Petro v. Town of West Warwick ex rel. Moore (889 F. Supp. 2d 292, 2012)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

WILLIAM E. SMITH, District Judge.

In the wake of Mark Jackson’s death while in police custody, Plaintiff Karen Petro, as Administratrix of Mark Jackson’s Estate, brought this action against' the Town of West Warwick (the “Town”) and West Warwick Police Officers Patrick Kelley, Sean Lukowicz, and Scott Thornton, individually and in their representative capacities (collectively, the “Defendants”). The Complaint alleges claims against Officers Kelley, Lukowicz, and Thornton for the violation of Jackson’s constitutional rights, assault and battery, and gross negligence; Plaintiff further alleges a respondeat superior claim, related to the gross negligence and assault and battery claims, against the Town.

Although the facts of this case are seemingly straightforward- — -indeed, the pertinent events took place within a relatively short time period and much of it was recorded on video — the case nonetheless presents numerous novel, important, and difficult issues of law.

The Court presided over a nine-day bench trial, beginning on October 31, 2011. After trial, the Court posed written questions to the parties, which they were invited, but not required, to answer in their post-trial briefs. Thereafter, the parties submitted post-trial briefs and reply briefs. After considering the evidence presented at trial and the pre-trial and post-trial memoranda submitted by the parties, the Court makes the following findings of fact and conclusions of law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To the extent that any finding of fact reflects a legal conclusion, it should be, to that extent, deemed a conclusion of law, and vice versa.

Many of the facts found below are based on a video of the back lot of the West Warwick Police Department (“WWPD” or the “Department”), recorded by the WWPD’s own recording system. (See generally Ex. 12.)

I. Findings of Fact

A. Mark Jackson

Mark Jackson was 47 years old when he died on June 27, 2008. (Ex. 7a.) At the time of his death, he was a large man, standing 6'2" and weighing over 250 pounds. (Ex. 5.)

Jackson had suffered from psychiatric or neurological disorders for at least fifteen years prior to his death. (Ex. 7c.) His diagnoses over the years included organic delusional disorder, post-traumatic stress disorder, and schizophrenia. (Exs. 7c, 7g, 7j, 7m.) According to the exhibits and testimony admitted at trial, Jackson had no reported history of any acute phase or acute episode of schizophrenia. (Trial Tr. vol. 5, 91, Nov. 4, 2011; Exs. 7a-7m.)

Jackson lived a socially isolated and circumscribed life. (Trial Tr. vol. 5, 44-45, 59-60, 93-94.) For many years leading up to his death, his social contacts consisted of spending the day and evening with his mother. (Id. vol. 5, 44-45; Trial Tr. vol. 6, 228-229, Nov. 8, 2011; Ex. 7m.) He drove his mother around to do her errands and watched television in her apartment at 88 West Warwick Avenue in West Warwick, Rhode Island. (Trial Tr. vol. 5, 44^15; id. vol. 6, 215.) Otherwise, his regular routine, which he followed “like clockwork” according to the testimony of one witness who saw him regularly, consisted of going outdoors to smoke and walking to several businesses within a one-block radius of his mother’s home for tobacco products, coffee, and fast food. (Id. vol. 5, 44^15; id. vol. 6, 228-229.)

According to Social Security assessments and the testimony of Debra Pinals, M.D., a psychiatrist who provided expert testimony on behalf of Plaintiff, Jackson had severe difficulties communicating with and understanding others as a result of his disability. (Id. vol. 5, 33-34, 37-38, 45, 93-94; Exs. 7g, 7m.)

Jackson’s condition had remained relatively constant, and he had not taken medication for his condition for many years. (Trial Tr. vol. 4, 68, Nov. 3, 2011; id. vol. 5, 77-78; Exs. 7g, 7m.) He relied on routines that minimized social contacts to compensate for his difficulties in social interaction and communicating with others. (Trial Tr. vol. 4, 68-70; id. vol. 5, 45.)

With the exception of his mother, Jackson kept to himself and limited his communications with others to what was required to make his purchases. (Id. vol. 2, 70, 73, Nov. 1, 2011; id. vol. 5, 108-09.) A shop owner and a neighbor testified that they never saw Jackson do anything inappropriate. (Id. vol. 2, 54-55; id. vol. 5, 112.)

In the center of the oddly-configured block in which Jackson’s mother’s apartment is situated, there is a parking lot immediately adjacent to his mother’s apartment building. (Id. vol. 6, 222-24; Ex. 30.) This parking lot is shared by Joyal’s Liquors (“Joyal’s”), a liquor and tobacco store located at 90 West Warwick Avenue, and the residents of a multi-family house that is located in the middle of the parking lot, with the street address of 241 Brookside Avenue. (Trial Tr. vol. 2, 50-51.)

The parking lot is open to the street and partially fenced in back. (Ex. 30.) This parking lot is also used as a shortcut in the neighborhood with access to 88 West Warwick Avenue via a short path. (Trial Tr. vol. 2, 56-57; id. vol. 5, 103-04; Ex. 30.)

Jackson purchased tobacco products daily from Joyal’s. (Trial Tr. vol. 5, 111.) His mother did not allow him to smoke in her apartment, so he typically went out to smoke many times a day. (Id. vol. 6, 214; id. vol. 5, 44-45.) He regularly used Joyal’s back parking lot as a place to smoke, both during the day and in the evening. (Id. vol. 2, 54, 62.) The owner and employees of Joyal’s and the tenants of the apartment building located at 241 Brookside Avenue were aware of Jackson’s habit. (Id. vol. 2, 54, 62; id. vol. 5, 106, 108.)

Jackson was not a violent person. (Id. vol. 2, 70; id. vol. 5, 43-44, 112.) His medical and psychiatric records and the records of the Rhode Island Attorney General’s Office reflect no prior involvement with law enforcement and no history of violent behavior. (Id. vol. 5, 34-36; id. vol. 7, 174, Nov. 9, 2011; Exs. 7j, 18.) Indeed, the only reported instances of Jackson acting out or losing his temper were an instance when he saw children throwing rocks and shouted at them to stop and another instance when he became agitated because he believed his mother was driving too fast. (Trial Tr. vol. 5, 43-44.)

B. The Encounter

On the morning of June 27, 2008, following his usual practice, Jackson drove to his mother’s apartment and spent the day there. (Id. vol. 6, 216-17.) As she did from time to time, Jackson’s mother gave him permission to spend the night. (Id. vol. 6, 214-15.) Jackson was in his normal, calm, baseline condition when he went outside to Joyal’s back parking lot to smoke at approximately 11:00 p.m. that evening. (Id. vol. 4, 68; id. vol. 5, 29-30; id. vol. 6, 215.)

Also at approximately 11:00 p.m. that night, a WWPD dispatcher contacted Officers Sean Lukowicz and Patrick Kelley, who were on patrol that evening, and provided them with the following dispatch: “In front of Brookside at West Warwick of Joyal Liquors. Subjects vandalizing the Joyal Liquor sign.” (Ex. 8b.) Lukowicz and Kelley heard this dispatch. (Trial Tr. vol. 1, 6, 131, Oct. 31, 2011; id. vol. 2, 76, 79-80.)

When they received the call, Lukowicz and Kelley were in their respective patrol cars. They were parked in the parking lot of a closed business up the street, having a conversation. (Id. vol. 1, 6; id. vol. 2, 76.) It was a warm Friday evening, and there were many people out and about on the streets. (Id. vol. 1, 7; id. vol. 2, 78.) Joyal’s was not located in a high-crime area. (Id. vol. 7,197-98.)

Lukowicz and Kelley immediately proceeded in their separate patrol cars to Joyal’s. They were both familiar with the signs located one above the other in front of Joyal’s, near the curb on the corner of West Warwick Avenue and Brookside Avenue, each having driven by the signs hundreds of times. (Id. vol. 1, 8; id. vol. 2, 80; Ex. 50.) The officers approached Joyal’s from the west and were able to see the signs from West Warwick Avenue. (Trial Tr. vol. 1, 8-9; id. vol. 2, 83-84.) Kelley pulled his patrol car into the front parking lot at Joyal’s, which gave him another vantage point to observe the signs. Lukowicz pulled his patrol car onto Brookside Avenue, giving him a vantage point to observe the signs from that side. (Id. vol. 2, 84-85.) Kelley observed the signs and saw no damage. While Lukowicz testified that he did not recall whether he observed the signs, he did recall that he saw no damage or anything suspicious in the front parking lot. (Id. vol. 1, 9; id. vol. 2, 84-85, 94.) Joyal’s was closed at that time of night. (Id. vol. 1,14.)

Kelley then drove his patrol ear out of the front parking lot of Joyal’s onto Brook-side Avenue, proceeded a short distance, and pulled into the parking lot behind the store. (Id. vol. 2, 85-86; Ex. 2 at 3.) That parking lot is illuminated by three large halogen lights such that it is fairly well-lit at night. (Trial Tr. vol. 5, 98; Exs. 51, 52.) Lukowicz followed Kelley to the parking lot and parked to the right of Kelley’s patrol car; they both had their headlights illuminating the loading dock at Joyal’s. (Trial Tr. vol. 1, 20-22; id. vol. 2, 86.) Kelley, in particular, was quite familiar with this back parking lot, having patrolled the area and passed through the parking lot regularly for the previous two-and-a-half years. (Id. vol. 1,14-15.)

Both Kelley and Lukowicz were aware that the parking lot was shared by the occupants and guests of the multi-family home located in the middle of the parking lot at 241 Brookside Avenue, as well as by the customers and staff of Joyal’s. (Id. vol. 1, 16; id. vol. 2, 88.) They were also aware that immediately adjacent to the parking lot behind Joyal’s was the apartment building at 88 West Warwick Avenue. (Id. vol. 2, 89.)

When Kelley and Lukowicz pulled into the back parking lot, their headlights illuminated Jackson standing facing them and smoking near one of the loading docks for Joyal’s. (Id. vol. 1, 134, 183; Ex. 2 at 3.) He was standing in the area of the parking lot near his mother’s apartment building at 88 West Warwick Avenue. (See Ex. 53a (marking the spot where Jackson was standing when Kelley and Lukowicz first encountered him).)

As Kelley and Lukowicz observed Jackson, they saw that the loading door was down as it should be, and they saw no damage to the loading docks or anything suspicious in the parking lot or the back of the Joyal’s building. (Trial Tr. vol. 1, 28-29; id. vol. 2, 90.)

Lukowicz testified at his deposition that, at the time he first observed Jackson, there was not a reasonable basis to suspect that Jackson had committed, was committing, or was about to commit the crime of vandalism or any other crime because the signs in front of Joyal’s did not appear to be damaged and there was no report of any other criminal activity. (Id. vol. 2, 97.) At trial, he acknowledged that this deposition testimony was true testimony when he gave it, but he proceeded to provide contradictory trial testimony. (Id. vol. 2, 96-97.) Lukowicz also testified that he had no reason to suspect that Jackson had vandalized any sign. (Id. vol. 2, 96.)

Richard Silva, the Chief of the West Warwick Police Department, testified at his deposition that he was familiar with this location and that, in his professional opinion, neither Lukowicz nor Kelley had a reasonable basis to suspect that Jackson had committed, was committing, or was about to commit a crime at the point in time that they first saw him because they observed no damage to the signs. (Id. vol. 7, 208-09, 211-12.) Kelley testified that from the first moment he saw Jackson from his cruiser, Kelley was determined to question him and, if necessary, physically detain him for questioning. (Id. vol. 1, 30-31, 208-09.)

When Kelley and Lukowicz saw Jackson illuminated in their headlights, Lukowicz turned on his search light and directed it at Jackson. (Id. vol. 2, 86-87.) Apparently having seen the patrol cars, Jackson immediately turned 180 degrees to his left and started walking away from the officers and toward the opening in the fence on the other side of the parking lot. (Id. vol. 1, 26; id. vol. 2, 98.) Both officers then exited their patrol cars and started walking toward Jackson. (Id. vol.. 1, 135; id. vol. 2, 98.)

Testimony about the speed at which Jackson walked away from the officers varied. Both Kelley and Lukowicz, in their interviews with the Rhode Island State Police, which were conducted a few hours after the incident, stated only that Jackson walked away from them; they did not mention that he was walking at any accelerated speed. (Ex. 1 at 5; Ex. 2 at 4.) Kelley testified at trial that Jackson walked at a swift pace but was definitely walking, not running. (Trial Tr. vol. 1, 31.) Lukowicz recalled only that Jackson was walking “not slow, not fast, that he was just walking.” (Id. vol. 2, 98.)

When they observed Jackson walking away from them, Kelley and Lukowicz ordered him to stop. (Id. vol. 1, 36, 38; id. vol.' 2, 98.) Jackson responded with words to the effect of “you’re not the boss of me.” (Id. vol. 1, 38.) The officers saw that he had his right hand in his pocket. (Id. vol. 1, 31.) Lukowicz testified that he did not feel threatened by Jackson having his hand in his pocket. (Id. vol. 2, 1Ó6.) Kelley testified that he was not sure why Jackson had his hand in his pocket; he stated, “I wasn’t certain if he had a weapon in his pocket or any other type of contraband.” (Id. vol. 1, 138.) Lukowicz and Kelley then ordered Jackson to remove his hand from his pocket. (Id. vol. 1, 40; Ex. 1 at 5.) Jackson again responded by stating “you’re not the boss of me,” and he continued walking away from the officers. (Trial Tr. vol. 1, 40.)

Lukowicz and Kelley acknowledged at trial that they understood Jackson’s statement “you’re not the boss of me” to be a refusal to follow their commands. (Id. vol. 1, 40; id. vol. 2, 102.) Kelley testified that “you’re not the boss of me” was something an average adult would say to him and that Kelley “just assumed he was a non-compliant person.” (Id. vol. 2, 5.) The officers testified that they decided to stop Jackson based on the following facts: the dispatch call regarding possible vandalism; the fact that the business was closed; the time of night; and Jackson’s response to the officers, i.e., he turned away from them as they pulled into the parking lot, with his hand in his pocket. (Id. vol. 1, 31, 134, 209-10; id. vol. 2, 38,101.)

Kelley then hastened his pace to catch up with Jackson. (Id. vol. 1, 47.) Kelley reached out to take hold of Jackson’s right arm, but before he could touch him, Jackson removed his right hand from his pocket and “swatted” or “flailed” his right arm at Kelley. (Id. vol. 1, 49-50, 139; id. vol. 1, 140 (“Mr. Jackson removed his hand from his right pocket and swung his arm in a back-hand motion, swatted his arm towards [Kelley], Pretty good full arm swat at [Kelley].”); id. vol. 2, 109-10; Ex. 1 at 6; Ex. 2 at 6 (“And he took his hand out of his pocket and he, and he slapped at me and tried to slap me in the way like a backhand.”).) Kelley testified that, when he reached out for Jackson, it was his intention to physically restrain him from walking away. (Trial Tr. vol. 1, 49.)

The parties dispute whether Jackson’s “swatting” gesture was purely defensive or overtly aggressive and threatening. Kelley demonstrated the gesture at trial in a manner that appeared very aggressive and capable of causing injury to Kelley. Indeed, he testified at trial that he believed the gesture would have injured him if it had landed. (Id. vol. 1, 57-58.) However, at his deposition, he testified that it appeared that Jackson was merely attempting to swat his arm away. (Id. vol. 1, 55, 61.) Kelley testified at his deposition that the gesture did not cause him fear and that he could not speculate as to whether it would have hurt him. (Id. vol. 1, 58-59; Kelley Dep. 207-08.) Kelley stepped back, and Jackson’s gesture did not result in any physical contact whatsoever. (Trial Tr. vol. 1, 61-62.)

In light of the circumstances surrounding the swat, the Court finds that Jackson swatted or flailed in a reactionary manner in response to Kelley’s attempt to reach out and make contact with him. The Court further finds that this swat or flail was a defensive reaction, consistent with what any grown, larger male would do if a person was reaching out to make unwanted contact with him and that it was not especially aggressive or violent in nature. Moreover, it was not an attempt to strike or injure Kelley, but rather a defensive maneuver to prevent Kelley from making contact with him. In light of the fact that Kelley had just reached out to touch Jackson, the Court also finds that Kelley reasonably should have perceived the flail/swat to be a defensive, rather than an offensive, move on Jackson’s part. The Court finds that Jackson’s flail/swat was not made in a threatening manner and would not place a reasonable person in fear of imminent bodily harm. Likewise, the Court finds that Kelley was not reasonably in fear of being injured and that he would not have been injured if Jackson had made contact with his arm or hand.

Within seconds of Jackson swatting at Kelley, Kelley made the decision to arrest Jackson for assault. (Id. vol. 1, 62, 144; id. vol. 2, 111.)

C. The Struggle

After the instantaneous decision to detain him, Kelley, with Lukowicz, immediately moved in and seized Jackson by his shoulders, attempting to put him to the ground using an arm-bar maneuver. Jackson physically resisted Kelley’s and Lukowicz’s efforts to subdue him. (Id. vol. 1, 64-66.) Lukowicz attempted to take control of Jackson’s wrist. Jackson was aggressive and fought back vigorously with the officers. He pulled at their uniforms and actively wrestled with them. (Id. vol. 2, 139.) Jackson flailed his arms and kicked at the officers, making contact with one of Kelley’s legs. (Id. vol. 1, 144.) While the officers were struggling to put him on the ground, Jackson asked them several times, “why are you doing this to me?” (Id. vol. 1, 67; Ex. 2 at 10-11.)

Despite the officers’ efforts to hold him to the ground, Jackson was able to get to his feet. (Trial Tr. vol. 2, 139-40.) Kelley then made the decision to use pepper spray “because we had him on the ground and it appeared as though he was very, very strong. I felt as though that if we sprayed him it might give us an advantage to get him secured and back to the station____” (Id. vol. 1, 146-47.) But Jackson wiped the pepper spray off of his face and the struggle continued. (Id. vol. 1, 69.)

The officers took Jackson to the ground again; Jackson became more combative and violent on this second takedown. He kicked them while he screamed and grunted. (Id. vol. 1, 148.) Jackson wrestled his arms free from the officers’ grasp and got up again. (Id. vol. 1, 67-68.) On two occasions, Kelley administered pepper spray directly to Jackson’s face. (Id. vol. 2, 141-42.) Kelley and Lukowicz each struck Jackson’s legs with their batons on at least two occasions. (Ex. 1 at 14-15; Ex. 2 at 17.)

Jackson was brought to the ground a third time, and as Kelley and Lukowicz secured handcuffs on Jackson, a third officer, Officer Thomas Nye, arrived. Thomas Nye held one of Jackson’s arms to enable him to be fully handcuffed. (Trial Tr. vol. 8, 172-73.) At that point, two more officers, Officers Michael Nye and Marcus Palazzo, arrived; a total of five officers were in the back parking lot at Joyal’s around Jackson, who was handcuffed and kneeling. (Id. vol. 1, 72-73; id. vol. 9, 5-6, Nov. 14, 2011.) Kelley and Lukowiez had minor injuries (e.g., scratches and abrasions) from the struggle. (Id. vol. 1,160-61; id. vol. 2,145.)

One witness, who overheard the altercation from her window, testified that Jackson on several occasions said to the officers “I love you guys” or words to that effect. (Id. vol. 2, 52.) Several officers also testified that Jackson said words to the effect of “I love you guys” during the altercation. (Id. vol. 1, 73; id. vol. 4, 203-04; Ex. 1 at 17; Ex. 2 at 18.)

The officers pulled Jackson to his feet and attempted to walk him over to a patrol car, but Jackson would not or could not stand up. (Trial Tr. vol. 1, 73; id. vol. 4, 183; Ex. 1 at 18; Ex. 2 at 19.) Lukowiez and Kelley then physically placed him in the back of Lukowicz’s cruiser and laid him across the back seat. (Trial Tr. vol. 4, 143-45; Ex. 1 at 18-19.)

At trial, Dr. Pinals testified that Jackson’s resistance and statements to the officers prior to and during the altercation were consistent with his normal limitations, lack of understanding, and consequent severe firight. (Trial Tr. vol. 5, 31, 33-34, 37-39.) Dr. Pinals has extensive experience with schizophrenic patients both in psychiatric hospitals and in the community and testified that individuals such as Jackson sometimes become frightened and strongly resist restraint even by several persons in situations that they do not understand and with which they are unfamiliar. (Id. vol. 5, 5-6, 79-81.) Defendants offered no opposing expert testimony on this issue except the testimony of their expert, Charles Wetli, M.D., a forensic pathologist, who suggested that Jackson acted abnormally during the altercation but acknowledged that he was not qualified to opine whether this behavior was consistent with Jackson’s normal limitations and level of functioning under the stress of the situation. (Id. vol. 7, 175-77, 179-183.) The Court accepts Dr. Pinals’s testimony on this issue. From Jackson’s perspective, he was alone, quietly smoking in a very familiar and customary location next to his mother’s apartment at 11:00 p.m. when two patrol cars pulled into the parking lot with their headlights and a spotlight on him, and two uniformed and armed police officers walked toward him. That situation was inherently frightening for an individual with Jackson’s limitations.

D. The Trip to the Police Station

Lukowiez and the other officers departed from the parking lot at Joyal’s to drive to the stationhouse of the West Warwick Police Department. Lukowicz’s vehicle contained only Lukowicz and Jackson. (Id. vol. 1, 73,157; id. vol. 2,112.)

Chief Silva testified at trial that, since at least December 2006 and perhaps as early as 2000, the West Warwick Police Department provided literature to its officers directing them to be vigilant for four categories of warning signs that indicate that suspects may be at risk for sudden, in-custody death. (Id. vol. 8, 145-46, 148-49; Ex. 15.) Each of these four categories of indicators was present during the officers’ altercation with Jackson. (Trial Tr. vol. 8, 150-51.) Moreover, since 2001, a written general order of the West Warwick Police Department also instructed officers to be vigilant that individuals who had been pepper sprayed were at risk of positional asphyxia and, if possible, to transport them in an upright position to reduce that risk. (Id. vol. 4, 171-73; Ex. 4f.) Transporting officers were trained that, if the prisoner was not upright, they were required to monitor him to make sure that he was still breathing and did not lose consciousness. (Trial Tr. vol. 4, 178-79.)

The trip from the parking lot at Joyal’s to the West Warwick Police Station is less than one mile, and it took the officers about one minute. (Id. vol. 1, 158; id. vol. 2, 112; id. vol. 8, 176.) When Jackson was initially placed in Lukowicz’s back seat and Lukowicz started the drive to the station, Lukowicz heard noises from the back seat, indicating that Jackson was moving around and making sounds. (Id. vol. 2, 113.) When they were approximately halfway up Brookside Avenue, however, all sound from the back seat ceased. (Id. vol. 2, 146; id. vol. 4, 155.) Although Lukowicz acknowledged that Jackson had stopped making any noise, he did not notice that Jackson had become unresponsive during the ride to the police station. (Id. vol. 4, 143.) Lukowicz could not see Jackson because of the way he had been placed in the back seat. (Id. vol. 4, 143-44.)

The Court accepts the opinion of Plaintiffs expert, Kevin Brown, M.D., a Board-certified emergency medicine doctor, with which Defendants’ expert Dr. Wetli agreed, that Jackson probably stopped breathing en route to the station, based on Lukowicz’s testimony as to when all sounds of movement or other noises stopped while he was transporting Jackson. (Id. vol. 4, 93; id. vol. 7, 73-74.) Given the testimony of the officers that the trip at that time of night took them approximately one minute, the Court finds that Jackson suffered a sudden cardiac arrest thirty seconds prior to his arrival at the station.

While they were en route to the station, Kelley radioed ahead and told the dispatcher to notify the officer in command that he was returning to the station with a “very large EDP,” meaning emotionally disturbed person, and to ask the officer in command to meet them downstairs at the station. (Id. vol. 2, 118; Ex. 8b at 5.)

E. The Back Lot

When Lukowicz arrived at the police station, he exited his patrol car without checking on Jackson in the back seat. (Trial Tr. vol. 4, 130; Ex. 1 at 21.) The WWPD standing orders at that time required the officer in command at the station, together with the arresting officer, to assess the condition of an intoxicated or mentally impaired arrestee upon arrival at the station. (Ex. 4e at 3.) Sergeant Scott Thornton was the officer in command at the station that night. (Ex. 85 at 10.) Thornton testified that he did not assess Jackson upon his arrival at the station. (Id. at 23-24, 39.) Instead, Thornton waited at the stationhouse door and initially relied upon Kelley’s description of Jackson as “completely out of control.” (Ex. 3 at 6.) Thornton testified that he did not evaluate Jackson immediately because he was not aware at the time of this general order, though he acknowledged that he had read it before. (Ex. 85 at 34, 38, 43-44.) Thornton had been promoted from patrolman to sergeant about one month prior to this incident and had been acting in that supervisory capacity for approximately two weeks. (Id. at 30-31.) As members of the WWPD, the officers were required to be familiar with and follow all general orders. (Ex. 4c.)

The arrival of Kelley and Lukowicz at the WWPD stationhouse is depicted in a video that was recorded by a camera posted on the back door of the stationhouse; the camera is routinely recording. (See Ex. 12.) The video is critical to establishing many of the facts concerning what occurred outside of the stationhouse that night.

The video depicts Kelley, six seconds after arrival (00:06), getting out of his patrol car and glancing in the rear, passenger-side window of Lukowicz’s vehicle. (Trial Tr. vol. 1, 88-90, 197; Ex. 12.) Kelley testified at trial, and informed the State Police shortly after Jackson’s death in the early morning hours of June 28, 2008, that when he looked through the window, he observed that Jackson was not moving or making any noise. (Trial Tr. vol. 1, 88-90, 195-98; id. vol. 2, 12; Ex. 2 at 23.) He testified that Jackson appeared to be unconscious. (Trial Tr. vol. 1, 90.) However, Kelley did not open the doors to the patrol car to assess Jackson. (Ex. 12.) Instead, Kelley and Lukowicz went into the stationhouse to secure their service weapons. (Ex. 1 at 21-22; Ex. 2 at 24.) Kelley testified that they put their weapons away because Jackson was “so combative on scene.” (Trial Tr. vol. 1, 165.) At the time, the standing orders of the West Warwick Police Department required officers to secure their firearms in the locked box inside the station prior to removing combative prisoners from their vehicles. (Ex. 4e.) Officer Lukowicz testified that he secured his firearm inside the station before attending to Jackson due to this policy. (Trial Tr. vol. 4,138-39.)

The officers then returned to the vehicle, with other officers accompanying them, at 00:44 after arrival. (Ex. 12.) At approximately 00:53 after arrival, Thomas Nye opened the rear, driver-side door and Kelley opened the rear, passenger-side door of the vehicle transporting Jackson. (Ex. 1 at 22; Ex. 2 at 25; Ex. 12.) Thomas Nye ordered Jackson to get up, to which there was no response, at approximately 00:56 after arrival. (Trial Tr. vol. 8, 191; Ex. 12.)

On the video, the officers appear to be further assessing Jackson from 01:00 to 01:11. (Ex. 12.) When they opened the door, Kelley and Thomas Nye leaned into the back seat, while Lukowicz leaned into the driver’s seat to retrieve his flashlight. (Trial Tr. vol. 2,151.)

Lukowicz used his flashlight to check on Jackson at 01:20 after arrival. (Ex. 12.) Between 01:27 and 01:43, the video depicts officers leaning into the patrol car from either side of the vehicle. (Ex. 12.) Kelley shook Jackson’s legs, and Lukowicz shook Jackson’s head and shoulders. (Trial Tr. vol. 1, 105; Ex. 1 at 22; Ex. 2 at 25.) They both called out to Jackson. (Trial Tr. vol. 1,105; Ex. 2 at 25.)

At trial and during his formal questioning by the Rhode Island State Police immediately after the incident, Kelley stated that when they determined that Jackson was unresponsive in the back seat of Lukowicz’s patrol car, he saw Lukowicz check Jackson’s neck for a pulse and Lukowicz informed Kelley there was no pulse. (Id. vol. 1, 105-07; Ex. 2 at 25.) At trial, Lukowicz did not recall whether he checked Jackson’s pulse at this time. (Trial Tr. vol. 2, 125.) The Court credits Kelley’s statement to the Rhode Island State Police.

The parties dispute when the officers first contacted the police department dispatcher to request rescue, and when the fire department dispatcher, in turn, contacted fire department personnel. There are timed audio recordings of the exchanges between the police officers and the police department dispatcher, and a separate timed audio recording of the exchanges between the fire department dispatcher and fire department personnel. (See Ex. U; Ex. V.) The video of the back lot, as discussed above, also has a timer. However, the timers on these three recordings are not synchronized. Moreover, the WWPD dispatcher has a dedicated line to the dispatcher for the West Warwick Fire Department (“WWFD”) that is not recorded by either the police department or the fire department. (Trial Tr. vol. 9, 48.) Accordingly, there is no recording, timed or otherwise, of the exchanges between the police department dispatcher and the fire department dispatcher.

The parties stipulated that the police dispatcher contacted the fire dispatcher immediately after the officers attending to Jackson contacted the dispatcher and informed the fire dispatcher of what the officers at the scene were reporting. (See Stipulation, Dec. 1, 2011, ECF No. 137.) The fire dispatcher testified that his custom and practice was to immediately dispatch calls and that he was not aware of anything that interfered with that here. (Trial Tr. vol. 9, 82-84.) However, as the synchronized times demonstrate (and irrespective of the parties’ stipulation), the Court has determined that there was a lag by one or both of the dispatchers in relaying the pertinent information.

After considering all of the testimony on the subject and scrutinizing Plaintiffs and Defendants’ proposed chronologies, the Court concludes that the video and the two audio recordings must be synchronized as follows and finds the following facts with respect to the timing of events as revealed by the recordings. The reader may be guided by referring to the appendix at the end of this decision, which sets forth a timeline of selected key events.

The video depicts Officer Kelley beginning chest compressions on Jackson at 23:14:50 on the video timer, which is 04:20 after the officers arrived at the station with Jackson. (Ex. 12.) Officer Kelley performed chest compressions for three seconds, at which point WWFD Private Cahoon appears on the video screen, checking Jackson’s pulse at 23:14:54, which is 04:24 after arrival. (Trial Tr. vol. 6, 172; Ex. 12.) Private Cahoon and Lieutenant Croft both testified that when they saw the officer doing chest compressions, Cahoon called the fire department dispatcher and said “Engine 1 to rescue. It appears to be a code.” (Trial Tr. vol. 6, 190; id. vol. 9, 101.) Cahoon’s call is recorded on the fire department audio recordings as occurring from 1:54 to 1:57 on the fire department audio timer. (Ex. V.) Based on this testimony, the visual depiction of Kelley performing chest compressions (23:14:50 to 23:14:53 on the video timer) and the audio recording of Cahoon telling rescue dispatch that it appeared to be a code (1:54 to 1:57 on the fire department audio timer) occurred simultaneously, between 04:20 and 04:23 after arrival. This serves as a common point of reference to correlate earlier events depicted on the video with events recorded on the audio of the fire department dispatcher.

The events on the video can also be correlated to the audio recording of the West Warwick Police Department dispatch calls that evening. On the video, it is clear that Palazzo speaks into the radio on his lapel at 02:22 after arrival. As explained below, the only conclusion consistent with both the substance of the calls and the testimony at trial is that Palazzo was in the midst of the second call he made to the police dispatcher about Jackson, which occurred at 23:14:53 on the WWPD audio timer.

Palazzo testified that he made the initial call for rescue on Thornton’s order. (Trial Tr. vol. 4, 179-80.) Palazzo and Thornton were standing inside the stationhouse near the gun lockers when Thornton told Palazzo to call the dispatcher and have rescue respond to the back lot. (Id. vol. 4, 186; Ex. 3 at 7-8; Ex. 85 at 46.) The amount of time that elapsed between the time Jackson arrived at the West Warwick Police Station and the time that Palazzo first called the police dispatcher requesting medical assistance was one minute and fourteen seconds. Palazzo’s first transmission was “seventy-five to headquarters.” Palazzo next asked the police department dispatcher, “Can you start another rescue downstairs for this male?” (Ex. 8b at 6.) Over the next seventeen seconds, the police dispatcher contacted the fire department dispatcher with this information, the fire department dispatcher asked the police dispatcher for the reason rescue was needed, and the police dispatcher conveyed that inquiry to Palazzo. (Id.) Palazzo responded: “Possible ... minor injuries and intoxicated male, unconscious male.” (Trial Tr. vol. 4, 187.) Palazzo was still inside the stationhouse during this transmission. (Id. vol. 4, 188.) The entire call between Palazzo and the police dispatcher took thirty-four seconds. (Ex. U.)

The fire dispatcher and engine company personnel testified that a call to respond to an intoxicated and passed-out or unconscious individual behind the police station was a routine call, which would require no particular urgency, in response to which an ambulance would transport the individual to the local hospital for detoxification. (Trial Tr. vol. 5, 125; id. vol. 9, 66-67, 76.) Captain Alfred Peterson, a member of the North Providence Fire Department and Plaintiffs expert, agreed that from the point of view of rescue personnel, there was no difference between being told that a subject was intoxicated and unconscious and being told that he was intoxicated and passed-out. (Id. vol. 8, 69-70.) Accordingly, the initial dispatch from the fire dispatcher was directed solely to rescue (the ambulance), which was out on another call at the time. (Id. vol. 6,160.)

Back outside in the back lot of the station, at 01:51 after arrival, Thornton ordered Jackson’s removal from the vehicle. (Ex. 12.) It took the officers eight seconds to remove Jackson from the cruiser (from 01:55 to 02:03 after arrival), and he was placed on the ground, initially in a sitting position leaning against the patrol car. (Id.) From the first moment he is visible on the video, it is obvious that Jackson was unconscious. (Id.)

Palazzo walked outside after his initial transmissions and arrived just as the other officers were pulling Jackson from the rear of the vehicle. (Trial Tr. vol. 4, 188.) Palazzo appears on the video screen at approximately 01:46 after arrival and shortly thereafter assists the other officers in removing Jackson from the cruiser. (Ex. 12.) As noted above, the video depicts Palazzo speaking into the radio clipped to his collar lapel 02:22 after arrival. (Id.) Palazzo testified that this depicts him contacting the police dispatcher concerning Jackson. (Trial Tr. vol. 4, 181-82.)

Palazzo radioed to dispatch: “Seventy-five can you have rescue step it up.” (Id. vol. 4, 191.) This call occurred at 02:22 after arrival, or approximately one minute and eight seconds after Palazzo’s initial call to rescue. It was not until then that the fire department engine company personnel, who were in the fire station, had reason to think that there was a potentially life-threatening emergency occurring in the parking lot behind the West Warwick Police Station. (Id. vol. 5, 129-30; id. vol. 6,162.)

The video further depicts Kelley attempting to take Jackson’s pulse at 02:32 after arrival; the officers rolling Jackson onto his side at 03:16 after arrival; the officers removing Jackson’s handcuffs at 03:21 after arrival; and the officers again rolling Jackson onto his back 03:48 after arrival. (Ex. 12.)

The video lacks audio recording. However, it clearly depicts Kelley, Lukowicz, Thornton, Palazzo, Thomas Nye, and Michael Nye speaking among themselves as they circle around Jackson or stand over him. (Ex. 12.) In addition, the video depicts that, at one point (03:48 after arrival), Michael Nye appears on screen holding a barrier mask, which is used in giving mouth-to-mouth resuscitation. (Trial Tr. vol. 4, 189; Ex. 12.) During the next thirty-two seconds on the video, Michael Nye holds the mask, then squats down next to Jackson with the mask in hand, and then stands up and walks around, before Kelley starts chest compressions. (Ex. 12.) Michael Nye testified that he was waiting for instruction. (Trial Tr. vol. 9, 20.)

Both from what is depicted on the video and from common understanding of such urgent circumstances, it is obvious that Defendants and the other officers were discussing whether to perform cardiopulmonary resuscitation (“CPR”) over the seconds and minutes leading up to Kelley’s perfunctory administration of chest compressions just as he saw rescue arrive. Nevertheless, Kelley, Lukowicz, Palazzo, Michael Nye, and Thomas Nye all testified at trial that that they could not recall any discussion, comments, or statements by anyone regarding when or whether CPR should be performed or by whom, up until the moment immediately before Kelley actually started CPR. (Id. vol. 2, 21-22; id. vol. 4, 197; id. vol. 8, 202-04; id. vol. 9, 39.) Thornton did testify that, “obviously, we’re talking amongst ourselves while we’re trying to get Mark Jackson out of the vehicle.” (Ex. 85 at 20.)

The Court finds this collective lack of recollection not credible and that it reflects a probable “code of silence” as to what the officers were discussing. These Defendants and their fellow officers had little difficulty recalling other events and statements that tended to support Defendants’ position. Failing to recall even the general nature of any conversation or discussion (let alone the specifics) regarding CPR where the video clearly shows they were talking and exchanging a barrier mask, under circumstances that begged for a discussion of that topic, is simply not believable. These officers’ collective failure to recall the conversations that were obviously taking place on this subject supports the inference that such discussions would have shown that Defendants were, at that point, considering whether they should administer CPR.

At approximately 04:20 after arrival at the station, Kelley made the first attempt by any officer to perform CPR on Jackson. (Ex. 12.) That attempt consisted of five or six quick chest compressions over a period of approximately three seconds, at which point fire department personnel took over. (Id.) Kelley saw the fire department personnel arriving before he started chest compressions. (Trial Tr. vol. 1, 176.) It appears from the timing of Kelley’s action, and the Court so finds, that Kelley was motivated to perform CPR by guilty recognition that he, or one of the other officers, should be seen performing CPR when fire department personnel arrived.

WWFD firefighters Lieutenant Croft and Private Cahoon arrived on scene 04:20 after arrival; because of the angle of the camera, however, Private Cahoon does not appear on the video until 04:24 after arrival. (Id. vol. 9, 101; Ex. 12.) Lieutenant Croft took over chest compressions, and Private Cahoon set up an automatic external defibrillator (“AED”), which was activated at 05:28 after Jackson’s arrival at the station. (Trial Tr. vol. 9, 97; Ex. 12.) The engine company was on the scene with the AED approximately two minutes after Palazzo’s call to expedite and activated the AED within another minute. At that point, however, the device registered that Jackson’s heart had no shockable rhythm, meaning that his heart rhythm was asystole. (Trial Tr. vol. 5, 132; id. vol. 6, 163; Ex. 12.)

Jackson was transported to the hospital by ambulance. During the trip, the paramedics attempted to resuscitate him. (Ex. 88.) Their efforts briefly took his heart from asystole into ventricular fibrillation, but the AED could not shock his heart into normal rhythm, and he quickly lapsed back into asystole. (Ex. 88.) Jackson arrived at the emergency department at 11:41 p.m., according to hospital records; this was approximately thirty minutes after Jackson and the officers arrived by car in the back lot. (Ex. 89.) Records further reflect that Jackson was pronounced dead at the hospital at 11:44 p.m. (Id.) His death certificate states 11:44 p.m. as the “hour of death.” (Ex. 87.)

For the benefit of the discussion and analysis found infra at Part II (Conclusions of Law), the Court makes the following findings regarding what reasonable officers in Thornton’s, Lukowicz’s, and Kelley’s positions would have done in the circumstances presented, correlated to the timing sequence depicted above.

The Court finds that reasonable officers in Kelley and Lukowicz’s position would have hurriedly secured their guns in the stationhouse; returned to Lukowiez’s patrol car with Thornton; and assessed Jackson within 01:00 of arrival. Moreover, within this same time period, a reasonable officer in Thornton’s position would have approached Jackson and assessed him independently, not merely relied upon the other officers’ representations. The video confirms that this is more than a reasonable amount of time to accomplish these tasks, although (as the video further confirms) these actions ideally would have occurred even more quickly in light of the gravity of Jackson’s situation and the knowledge the officers had about Jackson’s high risk for cardiac arrest. Within about fourteen seconds of that time, and corresponding to Palazzo’s first call to rescue at 01:14 after arrival, reasonable officers trained in CPR would have called rescue with a message to respond expeditiously, because they had a detainee who was blue and pulseless, and they would have begun taking steps to remove Jackson from the vehicle in order to perform CPR themselves. Within the seconds leading up to 01:14, Thornton, if he was acting like a reasonable and competent officer, would have both ordered an officer to start CPR (or prepared to administer it himself) and called rescue to convey the seriousness of the situation. With respect to the call to rescue, Palazzo did make his first call to rescue at 01:14, on Thornton’s order; however, the failure of Thornton, Lukowicz, and Kelley to competently assess Jackson and communicate to Palazzo the gravity of the situation prevented Palazzo from communicating to rescue at 01:14 that Jackson was not breathing and unconscious, but that this was not due to intoxication.

From there, reasonable officers would have ensured that Jackson was out of the car and CPR was started by 01:45. On the video, it is clear that thirty seconds is a reasonable amount of time in which this could have occurred. This reasonable timeline eliminates the twenty seconds of inaction the officers wasted before removing Jackson from the patrol car.

To this, Defendants argue that [t]he evidence adduced at trial shows that Defendants, while still unaware that Mr. Jackson was under any sort of distress, summoned medical aid. Once Defendants became aware that Mr. Jackson’s condition was serious, they instantly took steps to expedite medical assistance. And when they realized that Mr. Jackson’s condition was perilous, they themselves rendered, firsthand, what medical treatment they could.

(Defs.’ Post Trial Mem. 56-57, ECF No. 152.) But the video speaks for itself and belies this generous rendition. The video reflects that over the four minutes and twenty seconds that Jackson was unconscious, appeared blue, and was without a pulse in the rear parking lot of the West Warwick Police Station before rescue arrived, Kelley, Lukowicz, and the other officers on scene acted without urgency or focus. (Ex. 12.) Although they took various actions such as removing Jackson from the cruiser, eventually placing Jackson on his back, later turning him over to remove his handcuffs, and turning him again onto his back, none of these actions addressed Jackson’s fundamental, and obvious, need for CPR and AED.

As discussed in more detail below, see infra Part II.E.3.a, had these officers acted reasonably, CPR would have started 01:45 after arrival (or 02:15 after Jackson suffered cardiac arrest); this accounts for a proper call to rescue at 01:14 to respond expeditiously and the application of the AED at 04:20 after arrival (or 04:50 after he suffered cardiac arrest). Moreover, the evidence adduced at trial, as outlined below, demonstrates that it is more likely than not that Jackson’s life would have been prolonged if he had received a shock from the AED at 04:20 after arrival.

F. CPR Training

Kelley, Lukowicz, and Thornton were each trained and certified at the Rhode Island Municipal Police Academy in first aid, including CPR, under the HeartSaver Program of the American Heart Association, and they were recertified six months prior to the incident, in December 2007. (Trial Tr. vol. 1, 78-80; id. vol. 2, 120-21; Exs. 13, 14, 20, 23, 24, 25, 27.) Then-training taught them how to promptly assess an individual to determine if that individual needed CPR and the necessity of and technique for promptly beginning CPR if CPR was needed. (Trial Tr. vol. 1, 86-87; id. vol. 2, 10, 122-23, 128; id. vol. 4, 141-42, 154.) The General Orders of the West Warwick Police Department state that, “[t]he West Warwick Police Department recognizes the fact that when CPR and defibrillation are administered to a person who had been stricken with cardiac arrest during the early stages of the attack, the survival rate of the victim greatly increases.” (Ex. 4g at 1.) Accordingly, WWPD’s written policy was “to train its police officers in CPR and the proper use of AEDs....” (Id.)

The Department did not have AED equipment on June 27, 2008, and there were no defibrillators in the cruisers used by the officers involved. (Trial Tr. vol. 1, 175-76.) Lukowicz acknowledged at trial that he and Kelley, at all times, had the right to commence CPR on Jackson if they felt that it was necessary, notwithstanding that the officer in command, Thornton, was present at the scene. (Id. vol. 4, 209.) Moreover, both Kelley and Lukowicz admitted that they understood that they were obligated to provide CPR if Jackson needed it. (Trial Tr. vol. 1, 121; id. vol. 2, 129-30.) They acknowledged that CPR should be started as soon as possible once it is clear that a person in custody needs it. (Id. vol. 1, 87; id. vol. 4, 141-42.) Lukowicz also testified, at his deposition and again at trial when he was called as an adverse witness, that there was “no reason” why he did not perform CPR on Jackson. (Id. vol. 2, 130.) In response to his counsel’s question on cross-examination at trial, however, Lukowicz inconsistently testified that he did not commence CPR because he knew that rescue had been called. (Id. vol. 4, 130.) But, he also testified that he did not know who called rescue or when rescue was called. (Id. vol. 4, 142.)

At trial, Kelley testified that the reason he did not perform CPR prior to when he did was that he feared Jackson was feigning unconsciousness and was still combative, he was not sure if it was needed, and he believed it would not take rescue long to arrive because they were nearby (approximately one hundred feet away). (Id. vol. 1, 121, 170-74, 206.) This is inconsistent with Kelley’s trial testimony that he and Lukowicz had determined that Jackson was unresponsive and pulseless in the back seat of the patrol car. (Id. vol. 1, 105.) Kelley acknowledged that he knew the absence of a pulse meant the heart was not circulating blood. (Id. vol. 2, 45.) Moreover, in his formal questioning by the State Police immediately after the incident, Kelley stated that, upon the determination in the back seat that Jackson was unresponsive and pulseless, Jackson was promptly removed from the vehicle, his handcuffs were taken off, and CPR was started. (Ex. 2 at 25-26.) During that interview, Kelley did not mention any delay or fear that Jackson was feigning unconsciousness. (See generally id.)

It was only after Kelley viewed the video, which shows a substantial delay in starting CPR, that he sought to explain this delay by contending it was due to fear that Jackson was feigning unconsciousness. The Court rejects Kelley’s claim that he believed Jackson was feigning and was still combative even after he and Lukowicz determined that Jackson was unresponsive and pulseless in the back seat of the cruiser. Accordingly, the Court rejects Kelley’s trial testimony explaining why he delayed in performing CPR.

G. The Cause of Jackson’s Death

1. Excited Delirium

Defendants contend that Jackson died from “excited delirium syndrome,” rather than from sudden cardiac arrest due to primary cardiac disease. Plaintiffs experts, Peter Gillespie, M.D., the Assistant Medical Examiner who performed the autopsy and issued the initial Autopsy Report and Death Certificate for Jackson, and Dr. Brown both testified that the cause of death was sudden cardiac arrest due to primary cardiac disease, not excited delirium syndrome. This dispute goes directly to the issue of whether the officers’ failure to render emergency assistance in a timely fashion was a proximate cause of Jackson’s death.

Excited delirium syndrome has at least two diagnostic criteria: a high level of agitation and delirium consisting of an altered state of consciousness. (Trial Tr. vol. 6, 57; id. vol. 7, 172-73.) Dr. Pinals testified that excited delirium syndrome involves an altered state of consciousness and agitation over a period ranging from hours to days, which, in this case, would necessarily precede the involvement of the police. (Id. vol. 5, 29.) Jackson, although clearly agitated during the altercation with the police, was not agitated before they arrived. To the contrary, he was merely smoking a cigarette in accordance with his usual routine on a day when he appeared to be functioning within his normal limits. Jackson also did not have an altered state of consciousness before the altercation with police. Moreover, once the altercation began, Jackson started walking away from the police toward his mother’s apartment, indicating that he was oriented to time and space. (Id. vol. 7, 179.) He questioned Lukowicz and Kelley “why are you guys doing this to me,” which indicates that he was not delirious. (Id. vol. 6, 70.) Dr. Pinals opined that Jackson’s behavior that night was normal for a chronic schizophrenic with Jackson’s limitations; Dr. Wetli testified that he was not an expert on schizophrenia and could not form an opinion on the matter. (Id. vol. 5, 31-32, 37-39; id. vol. 7, 175, 177.) The Court accepts Dr. Pinals’s opinion that Jackson was not delirious either prior to or during the altercation with the police. (Id. vol. 5, 31-32.)

Dr. Wetli testified that excited delirium syndrome can arise instantly in response to police involvement and that it did so in this case. (Id. vol. 7, 143, 155.) However, all of the published literature admitted into evidence at trial, including several articles Dr. Wetli authored or co-authored, involved cases where the agitated behavior preceded police involvement. (Id. vol. 7, 144, 150; Exs. 76-78.) The Court rejects Dr. Wetli’s testimony that excited delirium syndrome arose instantly in the circumstances of this case, or that Jackson’s behavior during the altercation with police tends to prove he had excited delirium syndrome.

Dr. Wetli further testified that death by excited delirium syndrome does not create any findings discernible upon autopsy. (Trial Tr. vol. 7, 22.) Instead, the pathological diagnosis is based primarily upon accounts of the decedent’s behavior. (Id. vol. 7, 22-23.) Dr. Gillespie testified that excited delirium syndrome as a cause of death can only be used as a diagnosis of exclusion, meaning that it can only be made if there are no positive signs at autopsy of conditions sufficient to cause death independent of excited delirium syndrome. (Id. vol. 6, 29-30, 40.) An excerpt from a treatise by Vincent DiMaio, M.D., on excited delirium syndrome also expresses this opinion, and Dr. Wetli agreed that Dr. DiMaio is an expert on this subject. (Ex. 65; Trial Tr. vol. 7, 97.) If this opinion is correct, then it is highly likely that Jackson’s cause of death was sudden cardiac arrest from primary cardiac disease, and excited delirium syndrome should be ruled out as the cause of death, because the autopsy was positive for sudden cardiac arrest due to primary cardiac disease.

Dr. Wetli testified to the contrary, however, stating that he disagreed “100%” with the contention that excited delirium syndrome is a diagnosis of exclusion. (Trial Tr. vol. 7, 90.) He claimed never to have used the term “diagnosis of exclusion.” (Id. vol. 7, 96.) However, during cross-examination, Dr. Wetli admitted that on several occasions in other cases in which he testified in defense of police officers, he testified that the diagnosis of death by excited delirium syndrome requires a negative autopsy. (Id. vol. 7, 110, 115, 118.) In these cases, he testified that a negative autopsy was one of the diagnostic criteria for diagnosing excited delirium syndrome as a cause of death. (Id. vol. 7, 118.) The Court rejects Dr. Wetli’s testimony that excited delirium syndrome is not a diagnosis of exclusion and concludes that it is a diagnosis of exclusion; here, death from sudden cardiac arrest due to primary cardiac disease has not been excluded, and therefore, the diagnostic criteria for excited delirium are not present.

For the reasons above and those that follow, the Court finds that Jackson died of sudden cardiac arrest due to primary cardiac disease and that he did not experience excited delirium syndrome. The Court does not find that Jackson necessarily died when Plaintiff suggests, i.e., at the time of death indicated in the emergency room records and the death certificate. However, the Court does conclude that the ambulance run report establishes that Jackson was alive in the ambulance because his heart briefly went into ventricular fibrillation on the way to the hospital. (Ex. 88.)

2. Sudden Cardiac Arrest

The testimony at trial was that there are, on average, several hundred thousand deaths per year in the United States due to sudden cardiac death from primary cardiac disease. (Trial Tr. vol. 4, 61.) Dr. Wetli agreed that Jackson was at a greatly elevated risk for sudden cardiac death due to his cardiac abnormalities. (Id. vol. 7, 63-67.) He also agreed that the altercation with the police was sufficient to precipitate such a death. (Id. vol. 7, 66.) Nevertheless, Dr. Wetli concluded that Jackson died from excited delirium syndrome rather than sudden cardiac arrest due to primary cardiac disease. Dr. Wetli’s Rule 26 report and his testimony before this Court at a pre-trial Daubert hearing was that this opinion was based in large part upon his conclusion that Jackson’s initial rhythm after his sudden cardiac arrest was asystole rather than the ventricular fibrillation that is usually involved in sudden cardiac death from primary cardiac disease. (Id. vol. 7, 72.) For example, Dr. Wetli’s report stated his opinion that the scenario involving Jackson had “all of the ingredients for a sudden unexpected cardiac death” except for the fact that “the expected heart rhythm for a sudden cardiac death is ventricular fibrillation, not asystole as seen in this case.” (Id. vol. 7, 62-63, 69.)

However, Dr. Wetli issued his report before he saw the video. (Id. vol. 7, 74.) At trial, Dr. Wetli conceded during cross-examination that the absence of any shock-able rhythm at the time the AED was activated showed “nothing” with respect to Jackson’s initial presenting rhythm, because that occurred more than six minutes after Jackson’s cardiac arrest. Therefore, even if Jackson’s heart rhythm initially had been ventricular fibrillation, that rhythm would have deteriorated to asystole by the time the AED was activated six minutes later. (Id. vol. 7, 127.) The Court accepts Dr. Wetli’s testimony upon cross-examination and the testimony of Plaintiffs experts that the absence of a shockable rhythm when the AED was activated in this case is not a conclusive indicator of Jackson’s initial heart rhythm when he suffered the cardiac arrest, and it does not tend to rule out sudden cardiac arrest due to primary cardiac disease as the cause of death.

Dr. Gillespie testified that Jackson died from sudden cardiac arrest due to cardiac ischemia, precipitated by the altercation with the police. (Id. vol. 6, 23.) The report was also signed by the Medical Examiner, Charles Gilson, M.D., on behalf of Dr. Gillespie (who had left the Medical Examiner’s Office by the time the report was issued), and the report, according to Dr. Gillespie, therefore represents the opinion of Dr. Gilson as well. (Id. vol. 6, 22-23; Ex. 5.)

The autopsy and supporting records show several cardiac abnormalities, including an enlarged heart, a seventy-five percent stenosed coronary artery, and focal fibrosis to the ventricle, which all experts agreed increased Jackson’s chances of ischemia and cardiac arrest if he physically exerted himself. (Trial Tr. vol. 4, 55-56; id. vol. 6, 25-27; id. vol. 7, 62-65; Ex. 5.) In addition, Jackson smoked tobacco products and was overweight, both of which increased the risk of sudden cardiac arrest, especially upon exertion. (Id. vol. 4, 56.)

Dr. Gillespie and Dr. Brown both testified that if Jackson had not been in an altercation with the police, he would not have died. (Id. vol. 4, 57; id. vol. 6, 34-35.) They explained that such physical exertion placed demands upon the heart that Jackson’s heart was unable to withstand. (Id. vol. 4, 55-56; id. vol. 6, 33.) While Dr. Wetli did not go that far, he agreed that the altercation was sufficient to provoke a sudden cardiac arrest in Jackson. (Id. vol. 7, 66.) The Court finds that Jackson’s physical altercation with the police was a substantial contributing factor of his suffering a sudden cardiac arrest.

H. The Life-Saving Potential of AED and CPR

Expert testimony was presented at trial on the critical issue of what impact, if any, earlier deployment of CPR and AED would have had on the likelihood that Jackson would have survived. Much of this tes