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Glowczenski v. Taser International Inc.

May 13, 2010

MARY JANE GLOWCZENSKI, AND JEAN GRIFFIN, INDIVIDUALLY AND AS THE CO-ADMINISTRATRIX OF THE ESTATE OF DAVID GLOWCZENSKI, PLAINTIFF(S),
v.
TASER INTERNATIONAL INC., VILLAGE OF SOUTHAMPTON, SOUTHAMPTON VILLAGE POLICE DEPARTMENT, POLICE OFFICER BRIAN PLATT IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER MARLA DONOVAN, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER CHRIS WETTER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER ARTHUR SCHUCHT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, COUNTY OF SUFFOLK, SUFFOLK COUNTY POLICE DEPT., LIEUTENANT JACK FITZPATRICK, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, LIEUTENANT HOWARD LEWIS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, JOHN DOES 1-10, WHO ARE KNOWN BY NAME TO THE DEFENDANTS BUT AS OF YET ARE NOT FULLY KNOWN TO THE PLAINTIFFS, OFFICE OF THE SUFFOLK COUNTY MEDICAL EXAMINER, JAMES C. WILSON, M.D., DEPUTY MEDICAL EXAMINER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, SOUTHAMPTON VILLAGE VOLUNTEER AMBULANCE (A.K.A. SOUTHAMPTON E.M.T. UNIT), MELISSA CROKE, EMT, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, KEITH PHILLIPS, EMT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, TIM CAMPBELL, EMT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, AND JAMES MOORE, AMBULANCE DRIVER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANT(S).



The opinion of the court was delivered by: Wall, Magistrate Judge

MEMORANDUM & ORDER

Before the court is a motion for summary judgment by defendants Southampton Village Volunteer Ambulance, Inc., s/h/a Southampton Village Volunteer Ambulance, EMT Melissa Croke, EMT Tim Campbell (a/k/a Thomas A. Campbell), EMT Keith Phillips, and Ambulance Driver James Moore (the "SVVA defendants"). DE[107] & [132]. The motion is opposed by the plaintiffs. DE[137]. The parties to this action have consented to my jurisdiction for all purposes. For the reasons set forth herein, the motion is GRANTED.

BACKGROUND

This lawsuit arises from the death of plaintiffs' decedent, David Glowczenski, on February 4, 2004. There are currently four motions for summary judgment before the court, by four sets of defendants, each focusing on different aspects of the facts underlying Mr. Glowczenski's death. Here, the salient facts involve the actions of the SVVA defendants when they responded to a call for emergency medical help for Mr. Glowczenski. The larger factual context, involving the police defendants and the use of a Taser to subdue Glowczenski, will be mentioned only as needed, if at all. The facts herein are taken primarily from the account set forth by the plaintiffs in their Memorandum of Law in Opposition to the SVVA motion and from documentary evidence in the motion papers. Where there is a difference of opinion as to a fact, such difference is noted.

David Glowczenski was a 35 year old man with a history of schizophrenia. At 10:42 a.m. on February 4, 2004, the defendant ambulance company received a call to go to the street outside of Our Lady of the Hamptons School in Southampton, NY, where the police had subdued Glowczenski. Defendant EMT Croke, who was not traveling in the ambulance, was the first to arrive, at 10:44 a.m. Defendant EMT Campbell arrived at 10:47 a.m. The ambulance, driven by defendant Moore and carrying defendant EMT Phillips, also arrived at 10:47 a.m. Prior to the arrival of the EMT defendants and the ambulance, Glowczenski had been handcuffed with two or more sets of handcuffs, put on wrist to cuff to cuff to cuff to wrist, with his hands behind his back and his legs "zipped tied," and he was lying face down. The defendants say that he was turned to a supine position when EMT Croke arrived. The plaintiffs say that he was not turned over until the ambulance arrived. In any event, Mr. Glowczenski was "blue and unresponsive" and without a pulse or respiration when the SVVA defendants arrived. See Defs. Exs. D & J, 79:20-25. The Prehospital Care Report ("the Report"), prepared by a defendant EMT, indicates that CPR was started at 10:46 a.m. See Defs. Ex. D. The plaintiffs note that the Report states both that Glowczenski was in a prone position when EMT Croke first arrived, and, "conversely," that CPR had already started when she arrived. What the Report actually says is that "[patient] presented prone on lawn upon EMS 7-18-80 arrival. pd rolled to supine position." Def. Ex. D. Neither party explains in their motion papers what "EMS 7-18-80" is, but defendant Phillips, in his deposition testimony, stated that "7-18-80 is a Ford Explorer driven by Melissa Croke." Pls. Ex. F, 26:11-12.

The Report indicates Glowczenski's "presenting problem" as cardiac arrest, and notes that Glowczenski had no pulse or respiration at either 10:45 a.m.or 10:55 a.m.. His level of consciousness was indicated as unresponsive, and his "GCS" was listed as a "3." "GCS" apparently refers to the Glascow Coma Scale, which is a neurological assessment of a person's level of consciousness through tests of eye, verbal and motor responses. Mr. Glowczenski's score of three is the lowest possible, indicating a state of deep coma. His blood pressure was expressed as a circle with a line through it, indicating, the court assumes, that it was not taken. There is no indication of his body temperature, and no line on the Report for entry of that information, but his skin was described as cool and moist.

The plaintiffs allege that the Police Officers, and not the EMTs, administered CPR to Glowczenski, with one of the defendant officers initiating the CPR and continuing it until Glowczenski's arrival at the hospital. The Report states that CPR was begun by a police officer prior to the arrival of the EMTs, and the defendants state that the CPR was administered "with the assistance of" Southampton Village Police Officers. Mem. in Supp. at 4, Ex. D. The defendants further state that Glowczenski's airway was cleared with suction at the scene, and ventilation provided with a bag-valve mask device. See Defs. Ex. D.

An Automatic External Defibrillator ("AED") was also used in the resuscitation efforts. See Defs. Ex. E. The defendants say that it was attached at the scene. The plaintiffs maintain that the AED was not turned on until 10:57 a.m., while the Report notes that the ambulance left the scene at 10:56 a.m. The defibrillator report indicates that the power to it was turned on at 10:57:40, and the Report states that the ambulance left the scene at 10:56 a.m. The record does not indicate who determined the ambulance departure time, but the defibrillator time report appears to have been machine generated. The defibrillator report indicates that four attempts to analyze the heart rhythm were made, with the first three resulting in a "no shock advised" prompt. The fourth attempt resulted in a "motion detected" result. Defs. Ex. E. After each attempt, CPR continued, but Glowczenski's pulse did not return. The defibrillation ceased, according to the printout, at 11:08:12 a.m., after Glowczenski had been moved into the Emergency Room.

Glowczenski was transferred to the ambulance on a long board, with the handcuffs and zip ties still in place, and, according to the Report, the ambulance departed the scene at 10:56 a.m., with the police officer continuing to apply CPR. It arrived at the hospital at 10:59 a.m., at which time the right rear door jammed, and Glowczenski had to be removed through the side door, on the backboard. The plaintiffs say that this caused a delay of several minutes, while the defendants say that it took only one minute. The court notes that the references to deposition transcripts relied on by the plaintiffs to support their claim of a longer delay do not support that claim. The deponents - defendants Campbell, Philips and Donovan are either unsure of how long it took to get him out, or, in the case of Phillips, say that it took one minute. See Pls. Exs. E, 53:17-54:12; F, 26:22- 27:6; and J, 87:20-89:7. All are agreed that when he was removed from the ambulance, Glowczenski was still handcuffed and zip tied. The plaintiffs claim that emergency room personnel were "enraged" by that, but the only citation that suggests support for that allegation is Keith Phillips' deposition testimony that nurse Wilson used profanity toward the officers in regard to removing the handcuffs. Pls. Ex. F, 29:12-25. The deposition testimony does establish that the Emergency Room personnel wanted the restraints removed.

Despite efforts in the Emergency Room of Southampton Hospital, David Glowczenski was pronounced dead at 11:20 a.m. on February 4, 2004.

DISCUSSION

Summary Judgment Standards

"'Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law.'" Jamaica Ash & Rubbish Removal Co. v. Ferguson, 85 F. Supp. 2d 174, 180 (E.D.N.Y. 2000) (quoting In re Blackwood Assocs., L.P. 153 F.3d 61, 67 (2d Cir. 1998) and citing Fed. R. Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In deciding a summary judgment motion, the district court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the opposing party. See Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The applicable substantive law determines which facts are critical and which are irrelevant. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

The trial court's responsibility is "'limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.'" B.F. Goodrich v. Betkoski, 99 F.3d 505, 522 (2d Cir. 1996) (quoting Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)). The court "is not to weigh the evidence, but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty America v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2007). When, however, there is nothing more than a "metaphysical doubt as to the material facts," summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Rather, there must exist 'specific facts showing that there is a genuine issue for trial' in order to deny summary judgment as to a particular claim." Jamaica Ash & Rubbish, 85 F. Supp. 2d at 180 (quoting Celotex, 477 U.S. at 322). A moving party may obtain summary judgment by demonstrating that little or no evidence may be ...


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