The opinion of the court was delivered by: JEANNE SCOTT, District Judge
This matter comes before the Court on Defendants' Motion For
Summary Judgment (d/e 86) (Defendants' Motion).*fn1
Defendants seek judgment on all claims set forth in Plaintiff
Mary Sallenger's Second Amended Complaint (d/e 83), which alleges violations of Andrew
Sallenger's (Andrew) rights under the First, Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendments to the
U.S. Constitution, pursuant to 42 U.S.C. § 1983. The Second Amended
Complaint also asserts causes of action under various provisions
of Illinois state law and the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101, et seq. For the reasons set forth
below, Defendants' Motion for Summary Judgment is allowed in part
and denied in part.
Early in the morning of April 30, 2002, 35 year-old, divorced
Caucasian male Andrew Sallenger experienced a severe psychotic
episode caused by mental illness. At the time of the episode,
Andrew's mother Mary Sallenger (who is the Plaintiff in this
action), his sister Kim Nolan, Ms. Nolan's four children, and
Andrew, were spending the night at Mary Sallenger's Springfield,
Illinois, residence. When Andrew woke the household with his
yells and disturbing behavior, the children, Ms. Nolan, and Ms.
Sallenger left the residence together to call 911.
Ms. Nolan made the 911 call. She reported to the operator that
Andrew was "completely naked and he keeps on yelling at us, keeps
saying that he's sorry and he's got the cat locked in the bedroom. He's
in there breaking all kinds of stuff." Plaintiff's Response to
Defendants' Motion for Summary Judgment (d/e 92) (Plaintiff's
Response), Exh. 1, Deposition of Sergeant Zimmerman (Zimmerman
Dep.), Deposition Exh. 1, 911 Call Transcript, pg. 1. She
requested that the 911 operator dispatch paramedics to the
residence "[t]o take him. I mean he's very, you know, he's very
psychotic. I mean he's running around naked in front of the kids
and everything." Id. at 2. She notified the dispatcher that her
brother was "schizophrenic bipolar manic depressive . . .", and
that she had gone "to the state's attorney today to try to have
[Andrew] involuntarily committed cause he wouldn't go on his own
and they said that they couldn't do nothing cause they didn't
have enough evidence. . . ." Id. at 1-3. She also reported that
Andrew ". . . was after us. We had to run out the door." Id. at
3. Ms. Nolan made the 911 call at 1:49 a.m. Defendants' Motion,
Defendants' Undisputed Fact (DUF) ¶ 2.
Three Department officers were immediately dispatched to the
scene: Sergeant James Zimmerman, Officer Brian Oakes, and Officer
Jason Oliver. All three officers arrived at the Sallenger home by
2:07 a.m. Id., DUF ¶¶ 5 & 7. By this time, Ms. Nolan, Ms.
Sallenger, and the children had returned and were waiting outside the residence for a response to Ms.
Nolan's 911 call.
Upon their arrival, Ms. Nolan notified the officers that Andrew
was mentally ill. Id., DUF ¶ 14. Both Ms. Nolan and the
Plaintiff asked the officers when the paramedics would arrive to
help Andrew, and the Plaintiff told the officers that she wanted
the paramedics to help Andrew, not the officers. Plaintiff's
Response, Additional Material Facts (AMF) ¶¶ 163-64. Nolan
also informed the officers that the back door to the Sallenger
residence was unlocked, and that they could enter the residence
from that point. Defendants' Motion, DUF ¶ 17. Further, she
told Officer Oakes that Andrew was going crazy, throwing things
around the house, chasing the cat, and chasing the members of the
household while naked. Id., DUF ¶¶ 15 & 16.
Officer Oakes informed Sergeant Zimmerman that Andrew had a
mental problem and that he was big and strong. Defendants'
Motion, Exh. 3, Zimmerman Dep., pgs. 54, 75. Officer Oliver
testified that Oakes and Zimmerman mentioned to him that Andrew
had recently had a conflict with Department officers on April 28,
2002. Id., Exh. 2, Oliver Dep., pgs. 34-35. He also testified
that he was informed "that one of the family members told Oakes and Zimmerman that [Andrew] would probably fight with
At the time of the events underlying this suit, Andrew weighed
262 pounds and stood approximately 6' tall. Id., Exh. 5,
Andrew Sallenger Autopsy Report, pg. 5. The officers were also
large men: Sergeant Zimmerman stood 5' 10" tall and weighed 260
pounds; Officer Oakes stood 5' 10" tall and weighed 220 pounds;
and Officer Oliver stood 6' 3" tall and weighed 215 pounds.
Id., Exh. 3, Zimmerman Dep., pg. 102; Exh. 1, Oakes Dep.,
pg. 50-51; Exh. 2, Oliver Dep., pg. 12. Further, both Officers
Oakes and Oliver were weight-lifters, each capable of
bench-pressing approximately 275 pounds. Id.
At the time of the encounter, Department policy was to treat
all individuals equally, regardless of mental illness. Id.,
Exh. 9, Deposition of Chief of Police John Harris (Harris
Dep.), pg. 55. The only support services available to Department
officers for dealing with the mentally disturbed was to have an
ambulance transport the individual to a hospital for observation
and treatment. Id., Exh. 3, Zimmerman Dep., pg. 79;
Plaintiff's Response, AMF ¶ 86. None of the officers had
training specifically designed to help them respond to a mentally
disturbed individual. Id., Exh. 1, Oakes Dep., pgs. 12, 37; Exh. 2, Oliver Dep., pg. 9; Exh. 3, Zimmerman
Dep., pgs. 39, 42, 57. Lieutenant William Pittman, who was the
Assistant Chief of Police responsible for the Field Operations
Division at the time of the incident, testified that Department
police officers encountered mentally ill individuals once per
week on average, and possibly as frequently as once per day.
Plaintiff's Response, Exh. 21, Deposition of Lieutenant
William Pittman (Pittman Dep.), pgs. 62-63. The April 30, 2002,
Department policy of officers treating the mentally ill as they
would any other individual differed from the policy adopted by
the International Association of Chiefs of Police (IACP), which
issued Model Policies for dealing with the mentally ill in April
1997. Id., AMF ¶ 157. That Model Policy stated that:
. . . unless a crime of violence has been committed
and/or a dangerous weapon is involved, officers
should normally respond to the incident or approach a
known mentally ill subject in a low profile manner . . .
officers should request backup and any
specialized crisis intervention assistance available
while taking initial steps necessary to moderate or
diffuse a situation.
Id., AMF ¶ 158.
As the ranking officer, Sergeant Zimmerman led the other
officers into the Sallenger residence. Both he and Officer Oliver
testified that they believed at that point, based on the
information they had received, that they would arrest Andrew for disorderly conduct,
720 ILCS § 5/26-1(a)(1), which is a Class C misdemeanor. Defendants'
Motion, DUF ¶¶ 22 & 23. Officer Oakes, however, testified that
he did not intend to arrest Andrew when he entered the home; he
wanted to get Andrew's side of the story. Id., Exh. 1, Oakes
Dep., pgs. 34-35. The officers entered the home with Sergeant
Zimmerman in the lead, Officer Oakes following, and Officer
Oliver in the rear.
Sergeant Zimmerman announced the officers' entrance into the
Sallenger home by calling out to Andrew and telling him they were
members of the Department. Id., Exh. 3, Zimmerman Dep., pg.
41. Sergeant Zimmerman was unsure when he entered the residence
whether Andrew was still present because Andrew could have exited
the building while his family was making the 911 call. Id. at
71-72. The residence was dark, and the officers used their
flashlights for illumination. Id. at 73. When the officers
first saw Andrew, he was sitting cross-legged on the floor of his
bedroom, completely naked, with his back against the side of his
bed, and his right side facing the officers. Id. The officers
could hear Andrew muttering something about colors and fishing.
Id. at 52-53, 77-78; Exh. 1, Oakes Dep., pg. 110. Sergeant
Zimmerman recalled that there were no lights on in Andrew's bedroom, but Officers Oakes and Oliver remember that
a small bedroom lamp was on. Compare id., Exh. 3, Zimmerman
Dep., pg. 73, with Exh. 1, Oakes Dep., pg. 106-07; Exh. 2,
Oliver Dep., pg. 42.
At first it appeared that Andrew was not aware of the officers'
presence, despite Sergeant Zimmerman's verbal announcements. The
officers advanced toward Andrew's bedroom. Andrew first
acknowledged the officers by saying, "Hey, what are you guys
doing here." Id., DUF ¶ 50. The officers claim that Andrew
next threw a small, white ashtray-shaped item that came to rest
near Sergeant Zimmerman. Id., Exh. 1, Oakes Dep., pg. 124;
Exh. 2, Oliver Dep., pg. 52; Exh. 3, Zimmerman Dep., pg. 88.
Plaintiff disputes this claim, however, based on the fact that
crime scene investigator Sergeant Paul Schuh found no such item
when he investigated the bedroom after the encounter.
Plaintiff's Response, Exh. 10, Schuh Dep., pg. 40.
Andrew then stood up and approached the officers, who had
paused at the threshold of the bedroom, approximately five to six
feet away from where Andrew was sitting. Defendants' Motion,
Exh. 3, Zimmerman Dep., pg. 90. Sergeant Zimmerman, who was
closest to Andrew, testified that after Andrew stood up he swore
at the officers, rushed at Zimmerman, grabbed his shoulder radio equipment, and knocked his flashlight
out of his right hand. Id. at 93-94. Officer Oakes, who was
just behind Zimmerman, testified that Andrew swore at the
officers, threatened to kill them, clenched his fists, and
quickly came at the officers with his fists up. Id., Exh. 1,
Oakes Dep., pg. 124, 127-28. Officer Oliver, who was farthest
away from Andrew and standing behind both Zimmerman and Oakes,
testified that Andrew swore at the officers, clenched his fists
and approached in a "boxing position," stopped in front of
Zimmerman, and then started to reach for Zimmerman with both
hands. Id., Exh. 2, Oliver Dep., pgs. 51, 59-62.
Next, Officer Oakes discharged oleoresin capsicum (OC) spray
into Andrew's face, simultaneously with Sergeant Zimmerman's
contact with Andrew.*fn2 Some of the OC spray also hit
Sergeant Zimmerman in the face. Sergeant Zimmerman pushed Andrew
backward and both fell into the bedroom, with Sergeant Zimmerman
on top of Andrew. Id., DUF ¶ 69. Andrew managed to turn
himself over onto his stomach as Officer Oliver grabbed Andrew's right arm; Officer Oakes moved to control
Andrew's legs, and Sergeant Zimmerman grabbed Andrew's left arm.
The officers struggled with Andrew to get Andrew's arms behind
his back, but Andrew tucked his arms under his torso to prevent
handcuffing. The officers began repeatedly telling Andrew that he
was under arrest and commanding him to stop resisting arrest.
Id., DUF ¶ 86. During the struggle, Andrew repeatedly told
the officers to leave his house and threatened to kill them.
Id., DUF ¶ 89.
Despite the officers' efforts to keep him prone, Andrew brought
himself up onto his hands and knees. Officer Oliver put his knee
across Andrew's shoulder blades to push him back down, but Andrew
was able to lunge to the bed, lifting his torso onto the bed,
with his knees on the floor. The officers found it difficult to
hold Andrew because he was naked, sweating, and covered in the
oil-based OC spray. Id., DUF ¶ 112. All three officers
followed Andrew to the bed, where Andrew tucked his arms under
his torso again. Id., DUF ¶ 116.
At some point in the struggle, the bedroom lamp was knocked
over, plunging the room into darkness. Officer Oakes threw his
flashlight onto the bed to illuminate the room. Ms. Nolan
witnessed the bedroom light go out from her position outside the
home, and then witnessed what she described as a flashlight beam ". . . moving around [inside the
bedroom]. Like a hitting motion. . . ." Id., Exh. 8,
Deposition of Kimberly Nolan (Nolan Dep.), pg. 82.
Soon after Andrew lunged to the bed, however, both Officer
Oliver and Sergeant Zimmerman were successful in getting Andrew's
right and left arms behind his back, and he was handcuffed.
Officers Oakes and Oliver reported that Officer Oakes handcuffed
Andrew, using Officer Oakes' handcuffs, while Officer Oliver and
Sergeant Zimmerman held Andrew's hands behind his back. Id.,
Exh. 1, Oakes Dep., pg. 151; Exh. 2, Oliver Dep., pg. 111.
Sergeant Zimmerman recalled that Officers Oakes and Oliver were
able to put a handcuff on Andrew's right arm before he was able
to control Andrew's left arm enough for it to be handcuffed.
Id., Exh. 3, Zimmerman Dep., pg. 101. Sergeant Zimmerman
reported that it was not until Andrew had reached the bed that
the officers "finally were able to get the arms out from
underneath [Andrew] and get them . . . handcuffed." Id. at
Before Andrew was handcuffed, the officers applied several
progressively severe means of force to get him to comply with
their orders. First, Officer Oliver used several pressure point
techniques, which were ineffective, and Sergeant Zimmerman used an armbar technique in
an attempt to bring Andrew's left arm behind his back. Second,
both Officer Oliver and Officer Oakes administered closed-fist
strikes to Andrew, with Officer Oliver striking Andrew's right
shoulder two or three times, and Officer Oakes striking the right
common peroneal area, a nerve area behind the right thigh, with
two sets of three punches each. Id., DUF ¶ 150; Exh. 1,
Oakes Dep., pgs. 145, 147; Exh. 2, Oliver Dep., pgs. 106-07.
Third, Officer Oakes struck Andrew with three sets of flashlight
strikes, three per set, in Andrew's right common peroneal area.
Id., DUF ¶ 127.
Andrew continued to struggle despite the handcuffs, trying to
pull his hands apart and telling the officers to remove the
handcuffs or he would kill them. Id., DUF ¶¶ 147, 165. In the
course of this struggle, Andrew kicked Officer Oakes several
times. Id., DUF ¶ 143. Officer Oakes was trying to control
Andrew's legs while Officer Oliver held Andrew's shoulders down.
Id., DUF ¶ 177. Both Officers Oakes and Oliver used
additional force, beyond open-hand control, on Andrew to prevent
him from struggling after the handcuffing. Officer Oakes struck
Andrew three more times with his flashlight in the right common
peroneal area. Id., DUF ¶ 149. Officer Oliver delivered two
closed-fist punches to Sallenger's shoulder area, and two flashlight strikes to Andrew's right upper arm, because he
thought Andrew was reaching for his duty belt. Id., DUF ¶¶
After Andrew was handcuffed, Sergeant Zimmerman left the
bedroom to wash out the OC spray that had inadvertently hit him
in the eyes when Officer Oakes sprayed Andrew earlier in the
encounter. Id., DUF ¶ 172. After attempting to wash out his
eyes, Sergeant Zimmerman returned to the bedroom to see if
Officers Oakes and Oliver were okay. They responded
affirmatively. Id., DUF ¶ 174. Then Sergeant Zimmerman left
again to continue to flush the OC spray from his eyes. Id.,
DUF ¶ 176. When Sergeant Zimmerman returned a second time,
Officer Oakes gave him his car keys and asked Sergeant Zimmerman
to bring Oakes the hobble he kept in his police car. Id., DUF
At the time of the incident, Department policy allowed, and
even directed, officers to use hobbles in some circumstances.
Department Special Order #88-20 stated that a hobble ". . .
device will be utilized on combative prisoners . . .", and "the
device shall be used in cases in which a prisoner is displaying
or has indicated signs of a hostile and combative nature."
Plaintiff's Response, Exh. 9, Expert Report of Michael D.
Lyman, Ph.D. (Lyman Report), pg. 11 (quoting Department
Special Order #88-20). No officer training was offered by the Department in the use of a
hobble. Id., AMF ¶ 55. Officer Oakes' hobble was not issued
by the Department, but was privately purchased from a retail
website. Defendants' Motion, Exh. 1, Oakes Dep., pgs. 77-76.
None of the officers had been trained in the use of a hobble,
although Officer Oakes testified that he had read the
instructions that came with the hobble, and had seen other
Department officers use a hobble. Defendants' Motion, Exh. 1,
Oakes Dep., pgs. 78-79, 98; Exh. 2, Oliver Dep., pg. 148;
Exh. 3, Zimmerman Dep., pgs. 122-23. Sergeant Zimmerman knew,
however, that it was important to turn a person restrained in a
hobbled position on his side "to make sure that the airway is
clear and that [the arrestee] can still breathe." Id., Exh. 3,
Zimmerman Dep., pg. 137. Officer Oakes was not aware until
after the incident in question that a hobble could create a risk
of positional asphyxiation. Id., Exh. 1, Oakes Dep., pgs.
When Sergeant Zimmerman returned with Oakes' hobble, Andrew's
torso was still on the bed, with his knees on the floor and his
body in a kneeling position. Defendants' Motion, DUF ¶ 186.
Officer Oliver was partially on the bed, with his right knee on
Andrew's right shoulder area, his right hand pressing on Andrew's
left shoulder, and his left hand pulling up on the handcuff chain to keep Andrew from slipping the handcuffs
or jerking at them. Plaintiff's Response, Exh. 2, Oliver
Dep., pgs. 117-120. Officer Oakes was still trying to control
Andrew's feet. Defendants' Motion, DUF ¶ 183. Sergeant
Zimmerman and Officer Oakes then placed the hobble on Andrew.
Id., DUF ¶ 189.
Officer Oakes described the hobble as a cord that looped around
both of Andrew's legs in the area between his ankles and calves,
connected to a strap that was then attached to the handcuffs.
Plaintiff's Response, Exh. 3, Oakes Dep., pgs. 76-82. Officer
Oakes testified that he pulled the strap connecting the leg
restraint to the handcuffs taunt enough that, although Andrew's
knees were on the floor, "his feet were no longer the toes of
the feet were no longer touching the ground; they were elevated,
more or less . . . [and] [h]is lower legs from below his knees
were . . . pointing towards his butt. . . ." Id. at 87-88.
After the hobble was applied, on Sergeant Zimmerman's command,
all three officers released Andrew and stepped back. Defendants'
Motion, DUF ¶ 195. Sergeant Zimmerman and Officer Oliver
stated that Andrew kept struggling after the hobble was applied.
Id., Exh. 3, Zimmerman Dep., pg. 133; Exh. 2, Oliver Dep.,
pg. 130-31. It is unclear from the record how closely the hobble
drew Andrew's feet and hands together. Plaintiff's Response, Exh. 3, Oakes Dep., pg.
The officers differ in their accounts of Andrew's position
after he was hobbled. Sergeant Zimmerman testified that he rolled
Andrew off the bed and onto his side after Officer Oakes applied
the hobble. Id., Exh. 3, Zimmerman Dep., pgs. 172-73. Yet
Officer Oakes testified that Andrew was hobbled with his torso
leaning up against the bed, and that "[h]e remained in that
position" after he was hobbled. Id., Exh. 3, Oakes Dep., pgs.
87-91. He stated that Andrew was not taken off the bed until
after Sergeant Zimmerman recognized that Andrew was no longer
breathing. Id. at 94-95. Further, Officer Oliver's testimony
agrees with Officer Oakes. Officer Oliver stated that it was not
until after Sergeant Zimmerman asked if Andrew was still
breathing that the officers "[r]olled [Andrew] off of the bed,
[and] took the hobble and the handcuffs off of him." Id., Exh.
2, Oliver Dep., pg. 132. Lieutenant Mark Bridges, of the
Department, testified that when he arrived (shortly before the
officers realized Andrew was no longer breathing), Andrew was
hobbled and leaning against the bed. Plaintiff's Response, Exh.
19, Deposition of Lieutenant Mark Bridges (Bridges Dep.), pgs.
Additionally, Sergeant Zimmerman, Officer Oakes, and Officer
Oliver recount that the time between the hobbling and their realization
that Andrew was no longer breathing was only a few seconds.
Defendants' Motion, Exh. 1, Oakes Dep., pg. 66; Exh. 2,
Oliver Dep., pg. 131; Exh. 3, Zimmerman Dep., pgs. 138-39.
Lieutenant Bridges stated that upon arrival he saw that Andrew
was hobbled and no longer a threat, and quickly checked in with
the officers present. Plaintiff's Response, Exh. 19, Bridges
Dep., pgs. 49-50. To him it appeared that Sergeant Zimmerman and
Officer Oakes were perspiring heavily and were out of breath.
Id., Dep. Exh. 1, pg. 1. It was at that time, according to
Lieutenant Bridges, that Officer Oakes indicated that he did not
think Andrew was breathing. Id. at 50. Sergeant Zimmerman then
checked and found that Andrew was no longer breathing, and
Lieutenant Bridges called for paramedics. Id. at 51. Ambulance
personnel from Springfield Area Ambulance were dispatched to the
Sallenger residence at 2:23 a.m. Defendants' Motion, DUF ¶
Ms. Nolan stated, however, that she witnessed Sergeant
Zimmerman retrieve the hobble from a police car, return with it
to the Sallenger home, and then come out some time later to wipe
off his face. Defendants' Motion, Exh. 8, Nolan Dep., pg.
105-06. Ms. Nolan testified that she heard Andrew scream three
times, and then she followed Sergeant Zimmerman back into the home and to Andrew's bedroom. Id. at 99, 105-06.
At the door to Andrew's bedroom, Ms. Nolan said she reached into
the bedroom, turned on the overhead light, and saw Andrew
handcuffed and hobbled, with his head and chest on the bed and
his knees on the ground. Id. at 103. Responding to Andrew's
appearance, Ms. Nolan stated that she started screaming, ". . .
oh, my God, you killed my brother, you killed my brother." Id.
at 106. She said the officers did not check for a pulse until
after she came into Andrew's bedroom and started screaming. Id.
Officer Oliver stated that he remembered Ms. Nolan coming into
the bedroom after Andrew was handcuffed, but before he was
hobbled. Defendants' Motion, Exh. 2, Oliver Dep., pg. 132-33.
After Sergeant Zimmerman determined that Andrew was not
breathing and had no pulse, the officers removed the hobble and
Andrew's right hand was uncuffed. Id., DUF ¶ 210. Officer
Oakes recalls that Sergeant Daley and Officer Kean entered the
bedroom at this time, and that an officer began cardio-pulmonary
resuscitation (CPR).*fn3 Id., Exh. 1, Oakes Dep., pg. 95. All lifesaving efforts were ultimately fruitless.
Andrew was transported to St. John's Hospital in Springfield,
Illinois. He never regained consciousness, and was declared brain
dead on May 1, 2002. Defendants' Motion, Exh. 5, Andrew
Sallenger Autopsy Report, pg. 1.
Dr. Kent Harshbarger, M.D., J.D., a Sangamon County medical
examiner, performed the autopsy on Andrew. He concluded that the
cause of death was "a cardiorespiratory arrest during prone
police restraint due to excited or agitated delirium. The death
[was] contributed to by clinical history of mental illness,
cardiomegaly, fatty liver, and obesity." Id., Exh. 5, Andrew
Sallenger Autopsy Report, pg. 3. In the course of reaching his
conclusion about the cause of death, Dr. Harshbarger noted that
he had considered "Information . . . provided by personal
conversations with Susan Boone, the Sangamon County Coroner,
hospital chart, Emergency Room Record and Sgt[.] Eric Hall of the
Illinois State Police." Id., Andrew Sallenger Autopsy Report,
Dr. Harshbarger explained that the phenomenon of excited or
agitated delirium is "characterized by agitation, hostility,
bizarre or hyperactive behavior, paranoia, shouting, thrashing,
ranting and usually performing feats of exceptional strength or
endurance without apparent fatigue." Id. In Andrew's case, Dr. Harshbarger opined that his death was "likely
related to the various neurophysiologic or neurochemical
stressors acting upon underlying natural disease processes as
opposed to any clinically relevant reduction in blood oxygenation
during the period of restraint." Id. Further, Dr. Harshbarger
identified Andrew's cardiomegaly, or abnormally large heart, as a
risk factor for sudden cardiac arrest. Id., Deposition of Dr.
Harshbarger (Harshbarger Dep.), pg. 42. In contrast to a normal
male heart of 350 grams, Andrew's heart weighed 550 grams. Id.
Dr. Harshbarger also acknowledged, however, that in cases like
Andrew's where prone restraint techniques are employed:
[m]any investigators focus on the potential for
"positional asphyxia" or reduction in blood
oxygenation as the underlying cause of death,
however, the data to date does not confirm
significant lowering of blood oxygen in healthy
volunteer subjects. The test subjects do demonstrate
a prolonged pulse recovery time when in the prone and
"hobbled" position confirming a physiologic mechanism
affecting the heart that is related only to body
Id., Andrew Sallenger Autopsy Report, pg. 3.
In his examination of Andrew's physical injuries, Dr.
Harshbarger concluded that "there were no injuries identified
internally or externally, at the time of autopsy, which would
explain a sudden death." Id. In his deposition, Dr. Harshbarger pointed out that ". . . the bruises
[on Andrew's body] are significant. . . . many of the contusions
are large and of great force. Particularly in the arms, and the
lateral sides of the arms, lateral sides of the thighs, exactly
where they should be in someone trying to be restrained. [But]
[t]hey're not lethal." Id., Harshbarger Dep., pg. 127.
On September 10, 2002, Chief of Police Harris prohibited
Department officers from using hobbles to subdue arrestees.
Plaintiff's Response, Exh. 9, Lyman Report, pg. 11 n. 24. At
some point thereafter, Officer Oakes destroyed both the hobble he
had used on Andrew during the events at issue here and the
instructions that came with the hobble, and threw them both away.
Id., AMF ¶ 115; Id., Exh. 3, pg. 174. Defendants seek
summary judgment on the Second Amended Complaint which contains
the following claims:
COUNT I 42 U.S.C. § 1983, under the First, Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments to
the U.S. Constitution;
COUNT II Assault and Battery;
COUNT III Unlawful Use of Excessive Force;
COUNT IV Unlawful Use of Deadly Force;
COUNT V Unlawful Arrest; COUNT VII Intentional Infliction of Emotional
COUNT IX Failure to Provide Medical and
COUNT XI Wrongful Death;
COUNT XII Americans With Disabilities Act, pursuant
to 42 U.S.C. § 12101 et seq.;
COUNT XIII Spoilation of Evidence.
See Second Amended Complaint.*fn4
Counts I and XII are
brought against the Individual Defendants and the City of Springfield. Counts II-XI
and XIII are brought against the Individual Defendants and
against the City of Springfield under a theory of respondeat
superior. For the reasons set forth below, Defendants' Motion
is allowed in part, and denied in part.
At summary judgment, the movant must present evidence that
demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The
Court must consider the evidence presented in the light most
favorable to the non-moving party. Any doubt as to the existence
of a genuine issue for trial is resolved against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Once the moving party has produced evidence showing that
it is entitled to summary judgment, the non-moving party must
present evidence to show that issues of fact remain. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
I. ADMISSIBILITY OF PLAINTIFF'S EXPERT TESTIMONY As an initial matter, Defendants challenge the admissibility
and sufficiency of the expert testimony Plaintiff relied upon in
responding to Defendants' Motion, based on the Federal Rules of
Evidence (Fed.R. Evid.) and the Federal Rules of Civil Procedure
(Fed.R.Civ.P.). First, Defendants challenge the testimony of
Plaintiff's experts Dr. Michael Lyman, Dr. John Taraska, and Dr.
Jane Velez, by arguing that their opinions are neither admissible
under the Fed.R. Evid. and Daubert v. Merrell Dow
Pharmaceuticals, Inc., nor supported by sufficient evidence to
create a genuine issue of material fact to defeat Defendants'
Motion for Summary Judgment, pursuant to Zenith Electronics
Corp. v. WH-TV Broadcasting Corp. See Daubert, 509 U.S. 579
(1993); Zenith, 395 F.3d 416 (7th Cir. 2005). Second,
Defendants challenge the admissibility of Dr. Kent E.
Harshbarger's testimony, by contending that Plaintiff did not
disclose Dr. Harshbarger as a Fed.R.Civ.P. 26(a)(2)(A) expert.
A. Admissibility of Plaintiff's Expert Opinion Under
Under Fed.R. Evid. 104(a), the Court is vested with the
responsibility of determining the admissibility of expert
testimony by a preponderance of proof.*fn5
Fed.R. Evid. 104(a); Daubert,
509 U.S. at 592 n. 10. In this task, the Court is guided by Fed.R. Evid.
702, which provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
To determine whether an expert's opinions are based on
"scientific, technical, or other specialized knowledge," the
Supreme Court has set forth a non-exhaustive list of factors to
consider, which has been summarized as follows:
(1) whether the theory is scientific knowledge that
will assist the trier of fact and can be tested; (2)
whether the theory has been subjected to peer review
or publication; (3) the known or potential rate of
error and the existence of standards controlling the
technique's operation; and (4) the extent to which
the methodology or technique employed by the expert is
generally accepted in the scientific community.
Clark v. Takata Corp., 192 F.3d 750
, 757 n. 3 (7th Cir.
1999), citing Daubert, 509 U.S. at 593-94; see also
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999) (holding that Rule 702 applies to "technical, or other
specialized knowledge" as well, and that the Daubert factors
can be considered for those types of knowledge).
This test, however, is a flexible one. Bryant v. City of
Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000). The Daubert
Court noted, "The inquiry envisioned . . . is, we emphasize, a
flexible one. Its overarching subject is the scientific validity
and thus the evidentiary relevance and reliability of the
principles that underlie a proposed submission. The focus, of
course, must be solely on principles and methodology, not on the
conclusions that they generate." Daubert, 509 U.S. at 594-95
(footnote omitted). Further, the Court noted that "[v]igorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence."
Id. at 596. In Kumho Tire Co., Ltd., the Court also explained
that "[t]he trial court must have the same kind of latitude in
deciding how to test an expert's reliability, and to decide whether or when special
briefing or other proceedings are needed to investigate
reliability, as it enjoys when it decides whether or not that
expert's relevant testimony is reliable." Kumho Tire Co., Ltd.,
526 U.S. at 152 (emphasis in the original).
Even if the means used to reach an expert conclusion are
proper, however, an expert's testimony may be inadmissible under
Fed.R. Evid. 702 if the expert fails to properly support his
opinion. The Seventh Circuit has noted:
A witness who invokes "my expertise" rather than
analytic strategies widely used by specialists is not
an expert as Rule 702 defines that term. [The expert]
may be the world's leading student of MMDS services,
but if he could or would not explain how his
conclusions met the Rule's requirements, he was not
entitled to give expert testimony. As we so often
reiterate: "An expert who supplies nothing but a
bottom line supplies nothing of value to the judicial
Zenith Electronics Corp., 395 F.3d at 419, quoting Mid-State
Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333
1339 (7th Cir. 1989).
Defendants contend that the reports and opinions of Plaintiff's
experts, Dr. Michael Lyman, Dr. John Taraska, and Dr. Jane Velez,
do not pass muster under Fed.R. Evid. 702. The Court now ...