The Estate of Mauricio Jaquez v. The City of New York et al

Filing 234

OPINION & ORDER. For the reasons stated above, defendants' motion for summary judgment is GRANTED as to plaintiffs' wrongful death claim, and DENIED as to the rest of the case. This ruling also requires the preclusion of damages related evidence based on death; the parties should plan their presentations accordingly. (As further set forth in this Order) (Signed by Judge Katherine B. Forrest on 3/30/2016) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
THE ESTATE OF MAURICIO JAQUEZ, :
by The Public Administrator of Bronx
:
County as administrator of the Good,
:
Chattels and Credit of the deceased
:
Mauricio Jaquez, and ANA MARTINEZ, :
:
Plaintiffs,
:
:
-v:
:
SERGEANT WILLIAM FLORES, Shield :
No. 1023,
:
:
Defendant.
:
------------------------------------------------------------ X
KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 30, 2016

10 Civ. 2881 (KBF)
OPINION & ORDER

In connection with a number of in limine rulings issued on March 17, 2016,
the Court questioned whether there is sufficient evidence to support a triable issue
on whether the single gunshot wound that is the subject of this trial was a
substantial contributing factor in the death of Mauricio Jaquez. (ECF No. 218.)
The resolution of this question impacts a substantial quantum of evidence that will
either be part of, or excluded from, the parties’ trial presentations. The Court
invited defendant to file a motion for summary judgment on this issue; that motion
is now fully briefed. (ECF Nos. 226, 229.)
For the reasons stated below, plaintiffs have failed to submit the minimum
evidence necessary to support a triable issue on this question. This determination
necessitates dismissal of plaintiffs’ wrongful death claim as well as preclusion of
evidence regarding damages proximately related to death.

I.

BACKGROUND
This case concerns the fatal shooting of an emotionally disturbed person,

Mauricio Jaquez, by several New York City Police Department officers, including
the remaining defendant, Sergeant William Flores. On April 12, 2009, NYPD
officers responded to a 911 call from Mr. Jaquez’s home. The subsequent encounter
escalated into a struggle, during which Mr. Jaquez repeatedly threatened the
officers with a knife. During what was by all accounts a chaotic melee, the team of
officers used multiple rounds of Tasers, rubber bullets, and finally live ammunition
against Mr. Jaquez. He was shot several times in the torso. The final bullet
entered the back of his head. Ultimately, he was killed.
Plaintiffs brought an action asserting claims for, inter alia, the use of
excessive force in violation of the United States Constitution under 42 U.S.C. §
1983, assault and battery under New York State tort law, and wrongful death
under New York State tort law. (ECF No. 72 at 7-18.)
On May 8, 2015, the Court granted summary judgment to all defendants
other than Sgt. Flores, and granted it to Sgt. Flores “with respect to claims based on
the use of non-lethal force and the use of lethal force preceding the final bullet,” but
denied it “with respect to the final use of lethal force.” (ECF No. 169 at 46.) The
Court specifically denied summary judgment to Sgt. Flores on the wrongful death
claim, but only analyzed whether there was a triable issue of fact as to whether the
record supported a finding that he had committed a wrongful act, neglect, or
default; the opinion did not analyze causation. (Id. at 45.)

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As trial neared, two significant – and related – disputes about the scope of
the trial arose. The first turned on whether which wound the final bullet caused
was still in dispute. The Court surveyed the record and the parties’ binding
positions throughout the history of this litigation and concluded that there was no
triable issue on the question of whether the final bullet caused what has come to be
known as “wound A.” (ECF No. 218 at 3-8.) The bullet that caused this final injury
“entered Mr. Jaquez’s body behind the right ear, traveled directly downward,
slightly right to left through the muscle of his neck, fractured part of his cervical
spine, and lodged itself on the right side of his thoracic spine.” (Id. at 4 (internal
quotation marks omitted).)
The second dispute over the scope of trial followed from the resolution of the
first: given that the final bullet caused wound A, rather than one of the other
wounds to Mr. Jaquez’s torso, was there “sufficient evidence from which a jury could
rationally conclude that [defendant’s actions] were a substantial factor in causing
the death of the decedent,” or was the defendant entitled to summary judgment on
the wrongful death claim? (Id. at 9 (quoting Marus v. Vil. Med., 858 N.Y.S.2d 735,
737 (App. Div. 2008)).) The Court requested briefing on this question, which the
parties subsequently provided. (ECF Nos. 226 & 229.)
II.

LEGAL PRINCIPLES
A.

Summary Judgment Standard

Summary judgment may not be granted unless a movant shows, based on
admissible evidence in the record, “that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating “the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
On summary judgment, the Court must “construe all evidence in the light most
favorable to the nonmoving party, drawing all inferences and resolving all
ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010).
The Court’s function on summary judgment is to determine whether there exist any
genuine issues of material fact to be tried, not to resolve any factual disputes. .
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)
Once the moving party has asserted facts showing that the nonmoving
party’s claims cannot be sustained, the opposing party must set out specific facts
showing a genuine issue of material fact for trial. Price v. Cushman & Wakefield,
Inc., 808 F. Supp. 2d 670, 685 (S.D.N.Y. 2011); see also Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009). “[A] party may not rely on mere speculation or conjecture
as to the true nature of the facts to overcome a motion for summary judgment,”
because “[m]ere conclusory allegations or denials . . . cannot by themselves create a
genuine issue of material fact where none would otherwise exist.” Hicks v. Baines,
593 F.3d 159, 166 (2d Cir. 2010) (citations omitted); see also Price, 808 F. Supp. 2d
at 685 (“In seeking to show that there is a genuine issue of material fact for trial,
the non-moving party cannot rely on mere allegations, denials, conjectures or
conclusory statements, but must present affirmative and specific evidence showing
that there is a genuine issue for trial.”).

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B.

Wrongful Death

“Under New York law, to recover damages for wrongful death, a plaintiff
must prove: (1) the death of a human being; (2) a ‘wrongful act, neglect or default of
the defendant’ that caused the decedent’s death; (3) the survival of distributees who
suffered pecuniary loss by reason of the decedent’s death; and (4) the appointment
of a personal representative of the decedent.” Pub. Adm’r of Queens County ex rel.
Estate & Beneficiaries of Guzman v. City of New York, No. 06 Civ. 7099, 2009 WL
498976, at *5 (S.D.N.Y. Feb. 24, 2009) (citing Chong v. New York City Transit
Auth., 83 A.D.2d 546, 441 N.Y.S.2d 24, 25-26 (2d Dep’t 1981)). New York applies
“[t]he substantial factor standard for causation,” which “recognizes that often many
acts can be said to have caused a particular injury, and requires only that
defendant’s actions be a substantial factor in producing the injury.” In re Methyl
Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 591 F. Supp. 2d 259, 266 (S.D.N.Y.
2008). Plaintiff bears the burden of proving all elements of the claim, including
causation, by a preponderance of the evidence. Id.
III.

ANALYSIS
A.

Wrongful Death Causation

“In any action to recover damages for personal injuries or wrongful death, a
verdict for the plaintiff based on mere speculation as to the cause of the injuries or
death cannot be allowed to stand. There must be proof that the wrongful act
complained of was the proximate cause of the injuries.” Horne v. Metro. Transit

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Auth., 440 N.Y.S.2d 695, 696 (App. Div. 1981) (citations omitted). The question
presented by this motion is what proof, under these circumstances, will suffice.
Under Second Circuit precedent, “expert medical opinion evidence is usually
required to show the cause of an injury or disease because the medical effect on the
human system of the infliction of injuries is generally not within the sphere of the
common knowledge of the lay person.” Barnes v. Anderson, 202 F.3d 150, 159 (2d
Cir. 1999) (quoting Shegog v. Zabrecky, 654 A.2d 771, 776 (Conn. 1995)). This
requirement “is by no means limited to the medical malpractice context,” id. at 160,
but rather applies equally to wrongful death cases. See, e.g., Nealy v. U.S. Surgical
Corp., 587 F. Supp. 2d 579, 585-87 (S.D.N.Y. 2008).
Whether expert medical opinion evidence is required in a particular case
turns on the complexity of the injury and the likelihood that an ordinary person
would come in contact with such an injury. See, e.g., Fane v. Zimmer, Inc., 927 F.2d
124, 131 (2d Cir. 1991). For simple and familiar injuries, expert opinion is not
necessarily required. For example, “a lay juror is eminently capable of determining
whether a person who is dropped face-first from a height of three feet onto the
ground is likely to sustain physical injury.” Goodwine v. Nat’l R.R. Passenger
Corp., No. 12-cv-3882 (TLM), 2014 WL 795756, at *9 (S.D.N.Y. Feb. 27, 2014); see
also Byfield v. Chapman, No. 12-cv-6131-FPG, 2015 WL 6439001, at *2-*5
(W.D.N.Y. Oct. 22, 2015) (plaintiff, a pro se prisoner, could testify that his urine
contained blood five day after alleged beating without enlisting an expert).

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“Where, however, the nexus between the injury and the alleged cause would
not be obvious to the lay juror, ‘expert evidence is often required to establish the
causal connection between the accident and some item of physical or mental
injury.’” Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (quoting
Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695 (1st Cir. 1987)). This is
particularly true “[i]n a case such as this, where an injury has multiple potential
etiologies.” Id. Thus, the Second Circuit has affirmed a grant of summary
judgment in light of missing expert testimony linking exposure to toxins to a death,
even under the reduced burden of the Jones Act. Id. It has granted judgment as a
matter of law to defendants where plaintiff failed to provide expert medical
evidence that an alleged assault could cause a miscarriage. Barnes v. Anderson,
202 F.3d 150, 159-61 (2d Cir. 1999). And it has affirmed a directed verdict in favor
of defendants where no expert evidence emerged at trial that a particular device,
implanted via a complicated surgery, caused a bone to fracture. Fane, 927 F.2d at
131-32. District courts have faithfully followed the Second Circuit’s binding
guidance, and thus have, for example, granted summary judgment to defendants
where plaintiffs do produce expert evidence on causation, but that evidence
advances a number of equally plausible alternative theories through which “no lay
juror could wade … and reasonably pick one.” Glowczenski v. Taser Int’l, Inc., 928
F. Supp. 2d 564, 584 (E.D.N.Y. 2013); see also id. at 581-82 (rejecting attempt to
prove causation by means of autopsy photos).

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The wrongful death claim in the instant case is unmistakably a complicated
medical question outside the experience of an ordinary lay juror. Based on the
Court’s grant of summary judgment as to all but the final shot, a jury would be
required to parse the effect of the final shot from that of the initial volley in order to
determine whether the final shot caused Mr. Jaquez’s death for purposes of the
wrongful death tort claim. The earlier shots are an “obvious potential supervening
cause for the plaintiff’s injury,” Byfield, 2015 WL 6439001, at *2, and determining
the cause of Mr. Jaquez’s death requires disentangling “multiple potential
etiologies.” Wills, 379 F.3d at 46. Whether one particular bullet wound out of many
significantly contributed to a person’s death is a complex question about which a lay
juror cannot draw a reasonable inference without expert medical evidence.
Plaintiffs are thus required to produce admissible expert medical evidence on
causation in order to sustain their wrongful death claim. They have chosen not to
do so. The Court excluded plaintiffs’ initial proposed expert, Dr. Richard F.
Sullivan, because his proposed testimony did not meet the standard for expert
opinions required by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and
its related case law. (ECF No. 169 at 11-29.) After this preclusion, and after the
close of discovery, the Court provided plaintiffs with an additional opportunity to
proffer a new expert; for reasons that remain unclear to the Court, they elected not
to do. (ECF Nos. 189 & 190.)1 Therefore, the only witness who will provide any

1

Interestingly, the cost of expert retention was not the issue. At a conference at which this issue was discussed,
counsel for plaintiffs stated that they had the financial resources to hire an expert if they chose to do so.

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medical testimony at all is Dr. Kristen Landi, the medical examiner who conducted
Mr. Jaquez’s autopsy and will testify as a percipient witness.
Plaintiffs deposed Dr. Landi on October 9, 2014. (Landi Tr. 1:16.) In
response to questioning about the effect of wound A, Dr. Landi testified that “[t]he
consequence of [its] damage to contributing to [Mr. Jaquez’s] cause of death is
negligible.” (Id. 36:23-25.) There is no contradictory expert medical evidence on
this point. Plaintiffs have proffered no evidence that supports that wound A was a
substantial contributing factor in Jaquez’s death. Instead, plaintiffs argue that the
jury should be allowed to infer that the wound was a substantial contributing factor
without any supportive medical evidence. But this merely seeks to have the jury
engage in speculation. There is no principle of law that would allow this. See
Prunier v. City of Watertown, 936 F.2d 677, 680 (2d Cir. 1991) (under New York
law, “a jury may not base its verdict on mere speculation, surmise or guesswork”).
The gunshot wounds created an unmistakably complex set of injuries; and the
medical examiner has specifically testified that the final shot, the only one still at
issue, made a negligible contribution to Mr. Jaquez’s death. Asking the jury to
ignore that evidence in favor of speculation would be inappropriate.
For the reasons discussed above, on the facts here, a lay juror cannot draw a
reasonable inference about the medically complicated question of causation without
expert evidence. Plaintiff have produced no such evidence, and thus cannot carry
their burden to sustain a wrongful death claim. It follows that plaintiffs may not

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seek damages that were caused by Mr. Jaquez’s death, as opposed to being caused
by the final shot.
B.

Remaining Claims

Defendants also move for summary judgment as to the final bullet, based on
the alleged-to-be-undisputed medical and other testimony regarding Mr. Jaquez’s
physical capabilities at the time of the final shot. (ECF No. 226 at 3-5.) This
portion of the motion must be denied. The Court has, on several occasions,
identified material questions of fact that preclude summary judgment as to the final
shot. (ECF Nos. 169, 186.) It is sufficient for the purposes of this late motion to
note that defendants’ liability for the final shot depends not solely on Mr. Jaquez’s
physical capabilities at the time but also, inter alia, on whether Mr. Jaquez was
holding a knife and, if so, what (if anything) he was doing with it.
IV.

CONCLUSION
For the reasons stated above, defendants’ motion for summary judgment is

GRANTED as to plaintiffs’ wrongful death claim, and DENIED as to the rest of the
case. This ruling also requires the preclusion of damages related evidence based on
death; the parties should plan their presentations accordingly.
SO ORDERED.
Dated:

New York, New York
March 30, 2016

______________________________________
KATHERINE B. FORREST
United States District Judge

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