United States District Court, D. Maryland
MARTHA BOYD, et al. Plaintiffs,
TYLER ARMSTRONG, et al. Defendants.
L. Hollander United States District Judge.
civil rights case arises from the unfortunate death of
twenty-one-year-old Tawon Boyd ("Mr. Boyd" or the
"Decedent") on September 21, 2016, three days after
an encounter with Baltimore County police on September 18,
2016. ECF 2 (the "Complaint"). In an Amended
Complaint (ECF 16), plaintiffs Martha Boyd, the
Decedent's mother, individually and as the Personal
Representative of the Estate of Mr. Boyd, and Deona Styron,
the Decedent's fiance, individually and on behalf of Mr.
Boyd's minor child, T.B., sued Baltimore County, Maryland
(the "County"), as well as paramedic Kenneth Burns;
emergency medical technician Tyler Armstrong (collectively,
the "Medics" or the "Medic Defendants";;
former Baltimore County Police Chief James W. Johnson,
individually and in his official capacity; and several
Baltimore County officers, individually and in their official
capacities: Michael Bowman, D. Garland, Pearin D. Holt, Bryn
M. Blackburn, and Joseph Seckens (collectively, the
"Officer Defendants" or the "Officers").
early morning hours of September 18, 2016, Mr. Boyd
"called 911 requesting assistance with what he believed
to be an intruder in his home" in Baltimore County. ECF
16, ¶ 10. Plaintiffs allege, inter alia, that
when the Officers arrived at Mr. Boyd's home, they
unlawfully detained him and subjected him to excessive force.
Id. ¶¶ 18-31. The
Complaint further asserts that the Medics inappropriately
administered an antipsychotic drug, Haloperidol
("Haldol"), to Mr. Boyd, causing cardiac arrest and
multi-organ failure. Id. ¶ 43. Mr. Boyd was
transported to a hospital, where he died three days later.
Id. ¶¶ 49-54.
Amended Complaint is structured as two claims with multiple
counts. Claim I is labeled as a "Survival
Action" and consists of six counts. Count I
("Assault") and Count II ("Battery") are
filed against the Officers and the Medics. Id.
¶¶ 65-78. Count III is lodged
under 42 U.S.C. S 1983 against the Officers and the Medics,
asserting violations of the Fourth Amendment, the Fourteenth
Amendment, and Articles 24 and 26 of the Maryland Declaration
of Rights. Id. ¶¶ 79-82.
Count IV asserts a claim against Chief Johnson and the County
for "Negligent Supervision, Training, Retention and
Custom or Policy of Deliberate Indifference."
Id. Count V, lodged against the Medics, alleges
"Gross Negligence" Id.
¶¶ 95-102. Count VI, as to all
defendants, seeks recovery of funeral expenses. Id.
¶¶ 103-05. Claim II asserts a
"Wrongful Death" action against all defendants.
Id. ¶¶ 106-09.
County has moved for summary judgment, pursuant to
Fed.R.Civ.P. 56. ECF 43. The motion is supported by a
memorandum of law (ECF 43-1) (collectively, the
"County's Motion") and two exhibits. ECF 43-2 -
ECF 43-3. Plaintiffs oppose the County's Motion (ECF 46),
supported by several exhibits. See ECF 46-3
("Notice of Lengthy Filing"). The County has
replied (ECF 49) and submitted an additional exhibit. ECF
Medic Defendants have also moved for summary judgment (ECF
44), supported by a memorandum of law (ECF 44-1)
(collectively, Medics' Motion) and numerous exhibits. ECF
44-3 - ECF 44-16. Plaintiffs oppose the Medics' Motion
(ECF 48), accompanied by numerous exhibits. See ECF
48-3 ("Notice of Lengthy Filing"). The Medics have
replied (ECF 51), and submitted another exhibit. ECF 51-1.
Officers moved only for partial summary judgment, with
respect to Count III, limited to the issue of whether they
had probable cause to seize and detain Mr. Boyd for an
emergency mental health evaluation. ECF 45. The motion is
supported by a memorandum of law (ECF 45-I) (collectively,
the Officers' Motion) and several exhibits. ECF 45-3 -
ECF 45-15. Plaintiffs oppose the Officers' Motion (ECF
47), supported by exhibits. See ECF 47-3
("Notice of Lengthy Filing"). The Officers
replied (ECF 50) and submitted additional exhibits. ECF 50-1
- ECF 50-3.
pending is plaintiffs "Motion to Strike Defendants'
Expert Reports and to Exclude Defendants' Proposed
Experts from Participation at Trial," pursuant to
Fed.R.Civ.P. 37(c)(1.. ECF 38. The motion is supported by a
memorandum of law (ECF 38-1) (collectively, the "Motion
to Strike"). Plaintiffs contend that defendants'
expert reports are "untimely, improper, and should be
stricken as unduly prejudicial," for failure to comply
with the disclosure requirements of Fed.R.Civ.P. 26(a)(2).
ECF 38-1 at 4. Defendants oppose the Motion to Strike (ECF
39), supported by four exhibits. ECF 39-1 - ECF 39-4.
Plaintiffs did not reply, and the time to do so has passed.
See Local Rule 105.2(a).
addition, pursuant to Fed.R.Civ.P. 56(c)(2), plaintiffs filed
an "Objection to and Motion to Strike [ECF] 50-3"
(ECF 52, "Objection"), supported by exhibits. ECF
52-2 - ECF 52-3. The Objection concerns ECF 50-3, titled
"Baltimore County Police Department Standard Operating
Procedure," which is an exhibit appended to the
Officers' reply. Plaintiffs assert that ECF 50-3 it is
"not self-authenticating" and is therefore
"inadmissible." ECF 52, ¶ 9. Further, they
argue that they "have not had the opportunity to rebut
or challenge the contents of the newly revealed
material" and that they "would be unduly prejudiced
if the Court were to consider [ECF 50-3] in its ruling"
on the defense summary judgment motions. Id.
oppose the Objection (ECF 53), supported by three exhibits.
ECF 53-1 - ECF 53-3. Plaintiffs did not reply, and the time
to do so has expired. See Local Rule I05.2(a).
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons that follow, I shall grant
the County's Motion (ECF 43); grant the Medics'
Motion (ECF 44); and grant the Officers' Motion (ECF 45).
I shall deny plaintiffs' Motion to Strike (ECF 38), and I
shall deny the Objection (ECF 52). As a result of these
rulings, the case shall proceed as to the Officer Defendants.
relevant time, Mr. Boyd lived in a townhouse community in the
County with his fiance, Styron; their three-year-old son,
T.B.; and Mr. Boyd's grandmother, Linda Burch, who was
suffering from dementia. ECF 45-7 (Styron Deposition) at 3-4.
about 3:06 a.m. on September 18, 2016, a frantic call was
placed to 911 by Mr. Boyd. ECF 45-4 ("Call
Records") at 9. He repeatedly asked for help. ECF 45-3
(911 Audio)' During the phone call with the 911
dispatcher, a woman, later identified as Styron, can be heard
"yelling in the background."
ECF45-4 at 4.
to the Call Records, Mr. Boyd was "very difficult to
understand over all of the background noise."
Id. at 8. As a result, the dispatcher directed Mr.
Boyd "to go outside several times." Id.
Mr. Boyd responded that "everything was ok," but
the dispatcher noted that the "female was still
screaming in the background"" Id. at 9.
About ten minutes into the call, Styron said to the
dispatcher, "Tell them to hurry up." Id.
about 3:09 a.m., Officer Seckens arrived at Mr. Boyd's
home. Id. Officer Seckens, who was in uniform,
encountered Mr. Boyd and Styron "out front kind of
arguing back and forth, yelling and screaming at each
other." ECF 45.5 (Seckens Deposition) at 6; id.
at 5. According to Seckens, Mr. Boyd seemed to be "very
paranoid," id. at 4, and "was sweating
profusely." Id. at 6. Mr. Boyd gave his
driver's license to Seckens and identified himself as
Tawon Boyd. Id. at 4.
Seckens' deposition, he described his initial encounter
with Mr. Boyd and Styron as follows, ECF 45-5 at 4:
I just tried to speak to both of them out front, what was
going on, what was wrong [ immediately knew that, it was
immediately apparent Mr. Boyd was just not acting right Like
I said before, he wasn't speaking with me. He was very
paranoid as if someone was after him, was looking around,
claiming people were in the house and Ms. Styron got him
intoxicated and was recording him. So he was not acting as a
normal person should.
after the arrival of Seckens, Officer Garland arrived at the
home, followed by Officer Bowman. ECF 45-9 (Garland
Deposition,, at 3.4. Garland testified that Boyd "was
sweating like profusely . . . ." Id. at 4. He
added, id.: "[T]hat's the most sweating
I've ever seen [from] somebody." Id.
entered the residence with Styron to separate her from Mr.
Boyd and "to try to get her side of the story."
Id; see also ECF 45-7 at 4. According to Garland,
this was standard procedure in handling domestic disputes.
ECF 45-9 at 3. Garland questioned Styron in the living room.
Id. at 5. Garland and Styron were unable to see Mr.
Boyd, Seckens, or Bowman, all of whom were outside.
Id.; ECF 45-7 at 5.
to Garland, Styron reported that Mr. Boyd had been drinking
and smoking marijuana during the evening. ECF 45-9 at 5.
Garland testified at his deposition, id,
[Styron] said that they were down [at] the Inner Harbor, and
that [Mr. Boyd] had been drinking. And then they stopped at a
cousin's house on the way back home. And she believed
that he was smoking marijuana with one of the cousins or
something. I asked her if it was just marijuana because of
all the sweating. And she said she's not sure because she
wasn't with him when he was smoking because they went out
back or something. So she wasn't actually with him when
he was smoking the marijuana.
vigorously disputes Garland's account of their
conversation. ECF 45-7 at 5. In her words, Garland said that
Mr. Boyd "got to be on drugs or something because of the
way he was sweating," but she "was telling
[Garland] that he wasn't." Id. She
maintains that the officer kept "insisting" that
Boyd was on drugs, but she "kept telling him that he
wasn't. .. ." Id. at 6.
who was outside with Mr. Boyd, observed that Mr. Boyd
appeared "very fidgety" and "wanted to check
all his surrounding,, look[ing] everywhere around." ECF
45-10 (Bowman Deposition), at 4. Bowman also noticed that Mr.
Boyd was "sweating" and "it wasn't that
kind of a hot night outside or anything." Id.
Officers were of the view that Mr. Boyd was intoxicated or
suffering from a medical emergency. ECF 45-5 at 4; ECF 45-10
at 4. Bowman explained, ECF 45-10 at 4:
[T]he way he was kind of looking around, almost as if he was
seeing other things that weren't there, just kind of
checking all the surrounding,, and the words that, you know,
somebody hiding in the attic, you know, somebody is out to
get him, you know, his girl was trying to get him
intoxicated, trying to set him up, made me think that it was
a possible combination of the drugs and some other mental
Seckens was attempting to speak with Mr. Boyd, and without
provocation, Mr. Boyd ran away from the officers and
attempted to get into Seckens's vehicle. ECF 45-5 at 5;
ECF 45-10 at 4. He was "screaming, Help! Call the
police." ECF 45-5 at 5. Seckens and Bowman
"immediately gave chase to him to prevent him from
gaining access to [the] car." Id. Mr. Boyd
attempted to enter the driver's side of the vehicle, but
the door was locked. Id. He then ran to the next
parked vehicle, but Officer Bowman blocked Mr. Boyd from
getting inside. Id. at 6-7. Thereafter, Mr. Boyd ran
to a neighbor's house across the street, while screaming
for help and asking for someone to call the police. ECF 45-5
at 7; ECF 45-10 at 5.
Garland, who was still with Styron inside the townhouse,
"heard yelling and screaming." ECF 45-9 at 4. When
Garland "came out," he "saw Mr. Boyd . . .
running across the street and yelling and hollering for the
police, call 9-1-1." Id. So, Garland "went
over at the same time Officer Seckens and Officer Bowman were
following [Mr. Boyd] across the street." Id.
Garland recalled, ECF 45-9 at 5:
So we like tried to get him to calm down and turn around
because we didn't want him - the way those houses are set
up, if you go in those doors it's a kitchen. No. weapon
yet We don't want somebody breaking in a house and having
something else, somebody else in another house. So we tried
to get him away from the house is [sic] what we try to talk
them [sic] to getting down away from the door first And then
when he turned around, that's when myself and Officer
Seckens tried to just grab him to pull him away from the
house. But at that time I slipped off of him because of being
sweaty. I kind of slipped. And it was hard for us to get a
grip And that's when all three of us kind of [sic] just
struggling to try to get him away from the door and to get
him down and get him into custody.
Similarly, Bowman testified, ECF 45-10 at 5:
[Mr Boyd] continued banging on the door. ... we didn't
have a huddle where we just .kept discussing what was going
on, but everyone seemed to be on the same page We didn't
want the person opening the door because we don't know
what's behind the door or necessarily know what's
going to happen with another person or in a whole other
building. So at that point it was, all right, grab him and
let's go get him into custody.
claimed that he and Garland "attempted to just grab [Mr.
Boyd], grab him by his arms and take him down to the
ground." ECF 45-5 at 7. But, Boyd "was doing
anything to get away ..." Id. Seckens recalled,
id.: "At one point when we grabbed a hold of
him, that's when he reached back and he actually grabbed
the back of my neck, and . . . scratched the back of my neck.
But we were able to eventually get him on the ground."
Id. Mr. Boyd did not have any weapons in his hand.
ECF 42-10 at 5.
time Styron came outside, Mr. Boyd was on the ground. ECF
45-7 at 6. Styron testified: "They had tossed [Mr. Boyd]
on the ground, actually. They started jumping on top of him
... . There were so many officers out there."
approximately 3:29 a.m., an unidentified voice "screamed
in the radio for a medic." ECF 45-4 at 10. As reflected
in the Call Records, the dispatcher referred to Mr. Boyd as a
"psych patient," "in custody," with
"minor injuries." Id. at I1.
and Burns immediately responded to the call, with Burns
driving the ambulance and Armstrong in the passenger seat.
ECF 48-3 (Exhibit E, Armstrong Deposition) at 9; see
also ECF 44-3 (Armstrong Deposition..
testified that when he and Burns arrived at the scene,
"it was pretty dark out," but "it was obvious
there was like a struggle ensuing between" Mr. Boyd and
the Officers. Exhibit E at 11. Armstrong recalled:
"[T]he police officers were giving commands to [Mr.
Boyd] to calm down" and "were trying to hold him
down and restrain him, like handcuff him. And he was like
bucking the police up off of him . . . ." Id.
Armstrong briefly "went up to look at [Mr. Boyd] and the
police officers at the head of [him]." Id. at
14. Mr. Boyd was face down on the ground, with his hands
cuffed "in the front," as approximately five
officers held down his legs and face. Id. at 12-13.
explained in deposition that he saw at least two officers
"holding [Mr. Boyd's] limbs ....
They were holding him down that's all." ECF 48-3
(Exhibit K, Burns Deposition;; see also ECF 44-4
(Burns Deposition) at 3.
immediately ran back to the ambulance to get supplies.
Exhibit E at 17. At the same time, Burns approached Mr.
Boyd's family members, Styron and Burch, who were
standing outside. Exhibit K at 15. Bums spoke with them for
"maybe five minutes," obtaining "pertinent
information"' such as Mr. Boyd's "name,
age, [and] any health issues[.]" Id. at 16. As
Burns was speaking with them, he "tr[ied] to relay any
pertinent information to [Armstrong]" but Armstrong may
not have heard him because "it was a pretty good ruckus
going on out there." Id. Burns then
"[w]ent to go get the stretcher." Id.
on Armstrong's "clinical judgment from previous
cases," and his observations of "the way [Mr. Boyd]
was acting," Armstrong decided to administer Haldol to
him. Exhibit E at 28; Id. at 20. In deposition,
Armstrong described Haldol as an "anti-psychotic
medication to calm violent individuals." Id. at
20. At approximately 3:36 a.m., as the Officers continued to
restrain Mr. Boyd, who was prone on the ground, Armstrong
injected 5mg of Haldol in Mr. Boyd's right deltoid
muscle. Id. at 34, 49; see also ECF 44-11
at 49; ECF 44-5 at 3.
deposition, Armstrong was asked why he decided to administer
Haldol. Armstrong answered: "Obviously there was a
confrontation between [Mr. Boyd] and the police department..
. . . [Mr. Boyd] was bucking the police officers off. They
were attempting to hold him down. And so it appeared that he
was pretty violent to me." Exhibit Eat 20. Therefore,
Armstrong wanted "to sedate [Mr. Boyd] and calm him
down, that way he d[idn't]] have to be restrained or was
no longer fighting." Id. at 20-21.
Armstrong administered the Haldol, he waited by Mr.
Boyd's side until Mr. Boyd calmed down to "assess
his vital signs and treat him further." Id. at
35. Within two minutes, Mr. Boyd became calm. Id. at
36; see also ECF 44-11 at 3. The Officers checked
Boyd's pulse and confirmed that he was still breathing.
ECF 44-11 at 4. They then tolled him onto his side" in a
"recovery position." Id. Immediately
thereafter, Armstrong observed Mr. Boyd's body go
"limp." Exhibit E at 43. Armstrong determined that
Mr. Boyd was in cardiac arrest; Mr. Boyd did not have a pulse
and was not breathing. Id.
and Burns loaded Mr. Boyd onto a stretcher "to begin
assessing him rapidly." Id. at 45. According to
Armstrong, it was a "[v]ery short period" before
Mr. Boyd was on the stretcher. Id. at 48. However,
Armstrong waited to perform cardiopulmonary resuscitation
("CPR") on Mr. Boyd until they had wheeled Mr. Boyd
to the ambulance. Id. At his deposition, Armstrong
explained, Id. at 46-47:
I mean it's my job to give direction to others
surrounding me who were pretty much performing care under my
supervision that will benefit the patient the most. And I
believe if we started doing CPR on him - a lot of times when
you do CPR on people that are dead in front of family members
they have a tendency to latch on. And that would prevent care
from him. So we loaded him into the unit. It was in his best
interest without a doubt.
Armstrong testified: "I wasn't going to do that in
front of his family . . . [with] an incident
like this I didn't want to cause like an uproar in the
community. That would prevent me from treating the gentleman
in the back of the ambulance." Id. at 45-46.
approximately 3:42 a.m., Armstrong began performing CPR on
Mr. Boyd in the ambulance. ECF 44-5 at 3; Exhibit E at 49.
Officer Holt assisted Armstrong. See ECF 44-12
(Answer to Interrogatory 19). Armstrong also applied the
defibrillator pads on Mr. Boyd, secured an airway, and
started an IV line of epinephrine and fluids. Exhibit Eat
65-66; see also ECF 44- 5 at 3. By approximately
3:56 a.m., Mr. Boyd regained a pulse (ECF 44-5 at3) but Mr.
Boyd was still "unresponsive." Id. at 2.
Mr. Boyd's blood pressure "started to decline a
little bit," Armstrong gave him a medication to elevate
it (Exhibit E at 63) and contacted Dr. Park, the physician on
call in the Emergency Department of Franklin Square Hospital.
Id. at 66. Armstrong obtained Dr. Park's
permission to administer Dopamine to Mr. Boyd. ECF 44-5 at 2.
But, Mr. Boyd did not regain consciousness. Id.
arrival at the Emergency Department, Mr. Boyd was already
"intubated" but was "nonresponsive." ECF
45-11 ('-Hospital Records"), at 3. Pursuant to the
Baltimore County Police Department Field Manual ("Field
Manual," ECF 45-14), Mr. Boyd became "the
responsibility of the hospital." Id. at 4.
Armstrong briefed Dr. Park on the treatment he had
administered to Mr. Boyd. Exhibit E at 66. Mr. Boyd showed
"improvement" in blood pressure, with "dilated
non reactive pupils with left sided gaze." ECF 44-5 at
2. The Hospital Records also reflect that Mr. Boyd had
"metabolic acidosis." ECF 45-11 at 3. Moreover, Mr.
Boyd's "[u]rine toxicology was . . . positive for
cannabinoid and ethanol," which are the active
ingredients for marijuana and alcohol, respectively.
Hospital Records further state, in relevant part,
HISTORY OF PRESENT ILLNESS: This is a 21-year-old male with
history of marijuana and Molly use with no other past medical
history who was brought to the [sic] unresponsive after a
cardiac arrest in the field. According to the patient's
family and girlfriend he was with his girlfriend when he left
the house to smoke marijuana and came back acting very
strangely. He was paranoid and thought somebody was in the
house. The police were phoned. The police came, he did not
realize who it was and ran to the neighbor's house for
help where he was found trying to break in EMS was called and
6 officers were required to subdue the patient He was very
combative and fighting restraints. In the field he was given
Haldol 5 mg and then subsequently went into responses
pulseless asystole. CPR was done for 3 minutes and he was
given epinephrine as [sic] started on dopamine and given 1 T
of IV fluids. In the field, it was noted that his pupils were
fixed and dilated at the time.
that morning, Mr. Boyd was admitted to the Intensive Care
Unit with multi-organ failure and severe encephalopathy. ECF
45-11 at 2. Three days later, Mr. Boyd was taken off of life
support. He died at 11:01 a.m. on September 21, 2016.
next day, Dr. Russell Alexander, an assistant medical
examiner in the Office of the Chief Medical Examiner,
performed an autopsy on the Decedent. ECF 44-6 ("Autopsy
Report"); ECF 45-12 ("Autopsy Report"). Dr.
Alexander classified the death as an "Accident" and
concluded that the cause of death was "Complications of
N-Ethylpentylone Intoxication." ECF 44-6 at 2. The
Autopsy Report also notes: "Subject took drug and then
suffered a cardiac arrest following restraint by law
enforcement." Id. Dr. Alexander noted several
abrasions on Mr. Boyd's body. Mat 3.
signed the Maryland Institute for Emergency Medical Services
Systems ("MIEMSS)) Prehospital Care Report on September
18, 2016. ECF 44-5 ("MIEMSS Report"). He indicated
in the MIEMSS Report that he "believe[d]" Mr. Boyd
was "in excited delirium state" ("ExDS").
At his deposition, Armstrong explained the condition of ExDS,
Exhibit E at 22-23:
So excited delirium actually is still like a fresh topic in
the EMS [Emergency Medical Services] and in emergency
medicine. And it's very hard to diagnose, especially in
the field. But from my understanding it's probably
it's probably [sic] the best way of putting it, is that
it is violent subjects after some form of ingesting or
induction of a stimulant or some form of chemical that makes
them become manic.
year, on July 1, MIEMSS revises the Maryland Medical
Protocols for Emergency Medical Services Providers.
See ECF 44-7 ("EXDS 2016 MIEMSS
Protocol"); ECF 44-8 ("HALDOL 2016 MIEMSS
Protocol"). Baltimore County Fire Department paramedics
are required to review the annual updates online.
Id. MIEMSS then notifies the Fire Department when
each paramedic has done so. Id. Armstrong testified
at his deposition that, prior to July I, 2016, he had
completed an online review of the 2016 revisions to the
Protocols. Exhibit E at 24.
Section LL, titled "Excited Delirium Syndrome
(ExDS)," the 2016 MIEMSS Medical Protocols (the
"2016 Protocols") defined ExDS as follows, ECF 44-7
Excited delirium syndrome (ExDS) is a potentially
life-threatening condition in which a person is in a
psychotic and extremely agitated state. Mentally, the subject
is unable to process rational thoughts or to focus his/her
attention. Physically, the body's systems are functioning
at such a high rate that they begin to shut down and fail
When those two factors occur at the same time, a person can
act erratically enough that he/she becomes a danger to self
and to the public.
2016 Protocols listed several causes of ExDS: "(I)
Ingestion of a stimulant or hallucinogenic drug; (2)
Drug/alcohol withdrawal; (3) Psychiatric patient who is off
medication." Id. In addition, the 2016
Protocols provided numerous "signs and symptoms" of
the condition, including high body temperature; incoherent or
nonsensical speech; paranoia; hot/dry skin; and profuse
sweating after ingesting cocaine,
Methylenedioxymethamphetamine, or what is commonly known as
MDMA, Molly, or Ecstasy; or methamphetamine. Id.
significance here, the 2016 Protocols, which exceeded 200
pages, included an "ALERT" that explicitly warned
emergency personnel not to administer Haldol to patients
exhibiting symptoms of ExDS. It stated, in capital letter, as
follows, id. at 5:
PATIENTS DISPLAYING SIGNS AND SYMPTOMS OF EXDS SHOULD NOT
RECEIVE HALDOL AND/OR BENADRYL FOR CHEMICAL RESTRAINT. THESE
MEDICATIONS MAY WORSEN AN ANTICHOLINERGCC CRISIS. HALDOL MAY
INCREASE THE POSSIBILITY OF CARDIAC DYSRHYTMIA BY PROLONGING
THE QT INTERVAL AND MAY ALSO INCREASE THE CHANCES OF A
SEIZURE BY LOWERING THE BODY'S SEIZURE THRESHOLD.
same section, the 2016 Protocols included a second alert, as
related to ExDS, id. at 4:
PATIENTS DISPLAYING SIGNS AND SYMPTOMS OF EXDS SHALL BE
TREATED AND TRANSPORTED AT THE ADVANCED LIFE SUPPORT LEVEL. .
. THE APPROPRIATE LIFESAVING TREATMENT FOR EXDS IS THE
ADMINISTRATION OF BENZODIAZEPINES, FLUID RESUSCITATION, AND
DECREASING HYPERTHERMIC CORE BODY TEMPERATURE.
regard to suspected ExDS, the 2016 Protocols instructed
emergency personnel to administer midazolam, a
benzodiazepine, "in 2 mg increments ..
. over I-2 minutes" via
'"IV" (or "IO.”
Id." The 2 mg increment "[m]ay be repeated
twice to a maximum . . . dose of 6 mg ..
. ." Id. If IV or 10 access is
not available, the 2016 Protocols advise personnel to
administer up to 5mg of midazolam via [M (intramuscular)
injection. ECF 44-7 at 4-5. Notably, if a patient appears
violent, "[appropriate physical restraint procedures
should be utilized .. . ." Id. at 4.
the Section of the 2016 Protocols related to the use of
Haldol, the 20I6 Protocols remained unchanged, with no alert
posted. ECF 44-8 at 3. In Section 19, titled
"Haloperidol (Haldol)," the 2016 Protocols listed
four "contraindications": "(1) Children under
5 years of age; (2) Parkinson's disease; (3) CNS [Central
Nervous System] depression; (4) Acute CNS Injury."
Obviously, these warnings did not involve ExDS. Id.
In contrast, the 2018 MIEMSS Medical Protocols, effective
July I, 2018, list Haldol as contraindicated for
"Excited delirium." ECF 44-9 ("HALDOL 2018
MIEMSS Procol"), at 3.
facts are included, infra.
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate only "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law""
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); see also Iraq Middle Mkt. Dev. Found. v.
Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017) ("A
court can grant summary judgment only if, viewing the
evidence in the light most favorable to the non-moving party,
the case presents no genuine issues of material fact and the
moving party demonstrates entitlement to judgment as a matter
of law."). The nonmoving party must demonstrate that
there are disputes of material fact so as to preclude the
award of summary judgment as a matter of law. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
Supreme Court has clarified that not every factual dispute
will defeat the motion. "By its very terms, this
standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue
of material fact." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). A fact is "material" if it "might
affect the outcome of the suit under the governing law."
Id. at 248. There is a genuine issue as to material
fact "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party."
Id.; see also Sharif v. United Airlines, Inc., 841
F.3d 199, 204 (4th Cir. 2016); Raynor v. Pugh, 817
F.3d 123, 130 (4th Cir. 2016).
party opposing a properly supported motion for summary
judgment 'may not rest upon the mere allegations or
denials of [its] pleadings' but rather must 'set
forth specific facts showing that there is a genuine issue
for trial.'" Bouchat v. Bait. Ravens Football
Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting
former Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S.
1042 (2004); see also Celotex, 477 U.S. at 322-24.
In resolving a summary judgment motion, a court must view all
of the facts, including reasonable inferences to be drawn
from them, in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. Ltd., 475 U.S. at
587; accord Roland v. United States Citizenship &
Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017);
FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
However, summary judgment is appropriate if the evidence
"is so one-sided that one party must prevail as a matter
of law." Anderson, 477 U.S. at 252. And,
"the mere existence of a scintilla of evidence in
support of the [movant's] position will be insufficient;
there must be evidence on which the jury could reasonably
find for the [movant]." Id.
judge's "function" in reviewing a motion for
summary judgment is not "to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial." Anderson,
477 U.S. at 249, 106 S.Ct. 2505; accord Guessous v.
Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir.
2016). Thus, in considering a summary judgment motion, the
court may not make credibility determinations. Jacobs v.
N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th
Cir. 2015); Mercantile Peninsula Bank v. French, 499
F.3d 345, 352 (4th Cir. 2007). Moreover, In the face of
conflicting evidence, such as competing affidavits, summary
judgment ordinarily is not appropriate because it is the
function of the factfinder to resolve factual disputes,
including matters of witness credibility. See Black &
Decker Corp. v. United States, 436 F.3d 431, 442 (4th
Cir. 2006); Dennis v. Columbia Colletan Med. Or.,
Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).
Motion to Strike
move to strike defendants' expert reports and to exclude
defendants' proposed experts from participation at trial,
pursuant to Fed.R.Civ.P. 37(c)(1.. ECF 38. They contend that
defendants failed to timely disclose their designation of
experts, and failed to include "a certificate regarding
service or a certificate regarding discovery identifying the
purpose of the disclosures," in violation of
Fed.R.Civ.P. 26(a)(2). ECF 38-1 at 2.
to the Court's Scheduling Order (ECF 31), defendants'
Rule 26(a)(2) disclosures were due on March 28, 2018.
Defendants failed to comply with that deadline, although the
delay was quite brief. In an email exchange of March 29,
2018, defense counsel, Paul M. Mayhew, communicated to
plaintiffs' counsel, Latoya Francis-Williams, that he
would send the disclosure materials the next day, on March
30, 2018. Francis-Williams did not object. See ECF
39-3 (Mayhew: "I will be providing our Rule 26 materials
tomorrow. Are we still doing the depositions on April
4th?" Francis-Williams: "Yes we are. Thank
March 31, 2018, three days after the court-imposed deadline,
plaintiffs' counsel received the Rule 26(a)(2) materials.
See ECF 38-2 (noting "Expected Delivery
Date" as "03/31/2018"). The materials
contained two expert reports: Charles J. Key, Sr., the former
Commanding Officer of the Firearms Training Unit of the
Baltimore City Police Department (ECF 39-1), and Dr. L.J.
Dragovic, the Chief Forensic Pathologist/Chief Medical
Examiner of Oakland County, Michigan (ECF 39-2). Plaintiffs
filed the Motion to Strike on April 3, 2018. ECF 38.
order to clear up any claimed confusion," defendants
provided plaintiffs with a separate designation of experts on
April 5, 2018. ECF 39-4 (Defendants' Expert Designations
and Disclosures). Pursuant to Rule 26(a)(2), defendants
designated Key and Dragovic as defense experts. Id.
to Rule 26(a)(2)(A), "a party must disclose to the other
parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or
705." Rule 26(a)(2)(B) provides that an expert witness
disclosure must be accompanied by a written report that
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
disclosure must be made "at the times and in the
sequence that the court orders." Fed.R.Civ.P.
26(a)(2)(D). Further, "[f]or an expert whose report must
be disclosed under Rule 26(a)(2)(B), the party's duty to
supplement extends both to information included in the report
and to information given during the expert's deposition.
Any additions or changes to this information must be
disclosed by the time the party's pretrial disclosures
under Rule 26(a)(3) are due." Fed.R.Civ.P. 26(e)(2).
court finds that a party's expert disclosure was
untimely, the court must then determine the appropriate
sanction. Fed.R.Civ.P. 37(c)(1) provides that if a party
fails to disclose a witness pursuant to Rule 26(a) or (e),
"the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or
harmless." And, Rule 37(c) also permits the court to
"order payment of the reasonable expenses, including
attorney's fees caused by the failure;" "inform
the jury of the party's failure;" and "impose
other appropriate sanctions," including those
"listed in Rule 37(b)(2)(A)(i)-(vi)."
relevance here, in determining whether a party's untimely
disclosure of evidence is substantially justified or
harmless, "district courts are accorded 'broad
discretion.'" Bresler v. Wilmington Trust
Co., 855 F.3d 178, 190 (4th Cir. 2017) (citing
Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir.
2014)); see also Southern States Rack & Fixture, Inc.
v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.
2003). In the exercise of their discretion, district courts
are guided by the following factors, Southern
States, 318 F.3d at 597:
(1) the surprise to the party against whom the evidence would
(2) the ability of that party to cure the surprise;
(3) the extent to which allowing the evidence would disrupt
(4) the importance of the evidence; and
(5) the nondisclosing party's explanation for its failure
to disclose the evidence.
See also Bresler, 855 F.3d at 190; Russell v.
Absolute Collection Servs., Inc., 763 F.3d 385, 396-97
(4th Cir. 2014).
first four factors "relate primarily to the harmlessness
exception" of Rule 37(c)(1), and the fifth factor
"relates mainly to the substantial justification
exception.'' Bresler, 855 F.3d at 190.
"The party failing to disclose information bears the
burden of establishing that ...