Khottavongsa v. City of Brooklyn Center et al

Filing 84

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that: 1. Defendants' Motion for Summary Judgment 36 is GRANTED in part and DENIED in part; 2. Defendants' Motion to Exclude Expert Testimony 40 is DENIED; 3. Plaintiff's Motion to Exclude Testimony of Dr. Uzma Samadani 45 is DENIED; 4. Plaintiff's Motion to Exclude Testimony of Michael Brave 53 is DENIED; and 5. Plaintiff's Motion to Exclude Testimony of Dr. Mark Kroll 59 is GRANTED in part and DENIED in part. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 08/30/2017. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kevin Khottavongsa, as trustee
for the heirs and next-of-kin of
Sinthanouxay Khottavongsa,

Case No. 16-cv-1031 (RHK/DTS)

Plaintiff,
v.

MEMORANDUM AND ORDER

City of Brooklyn Center; Alan
Salvosa, Police Officer, acting in
his individual capacity as City of
Brooklyn Center police officer;
Cody Turner, Police Officer, acting
in his individual capacity as City of
Brooklyn Center police officer; and
Gregg Nordby, Police Officer, acting in
his individual capacity as City of
Brooklyn Center police officer,
Defendants.
__________________________________________________________
This matter is before the Court on Defendants’ Motion for Summary Judgment
and to Exclude Expert Witnesses, and Plaintiff’s Motion to Exclude Expert Witnesses.
For the following reasons, the Motion for Summary Judgment is granted in part and
denied in part, and the Motions to Exclude are granted in part and denied in part.
BACKGROUND
On the night of January 16, 2015, Sinthanouxay Khottavongsa, a 57-year-old
Laotian immigrant, was visiting the auto-repair shop owned by the parents of his friend,
Leang Sarin, in Brooklyn Center. (Hively Aff. (Docket No. 38) Ex. 2 (Sarin Dep.) at 9.)
The shop was attached to a laundromat, Coin Laundry, also owned by Mr. Sarin’s

parents.

While Mr. Khottavongsa was in the repair shop, three African-American

individuals entered the Coin Laundry. Ms. Taing Hong, the owner of the laundromat,
told them that it was closing time and asked them to leave. (Hively Aff. Ex. 3 (Hong
Dep.) at 5-6.)
The individuals ostensibly made inappropriate comments to Ms. Hong. (Id. at 5;
see also Hively Aff. Ex. 8 (Cruz-Martinez Dep.) at 9.)

Mr. Sarin got involved,

attempting to lock the door to prevent the individuals from re-entering the laundromat.
(Sarin Dep. at 10-11.) The individuals then dragged Mr. Sarin from the laundromat and
started physically fighting with him. (Id. at 12) Ms. Hong sprayed mace in the face of
one of the individuals. (Hong Dep. at 9, 11.) Her husband, Kear Som, grabbed a baseball
bat. (Hively Aff. Ex. 4 (Som Dep.) at 41.) Mr. Khottavongsa was involved in the
altercation as well, with one witness reporting that he fell to the ground and was kicked
and punched. (Hively Aff Ex. 8 (Cruz-Martinez Dep.) at 14, 17-18.) Eventually, Mr.
Khottavongsa went back into the repair shop and emerged with a crowbar. (Som Dep. at
19.)
Several individuals called 9-1-1 to report the melee. (E.g., Cruz-Martinez Dep. at
14-15.) At least one reported that someone in the fight had a bat. (Id. at 14) Defendant
Officer Alan Salvosa and a cadet trainee, Jose Nochez, were the first police officers to
arrive on the scene, although they did not activate their police cruiser’s lights or siren.
(Rissman Decl. (Docket No. 74) Ex. N (Salvosa dashcam video).) They parked some
distance away and thus the cruiser’s dashcam video did not capture the events; audio
from the dashcam did record the sound of what happened. According to Plaintiff, by the
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time the police arrived, the fight was over and many of the participants had fled. (Sarin
Dep. at 32-34.) Shortly after Salvosa and Nochez arrived, Defendants Officers Gregg
Nordby and Cody Turner, as well as other officers not named as Defendants here, arrived
on the scene. The other cruisers’ dashcams recorded the events.
Officer Salvosa ran to the area of the fight and commanded everyone to get down
on the ground. (Hively Aff. Ex. 10 (Salvosa Dep.) at 64.) The parties vigorously dispute
Mr. Khottavongsa’s English proficiency; Plaintiff contends that he spoke only broken
English, while Defendants say that he spoke enough English to understand the officer’s
commands. When Salvosa arrived, Mr. Khottavongsa had his back turned to him and
was holding the crowbar. Salvosa yelled at Mr. Khottavongsa to “drop it drop it drop it.”
(Rissman Decl. Ex. N (Salvosa dashcam video) at 9:16:26.) Mr. Khottavongsa began to
turn his head to look at Salvosa, and Salvosa tased him. (Id. at 9:16:30; Salvosa Dep. at
73.) Mr. Khottavongsa’s body tensed and he fell to the ground, striking the back of his
head against the pavement. (Salvosa dashcam video at 9:16:30.)
Mr. Khottavongsa then lay on the ground, still holding the crowbar. Mr. Sarin
tried to come to his aid but the police ordered him to the ground. Officer Turner took the
crowbar out of Mr. Khottavongsa’s grasp. (Hively Aff. Ex. 11 (Turner Dep.) at 69-70.)
The officers apparently recognized that Mr. Khottavongsa was not able to understand
what they were saying; Officer Turner can be heard commenting that Mr. Khottavongsa
did not understand, later telling the other officers, “I don’t think he speaks English.”
(Rissman Decl. Ex. J (Turner dashcam video) at 21:17.37.)

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Officer Turner yelled to the group to “lay flat on your stomach!” (Id. at 21:14:1517.) Mr. Khottavongsa, who had been lying on his back, then began moving very slowly.
(Id. at 21:17:23.)

Officer Salvosa tased him again, causing Mr. Khottavongsa to fall

back, again striking his head on the pavement. (Id. at 21:17:24.) The officers again
ordered him to roll to his stomach, and when he did not immediately comply, they began
to push or kick him with their feet, trying to roll him over. (Id. at 21:18:04).
Turner and Nordby eventually handcuffed Mr. Khottavongsa and ordered him to
stand. He was unable to do so, and they dragged him to a cruiser. (Id. at 21:19:32.) Mr.
Khottavongsa can be heard moaning loudly and constantly throughout this encounter.
The officers put Mr. Khottavongsa in the back of the cruiser and he slumped over, falling
forward to the floor of the car. (Id. at 21:20:16.) After several minutes, the officers
pulled him out of the car and left him on the ground, face down. Eventually, the officers
called an ambulance. (Hively Aff. Ex. 5 (Nordby Dep.) at 180-81.) The ambulance
transported Mr. Khottavongsa to the hospital, but physicians there were unable to revive
him. He was in a coma for two days and eventually removed from life support. (Id. Ex.
1 (K. Khottavongsa Dep. at 9, 12.)
Plaintiff Kevin Khottavongsa is Mr. Khottavongsa’s son and the trustee of his
estate. The Complaint (Docket No. 1) raises a § 1983 claim for excessive force and
deliberate indifference to serious medical needs against the three officers, 1 a § 1983

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Plaintiff’s Opposition Memorandum states that Plaintiff is also raising a failure-tointervene claim against Officers Turner and Nordby for their failure to keep Officer
Salvosa from tasing Mr. Khottavongsa a second time. The Complaint does not mention
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failure-to-train and unconstitutional policies and practices claim against the City of
Brooklyn Center, and a state-law wrongful death claim against all Defendants.
DISCUSSION
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna
Bank, 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing
that there is no genuine issue of material fact and that it is entitled to judgment as a matter
of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly
supported motion for summary judgment may not rest on mere allegations or denials, but
must set forth specific facts in the record showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
1.

Qualified Immunity

Defendants contend that the officers are entitled to qualified immunity on the
§ 1983 claim.

Qualified immunity protects police officers from suit unless “their

conduct . . . violate[s] clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
To evaluate whether an officer is entitled to qualified immunity, the Court must
determine whether the facts alleged “make out a violation of a constitutional right.”
any failure to intervene as part of the § 1983 claim against the officers, and the Court will
not consider this claim.
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Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court must also determine whether
the right at issue was “clearly established” at the time of the alleged misconduct. Saucier
v. Katz, 533 U.S. 194, 201 (2001). Thus, a police officer is “entitled to summary
judgment based on qualified immunity unless (1) the evidence, viewed in the light most
favorable to the nonmoving party, establishes a violation of a federal constitutional or
statutory right, and (2) the right was clearly established at the time of the violation.”
Capps v. Olson, 780 F.3d 879, 884 (8th Cir. 2015).
Plaintiff’s § 1983 claim against the officers rests on two grounds.

First, he

contends that the officers used excessive force on Mr. Khottavongsa. Second, he claims
that the officers were deliberately indifferent to Mr. Khottavongsa’s serious medical
needs. Defendants first ask the Court to determine that the uses of force here were
reasonable as a matter of law.
But there are too many factual disputes in the record to allow the Court to make
this determination. There are questions as to whether Officer Salvosa deployed his taser
too quickly, and indeed whether the use of a taser was necessary at all. There is a
question whether the officers knew or should have known that Mr. Khottavongsa had
limited English proficiency and thus might not have understood their commands. There
are questions regarding whether the officers recognized or should have recognized the
extent of his injuries after the first tasing or the second tasing. There are questions
regarding the amount of force the officers used to handcuff Mr. Khottavongsa and
whether moving him in and out of the police car was warranted considering his injuries.
There are questions as to whether the officers recognized the extent of his injuries but
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ignored those injuries. Testimony from the officers at the scene and from eyewitnesses
paints no clear picture on any of these issues. Moreover, the video and audio of the scene
show officers using force against an immobilized individual who appears to be in great
distress. The record is replete with factual disputes. Thus, the Court cannot say that any
of the uses of force were objectively reasonable as a matter of law.
Similarly, there are fact questions as to whether the officers knew and disregarded
Mr. Khottavongsa’s serious medical needs. A claim for deliberate indifference to serious
medical needs requires establishing that there was a substantial risk of serious harm and
that the defendant was deliberately indifferent to that risk. Letterman v. Does, 789 F.3d
856, 861 (8th Cir. 2015). There is no dispute that Mr. Khottavongsa was seriously
injured and that he needed medical attention. The question here is whether Defendants
knew of and disregarded his need for medical treatment. Farmer v. Brennan, 511 U.S.
825, 837 (1994). The Court “can infer knowledge if the risk was obvious.” Letterman,
789 F.3d at 862. Deliberate indifference requires more than mere negligence, but less
than willfulness or maliciousness; the “inquiry must show a mental state akin to criminal
recklessness.” Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006). “[T]he obvious
inadequacy of a response . . . may support an inference that the officer recognized the
inappropriateness of his conduct.” Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir.
2009).
Defendants argue that Mr. Khottavongsa’s injuries were not obvious, but there are
facts in dispute about this component of a deliberate-indifference claim.

There is

testimony that Mr. Khottavongsa hit his head extremely hard after the first tasing, with a
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terrible sound audible on the dashcam videos. Mr. Khottavongsa was groaning loudly
enough to be heard on the audio recording above the din of the scene. Some witnesses
described him as obviously disoriented. Whether this is enough to establish that his
injuries were objectively obvious is something a jury must determine.
Moreover, there are factual disputes as to whether the officers knew of the risk
that Mr. Khottavongsa was seriously injured and deliberately disregarded that risk. The
officers testified that they thought Mr. Khottavongsa was faking it, or that he was being a
“drama queen,” or that he was intoxicated. But they saw him fall and heard the sound of
his head hitting the pavement. A reasonable jury could conclude from these facts that the
officers knew of his injuries and disregarded them. Summary judgment is inappropriate
on the individual Defendants’ qualified immunity.
2.

Monell

Plaintiff seeks to hold the City of Brooklyn Park liable for the officers’ alleged
unconstitutional conduct.

A government entity may be vicariously liable for the

unconstitutional actions of individual police officers only if a municipal custom or policy
is the “moving force [behind] the constitutional violation.”

Monell v. Dep’t of Social

Servs., 436 U.S. 658, 694 (1978).
Defendants’ only argument on the Monell claim is that there is no underlying
constitutional violation. But there are fact questions as to the existence of a constitutional
violation, and thus Defendants have not established that the Monell claim is amenable to
summary judgment.

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3.

Wrongful Death

Defendants contend that they are entitled to official immunity on the state-law
wrongful death claim. Because there can be no dispute that police officers acting in the
scope of their duties are undertaking discretionary actions, to hold the officers liable for a
state-law tort, Plaintiff must establish that the officers’ actions constituted a “willful or
malicious wrong.” Elwood v. Rice Cty., 423 N.W.2d 671, 677 (Minn. 1988).
Plaintiff’s opposition memorandum does not thoroughly address this issue, stating
only that the facts establish that the officers acted willfully and maliciously. But the bar
to overcome official immunity for state torts is very high. Plaintiff must establish that the
officers “so unreasonably put at risk the safety and welfare of others that as a matter of
law it could not be excused or justified.” Kari v. City of Maplewood, 582 N.W.2d 921,
924 (Minn. 1998).

The officers’ conduct here might constitute recklessness, but a

reasonable jury could not conclude that the officers were willful or malicious. Summary
judgment is appropriate on the wrongful death claim.
B.

Motions to Exclude Expert Witnesses
The Supreme Court has assigned district courts with the role of “gatekeeper” to

ensure that only relevant and reliable expert testimony is admitted under Fed. R. Evid.
702. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). To determine
reliability, the Court should examine (1) whether the theory or technique can be and has
been tested, (2) whether it has been subjected to peer review and publication, (3) the
known rate of potential error, and (4) whether the theory or technique has been generally
accepted. Id. at 592-95.
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But “the factual basis of an expert opinion goes to the credibility of the testimony,
not the admissibility, and it is up to the opposing party to examine the factual basis for
the opinion in cross-examination.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th
Cir. 2001) (citation and quotation omitted). The Court should exclude an expert witness
“[o]nly if the expert’s opinion is so fundamentally unsupported that it can offer no
assistance to the jury.” Id. at 929-30.
1.

Defendants’ Motion

Defendants have moved to exclude two of Plaintiff’s expert witnesses: Charles
W. Drago, a police-practices and use-of-force expert, and Dr. Robert A. Beatty, a
neurologist.
a.

Drago

According to Defendants, Drago’s testimony should be excluded because he
opines that the Defendant police officers acted unreasonably, thus invading the province
of the jury regarding the ultimate legal issue in this case. But Drago in fact states that the
officers’ conduct is unreasonable in light of accepted police practices. While Drago
cannot tell the jury that a particular use of force was unreasonable, he can certainly
express his opinion as to whether that use of force comported with accepted police
practices and training without couching his opinion in “reasonableness” terms. Should he
stray into offering testimony on ultimate legal issues, Defendants may object to that
testimony.

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b.

Dr. Beatty

Defendants first argue that Dr. Beatty is unqualified to testify regarding the brain
injury the decedent suffered because his practice focused on spinal injuries. But if Dr.
Beatty has no expertise with brain injuries, then Defendants’ cross-examination can
expose that weakness.

And Defendants overstate Dr. Beatty’s alleged lack of

qualifications in any event. He has experience with brain neurology and he is therefore
qualified to testify.
Defendants also take issue with Dr. Beatty’s “differential diagnosis.” Dr. Beatty
considered all plausible causes of the decedent’s injury and then ruled out the least
plausible causes until the one that remained is, in his opinion, the most likely cause of
Mr. Khottavongsa’s injury and death.

Defendants contend that Dr. Beatty did not

consider that Mr. Khottavongsa might have suffered a head injury during the fracas
before police arrived. But this is not a reason to exclude Dr. Beatty’s testimony; rather it
is fodder for cross-examination. The Motion to Exclude Dr. Beatty is denied.
2.

Plaintiff’s Motions

Plaintiff has moved to exclude three of Defendants’ expert witnesses: use-of-force
expert Michael Brave, Dr. Mark Kroll, and Dr. Uzma Samadani.
a.

Brave

Plaintiff contends that Brave’s opinions are unsupported by specific facts in the
record, and that he offers inadmissible legal conclusions as to the reasonableness of the
force used.

As with Defendants’ Motion to exclude Plaintiff’s use-of-force expert,

however, most of the deficiencies Plaintiff notes go to the weight the jury should give
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Brave’s testimony, not its admissibility. And to the extent that Brave opines as to the
ultimate legal conclusion in this case, Plaintiff can object to that testimony at trial. This
Motion is denied.
b.

Dr. Samadani

Dr. Samadani opines that Mr. Khottavongsa’s brain injury occurred before he was
tased, and that he likely would have died from that injury even absent the further blows to
the head he suffered as a result of and after the tasings. She contends that the fatal injury
was a blow to the front of Mr. Khottavongsa’s head, whereas the tasings resulted in him
falling on the back of his head. Plaintiff contends that there is no evidence that Mr.
Khottavongsa suffered any blows to the head before he fell to the ground after being
tased. According to Plaintiff, no eyewitness testified to seeing him being hit in the head,
and the autopsy report states that he died “from striking his head after being subdued by a
taser.”
But the scene before the police arrived was chaotic, and at least one witness
reported that Mr. Khottavongsa was knocked to the ground during the fight and was
kicked and punched while on the ground. Thus, it is possible that the evidence will show
that he suffered a blow to the head before the tasings. This factual dispute is a matter for
the jury to determine. Plaintiff can cross-examine Dr. Samadani about the bases for her
opinion and challenge her conclusions, but her opinion is not excludable. This Motion is
denied.

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c.

Dr. Kroll

Dr. Kroll is not a medical doctor, but rather a biomedical scientist specializing in
the interaction of electricity and the body. Plaintiff challenges two of his opinions: that
the second tasing and fall to the ground did not cause Mr. Khottavongsa any further
injury, and that the use of the taser was the safest option available to the police officers.
Dr. Kroll is the author of a published and peer-reviewed report on fatal head
injuries resulting from a taser. He uses a methodology called Head Impact Criterion
(HIC) to determine that the impact from second tasing would not have caused the
decedent’s fatal injuries. Although Plaintiff believes that Dr. Kroll’s use of the HIC here
is faulty, that challenge goes to the weight to be afforded Dr. Kroll’s testimony and not its
reliability. Certainly, although not a medical doctor, Dr. Kroll is qualified to testify about
how a fall causes a skull fracture and the forces required to cause the injuries at issue. If
Dr. Kroll failed to take into account Mr. Khottavongsa’s first fall, which was from a
much greater height and likely caused greater head trauma, or the cumulative effects of
the two falls together, then this is a matter for cross-examination.
Plaintiff also contends that Dr. Kroll’s “supplemental” report should be excluded
because it offers new opinions and changes wholesale some of the opinions in Dr. Kroll’s
original report.

If the supplemental report requires exploration in a supplemental

deposition, Defendants should make Dr. Kroll available for such a deposition. Should
that deposition reveal that Dr. Kroll’s new opinions are unreliable or unhelpful to the
jury, Plaintiff can move in limine to exclude those opinions.

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However, Dr. Kroll is not qualified to offer opinions on the force options available
to the police officers who responded to the scene here. Nor can he testify that the use of
the taser was the “safest” option the police had. That is simply beyond his expertise.
Plaintiff’s Motion regarding Dr. Kroll is therefore granted in part and denied in part.
CONCLUSION
Factual disputes prevent the entry of summary judgment on whether qualified
immunity protects Defendants from Plaintiff’s § 1983 claims, and whether the City can
be liable for the individual Defendants’ conduct under Monell. Plaintiff’s wrongful-death
claim fails as a matter of law, however. And most of the challenges to expert witnesses
are more appropriately raised in objections at trial.

Accordingly, IT IS HEREBY

ORDERED that:
1.

Defendants’ Motion for Summary Judgment (Docket No. 36) is
GRANTED in part and DENIED in part;

2.

Defendants’ Motion to Exclude Expert Testimony (Docket No. 40) is
DENIED;

3.

Plaintiff’s Motion to Exclude Testimony of Dr. Uzma Samadani (Docket
No. 45) is DENIED;

4.

Plaintiff’s Motion to Exclude Testimony of Michael Brave (Docket No. 53)
is DENIED; and

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5.

Plaintiff’s Motion to Exclude Testimony of Dr. Mark Kroll (Docket No.
59) is GRANTED in part and DENIED in part.

Dated: August 30, 2017

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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