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Boyd v. Armstrong

United States District Court, D. Maryland

March 29, 2019

MARTHA BOYD, et al. Plaintiffs,
v.
TYLER ARMSTRONG, et al. Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         This 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").[1] 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").

         In the 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.

         The Amended Complaint is structured as two claims with multiple counts.[2] 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.

         The 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").[3] The County has replied (ECF 49) and submitted an additional exhibit. ECF 49-1.

         The 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.

         The 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").[4] The Officers replied (ECF 50) and submitted additional exhibits. ECF 50-1 - ECF 50-3.

         Also 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).

         In 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.

         Defendants 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).

         No 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.

         I. Factual Background

         At the 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.

         At or 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)'[5] 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.

         According 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. at 10.

         At 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.

         At 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.

         Shortly 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.

         Garland 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.

         According 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.

         Styron 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.

         Bowman, 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.

         The 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 health Issue.

         As 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.

         Officer 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.

         Seckens 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.

         By the 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." Id.

         At 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.

         Armstrong 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..

         Armstrong 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.

         Burns 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.

         Armstrong 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.

         Based 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.

         At his 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.

         After 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.

         Armstrong 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.

         Further, 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.

         At 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.

         When 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.

         On 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. Id.

         The Hospital Records further state, in relevant part, id.:

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.

         Later 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. Id.

         The 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.

         Armstrong 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.

         Each 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.

         Under Section LL, titled "Excited Delirium Syndrome (ExDS)," the 2016 MIEMSS Medical Protocols (the "2016 Protocols") defined ExDS as follows, ECF 44-7 at 3:

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.

         The 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.

         Of 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.

         In the 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.

         In 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."[6] 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.

         Yet, in 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.

         Additional facts are included, infra.

         II. Legal Standard

         Under 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. 574, 585-86.

         The 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).

         "A 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.

         The 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).

         III. Motion to Strike

         Plaintiffs 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.

         Pursuant 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 you.").

         On 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.

         "In 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. at 1-2.

         Pursuant 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 contains:

(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 them;
(iii) any exhibits that will be used to summarize or support them;
(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 deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.

         This 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).

         If a 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)."

         Of 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 be offered;
(2) the ability of that party to cure the surprise;
(3) the extent to which allowing the evidence would disrupt the trial;
(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).

         The 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 ...


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