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SALLENGER v. CITY OF SPRINGFIELD

August 4, 2005.

MARY SALLENGER, as the Administrator of the Estate of ANDREW B. SALLENGER, Deceased, Plaintiff,
v.
CITY OF SPRINGFIELD, et. al, Defendants.



The opinion of the court was delivered by: JEANNE SCOTT, District Judge

OPINION

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.

STATEMENT OF FACTS

  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 [them]." Id.

  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 105-06.

  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 ¶¶ 168-69.

  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 ¶ 181.

  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. 169, 172.

  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. 89.

  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. 41-44, 51.

  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 ¶ 224.

  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, pg. 5.

  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 positioning.
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 Distress;
COUNT IX — Failure to Provide Medical and Psychological Treatment;
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.

  STANDARD OF REVIEW

  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 (1986).

  ANALYSIS

  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 Fed.R.Evid.

  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, 147-150 (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 process."
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 ...


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