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Mary Jane Glowczenski, and Jean Griffin, Individually and As the v. Taser International

March 22, 2012

MARY JANE GLOWCZENSKI, AND JEAN GRIFFIN, INDIVIDUALLY AND AS THE CO-ADMINISTRATRIX OF THE ESTATE OF DAVID GLOWCZENSKI,
PLAINTIFF(S),
v.
TASER INTERNATIONAL, INC., OFFICE OF THE SUFFOLK COUNTY MEDICAL EXAMINER, M.D. JAMES C. WILSON, VILLAGE OF SOUTHAMPTON, SOUTHAMPTON VILLAGE POLICE DEPARTMENT, POLICE OFFICER BRIAN PLATT IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER MARLA DONOVAN, IN HER INDIVIDUALAND 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 DEPARTMENT, LIEUTENANT JACK FITZPATRICK IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, LIEUTENANT HOWARD LEWIS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, AND JOHN DOES 1-10, DEFENDANT(S).



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

MEMORANDUM & ORDER

Before the court are several motions in limine seeking to preclude all or part of the testimony by four experts proffered by the plaintiffs. Oral argument on the motions was heard on March 20, 2012 and rulings were made from the bench. At the oral argument, a ruling on the motions in regard to Dr. Michael Morse was announced, but I agreed to take another look at the papers on those motions. After having done so, I adhere to the ruling announced in court. After the renewed summary judgment motion to be made by defendant Taser International, the defendants can renew their in limine motions to preclude if the posture of the case at that time makes such motions viable.

The motions and their dispositions are:

1) DE[161] - the Village Defendants'*fn1 Motion to preclude all testimony by Dr. Lone Thanning*fn2 , M.D. and Alan M. Leiken, Ph.D, the damages expert, and to limit testimony by Edward Mamet, the police procedure expert: Moot as to Dr. Thanning and denied as to

Dr. Leiken and Mr. Mamet.

2) DE[165] - Taser's motion to preclude testimony about warning and design by Michael Morse, Ph.D., an expert in the field of electricity: Denied.

3) DE[168] - Taser's motion to preclude testimony by Dr. Leiken: Denied.

4) DE[171] - Taser's motion to preclude testimony by Dr. Thanning and Dr. Morse, regarding causation: Moot as to Dr. Thanning, denied as to Dr. Morse.

5) DE[174] - Brian Platt's motion to preclude testimony by Mr. Mamet and Dr. Thanning: Moot as to Dr. Thanning, denied as to Mr. Mamet.

6) DE [197] - the Village Defendants' motion to preclude testimony by Dr. William Manion, the substituted cause of death expert: Granted.

(7) DE[200] Officer Platt's motion to preclude testimony by Dr. Manion: Granted.

(8) DE[205] Taser's motion to preclude testimony by Dr. Manion: Granted.

Based on the rulings from the bench, Taser asked to renew its motion for summary judgment and have a briefing schedule entered. Taser should serve its papers by April 23, 2012, the plaintiffs shall respond by May 14, 2012, and the reply shall be served and the bundled motion filed by May 28, 2012. Extensions to those dates should not be expected, as this nearly eight year old case must move forward and go to trial at the earliest possible date.

BACKGROUND

The factual background of this action is set forth at length in the Orders deciding prior motions for summary judgment, and will be repeated herein only as necessary. Most of the expert witnesses' testimony, except for Dr. Leiken's, is related to the cause of death of the plaintiffs' precedent, David Glowczenski, on February 4, 2004 and/or the defendants' responsibility for that death. Dr. Leiken's testimony goes to the damages issues. Generally speaking, the plaintiffs allege that Mr. Glowczenski died as a result of excessive force and lack of training on the part of the police defendants, and as a result of the physiologic impact on his body caused by the Taser about which Taser failed to warn the police. The defendants oppose those allegations, and argue that they are not responsible for Glowczenski's death on any of the theories advanced by the plaintiffs. The particulars of the parties' theories of the cause of death are as follows, based primarily on the most recently filed briefs regarding the Manion motion.

Theories of the Case and Cause of Death

The cause of Glowczenski's death, according to Dr. Manion, was positional asphyxia augmented by repeated Taser Electronic Control Device ("ECD") discharges causing severe muscle contractions, which increased and accelerated Glowczenski's pre-existing metabolic acidosis and contributed to his death. See Supp. Jt. Defense (SJD) Ex. 25 at 3; Ex. 26, Manion Dep., 149:19-22, 154:11-17, 225:13-15. Taser argues that the metabolic acidosis theory, that is, that ECD applications cause strong muscle contractions that create lactic acid that affects pH balance and causes sudden death, is entirely dependent on whether the ECD caused significant muscle contractions, which, according to Taser, cannot occur in stun-drive as opposed to probe deployment of the Taser.

The defendants argue that Glowczenski had a long history of mental illness and was off his medications and in a psychotic episode on 2/4/04 during the encounter with the police, who had been called by his mother. When Glowczenski acted aggressively, allegedly knocking a female officer, defendant Officer Donovan, to the ground, Sgt. Schucht told Officer Platt to remove the probe cartridge from his Taser M26 ECD and to drive-stun Glowczenski. Platt applied several ECD drive-stuns to Glowczenski's backside and below his waist, with no apparent effect. The ECD was then abandoned in favor of pepper spray, which was also not effective in calming Glowczenski. Glowczenski was finally restrained, and paramedics were called, as standard procedure following the use of pepper spray. When the paramedics arrived, they found Glowczenski in cardiac arrest, without pulse or respiration, and started ...


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