., pp.
addition,
the
a
Pointe
an
of
vehicular
finished using his car as a
shot.
Park,
738
F.3d at
496
F.3d 482,
cer's
use
assault
of
156;
487-488
deadly
occurring
see
force
during
a
).
record
demonstrates
threat to the public at large.
-11
that
the
decedent
The decedent's flight
occurred
in
a
surveillance
standing
bar
parking
video
near
lot
confirms
the
bar
during
that
entrance
business
hours.
at
least
four
in
close
proximity
The
people
were
to
the
decedent's vehicle in the two minutes before the flight began.
Doc. 15-2, Finish Line Video, 1:17:30-1:19:12.
attempting to flee onto a busy U.S. Highway,
to pose a
serious
Rickard, No.
Plumhoff v.
2022,
risk of harm to
L.
shots
fifteen
at
82
a
USLW
fleeing
where he continued
the motoring public.
u.s.
12-1117,
Ed. 2d
The decedent was
4394
suspect
134 S. Ct.
(May
was
27,
2014)
reasonable
See
2012,
(firing
where
the
suspect posed a grave risk to public safety after engaging in a
high
speed
Harris,
chase
and
550 U.S. 372,
(police officer I s
colliding with a
police
car)
Scott
i
127 S. Ct. 1769, 167 L. Ed. 2d 686
attempt
to
terminate
a
dangerous
v.
(2007)
high-speed
car chase that threatened the lives of innocent bystanders did
not
violate
the
Fourth
Amendment,
even
when
it
placed
fleeing motorist at risk of serious injury or death)
496
F.3d
at
knocked
a
danger,
and
487
(use
sergeant
the
of
to
force
the
attempt
reasonable
ground,
to
escape
where
i
him
posed
threat
a
williams,
the
putting
in
the
suspect
immediate
to
anyone
within the vicinity) .
Lastly,
it
is
undisputed
that
the
decedent
was
resisting arrest when the officer used deadly force.
Pl. Response Brief, p. 15.
actively
DoC.
54,
The decedent's conduct made it clear
-12
he
was
evading
the
officer's
fleeing an arrest.
ignored
nine
exercise
See Williams,
commands
to
of
police authority by
496 F.3d at 487.
stop,
struck
bicycle and nearly hit the officer
the
The decedent
police
officer1s
and then struck the police
l
officer with total disregard for his authority and safety.
Thus
the
weighing all of the Graham factors
I
situation
officer s
without
the
benefit
of
and considering
I
20/20
hindsight
use of force was objectively reasonable.
l
the
I
Plaintiffs
have failed to prove that the Defendant violated the decedent/s
right to be free from excessive force.
B. No Violation of a Clearly Established Right
Even if the officer had used excessive force in violation
of the Fourth Amendment
For
that
the
sake
the
of
I
he is entitled to qualified immunity.
completeness
officer
used
I
the
excessive
Court
will
force
in
assume
violation
arguendo
of
the
decedent1s Fourth Amendment rights sufficient to advance to the
qualified immunity analysis.
The officer cannot be said to have violated the decedent1s
clearly
established
sufficiently
defendant's
it.1I
definite
"'existing
"unless
that
any
shoes would have
Plumhoff
131 S. Ct.
right
2074
I
2083 - 2084
precedent
I
must
right/s
reasonable
-13
were
in
the
he was violating
(citing Ashcroft v. al-Kidd
179 L. Ed.
have
contours
official
understood that
134 S. Ct. at 2023
l
the
2 d 1149
placed
the
(2011))
Thus
statutory
l
I
or
constitutional
debate. ' "
question'
Id.
In
confronted
addition,
by
law
the
the
official
must
be
'beyond
sufficiently
specific to the facts alleged and not defined at a
-high level
of generality" as "doing so avoids the crucial question whether
the
official
that
he or
acted
she
reasonably
faced."
Id.
in
the
particular
(citing Ashcroft,
circumstances
131 S.
Ct.
at
2074).
Plaintiffs are unable to meet their burden to show that the
officer was not entitled to use deadly force, because as of June
23,
2012,
there
was
no
binding
officer's use of deadly force
precedent
following a
that
precluded
an
physical assault on
the officer while the suspect is actively fleeing from arrest.
Rather,
relevant
authority
In Plumhoff,
force was justified.
that,
establ ishes
a
fleeing
of
such
the officer was entitled to
qualified immunity for his use of force.
Plumhoff,
use
the Supreme Court determined
in an analogous circumstance,
In
that
suspect
134 S. Ct. at 2024.
and
his
passenger
led
officers on a high speed car chase that came to a temporary halt
when the suspect spun out in a parking lot and made contact with
the officers' cruiser.
Id. at 2017.
The suspect maneuvered his
car and continued to use the accelerator even though his bumper
was
flush against a
patrol car.
Id.
An
officer fired three
shots into the car and the driver drove away, almost hitting an
officer in the process.
Id.
Officers then fired twelve more
-14
shots as the driver sped away,
both of
whom died.
striking him and his passenger,
at
Id.
2018.
The Court
found
that
the
officers did not violate clearly established law in ending the
chase with deadly force.
Similarly,
S.
Ct.
596,
authority by
Id. at 2022.
in Brousseau v.
160
the
L.
Ed.
2d
Plumhoff
543 U. S.
Haugen,
583
(2004),
Court,
an
cited
officer
194,
as
did
197,
125
controlling
not
violate
clearly established law when she fired at a fleeing vehicle to
prevent possible harm to other officers on foot in the immediate
area,
occupied
vehicles
in
the
suspect's
path,
and
other
citizens in the area.
Plaintiffs have failed to meaningfully distinguish Plumhoff
and Brosseau from the facts of this case.
In the view of this
Court, Plumhoff controls the result of this case.
Plumhoff held
that, as of July 18, 2004, an officer was entitled to qualified
immunity from an excessive force claim where he fired his pistol
into a car, the driver of which was attempting to escape from a
parking lot onto a public highway.
following
statement
by
the
134 S.
Supreme
Court
Ct .
is
at 2024.
particularly
relevant:
Thus
the record concl usively disproves respondent' s
claim that the chase in the present case was already
over when petitioners began shooting.
Under the
circumstances at the moment when the shots were fired,
all that a reasonable police officer could have
concluded was that Rickard was intent on resuming his
flight and that, if he was allowed to do so, he would
I
-15
The
once again pose a deadly threat for others on the
road.
Rickard's conduct even after the shots were
fired - as noted, he managed to drive away despite the
efforts of the police to block his path - underscores
the point.
Id. at 2021-2022.
Although Plaintiffs have attempted to distinguish Plumhoff
by pointing out that the shooting there followed a 100 mile-per
hour
chase
on
the
highway,
the
fatal
shooting
actually
took
place in a parking lot when the subject car was at a standstill.
Id. at 2021.
If it was the law in 2004 that excessive force was
could
justified to protect the public in such circumstances,
not
have been obvious
would
violate
to
Godawa's
Officer Byrd
constitutional
that
what
he
In
rights.
did here
fact,
the
contrary is the more likely conclusion.
2. Fourteenth Amendment Due Process Claim
Summary judgment in favor of the officer on the Plaintiffs'
Fourteenth
plaintiffs'
Amendment
due
allegation
process
that
the
claim
is
decedent's
also
due
appropriate.
process
rights
were violated is a reiteration of their Fourth Amendment claim.
Claims for excessive use of force upon arrestees must be pursued
and analyzed only under the Fourth Amendment.
490 U.S.
386,
395,109 S.
{holding
that
"all
used
excessive
arrest,
claims
force
Ct.
1865,104 L.
that
deadl y
law
or
Graham v.
Ed.
enforcement
not
in
the
Connor,
2d 443
officers
course
(1989)
have
of
an
investigatory stop, or other 'seizure' of a free citizen
-16
should
be
analyzed
'reasonableness'
process'
under
standard,
approach.").
the
Fourth
Amendmen t
rather than under a
Thus,
summary judgment
and
its
'substantive due
in favor of the
officer on Plaintiffs' due process claim is appropriate.
3. laintiff's Remaining State Law claims
P
Plaintiffs
concede
they
are
consortium claim for their son,
of death.
Judgment,
Doc.
p.
54,
to
bring
a
Comair,
Summary
Inc.,
judgment
of
who was twenty-one at the time
type
of
claim
is
limited
to
children under the express language of KRS §411.135.
V.
loss
Response to Defendant' sMotion for Summary
This
1.
unable
556
for
F.
Supp.
the
2d
officer
665,
on
673
this
See Combs
(E.D.
claim
"minor"
Ky.
is
2008).
therefore
appropriate.
The
Court
declines
jurisdiction over Plaintiffs'
to
exercise
its
supplemental
remaining state law claims,
since
the law of state immunity differs from that of federal immunity.
See 28 U.S.C.
§1367.
4. efendant's Motion to Strike the Report and Testimony of
D
Spicer
Defendant's motion to strike
proffered
expert,
J.
Scot t
the
Spicer,
testifying at trial is moot.
-17
report
and
and testimony of
prevent
him
from
Therefore, the Court having heard from the parties, and being
sufficiently advised,
IT IS ORDERED:
(1)
Plaintiffs' motion for summary judgment
(Doc. 47)
be, and hereby is, DENIED;
(2)
be,
Defendant's motion for summary judgment
and hereby is,
GRANTED
in
part
motion is GRANTED as to Plaintiffs'
loss
of
consortium
Plaintiffs'
remaining
claim.
state
The
law
and DENIED
in
(Doc. 48)
The
part.
federal claims and state law
motion
claims,
is
but
as
to
claims
are
GRANTED
these
dismissed without prejudice.
(3)
and
testimony
Defendant's motion to strike the expert's report
and
pr~clude
his
trial
testimony
(Doc.
49)
is
DENIED AS MOOT; and
(4)
A
separate
judgment
will
enter
concurrently
The Honorable William
o. Bertelsman
herewith.
This 1st day of August, 2014.
United States District Judge
-lS
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?