The opinion of the court was delivered by: Barry, District Judge.
This case arises from the death of Scott Tofano ("Tofano") on
July 24, 1996 following an altercation with three police
officers, defendants Christopher Reidel ("Reidel"), David Stitz
("Stitz"), and Michael Devine ("Devine") (collectively as
"officers"). Tofano's wife Rosemarie Tofano, as administrator of
Tofano's estate and on her own behalf ("plaintiff"), brings this
action alleging that the officers violated Tofano's Fourth and
Fourteenth Amendment rights as well as New Jersey common law by
their actions on July 24, 1996. In addition, plaintiff contends
that the Borough of Ramsey (incorrectly named as the Town of
Ramsey) ("Ramsey") failed to properly train its police officers
and maintained policies or customs exhibiting a deliberate
indifference to the constitutional rights of individuals in the
Borough, indifference which caused Tofano's constitutional rights
to be violated. The officers and Ramsey now move for summary
judgment. Reidel and Devine also move to exclude the testimony of
Louis S. Roh, M.D. ("Dr. Roh") as unreliable. While the testimony
of Dr. Roh will not be excluded, the motions for summary judgment
will be granted.
The facts of this case are largely undisputed.*fn1 At
approximately 2:11 am on July 24, 1996, Officer Devine was on
duty and received a radio dispatch regarding a man wearing shorts
but no shirt, who was yelling and running around in the parking
lot of the Timber Valley Condominiums. See Devine Cert. ¶ 3.
Devine drove to the
parking lot and, upon arrival, Tofano — a thirty-four year old,
6' 2" white male weighing 211 pounds*fn2 and with a "very
muscular build" — ran toward Devine's squad car. See id. ¶ 4;
Exh. D*fn3 at 2. Tofano was wearing black boxer shorts and one
sock, and was carrying, among other things, clothing, a manila
envelope, a wallet, a green folder or book and two rocks. See
Devine Cert. ¶ 4; Devine Dep., Exh. C at 17. He was sweating
profusely and speaking in an excited manner. See Devine Cert. ¶
4; Devine Dep., Exh. C at 18.
Tofano asked Devine to kick in the door to an apartment in
building seven because there were about twenty people in there
trying to frame him. See Devine Cert. ¶ 5. Tofano said that the
people in the apartment had kidnapped his dog and he wanted to
rescue it. See id. Devine tried to calm Tofano down and
eventually got him to put down the rocks and hand him his wallet.
See id. ¶ 6.
Officer Stitz then arrived on the scene. He spoke with Tofano
while Devine threw the rocks out of Tofano's reach and toward
some bushes. See id. ¶ 7. Devine also looked through Tofano's
wallet for identification and to ascertain whether he was under
the care of a doctor. See id.
Stitz and Devine engaged in small talk with Tofano in an
attempt to calm him down but were unsuccessful as Tofano
continued to talk about the people he was seeing all around him.
See Devine Cert. ¶ 9; Devine Dep., Exh. C at 19. In a loud and
boisterous manner, Tofano stated that there were people on the
roof of building seven, in the patrol car, and standing near
them, including a man wearing white standing behind Devine with
his hand on Devine's shoulder. See Devine Cert. ¶ 8; Stitz
Cert., Exh. J ¶ 4. No one was present aside from Stitz, Devine
and Tofano. See Stitz Cert.Exh. J ¶ 4.*fn4 Tofano also stated
that all of the cars in the parking lot were stolen by people in
building seven. See Devine Cert. ¶ 8.
While Sergeant Reidel was on patrol that night, he heard over
the radio that two officers had been dispatched to investigate a
noise disturbance and went over to see if he could be of
assistance. See Reidel Dep., Exh. A at 48. Upon Reidel's
arrival, Tofano was still excited and was talking about the
people who were out to get him. See id. at 49. Stitz updated
Reidel as to Tofano's behavior and advised Reidel that Tofano
seemed to be in need of psychiatric screening and evaluation from
262-HELP, a County run mental health division affiliated with
Bergen Pines Hospital. See Reidel Dep., Exh. A at 49; Stitz
Cert., Exh. J ¶ 5. It was determined that Tofano would be taken
into custody for disorderly conduct and given a mental status
evaluation. See Stitz Cert., Exh. J ¶ 6. In an extremely
agitated state, Tofano continued to talk about people kidnapping
his dog and insisted that the officers go to his apartment to
view the evidence he had collected. See Devine Cert., ¶ 11;
Reidel Dep., Exh. A at 53. The officers told Tofano that they
were going to try to help him and tried to convince him to get
into the patrol car. See Stitz Cert., Exh. J ¶ 6; Devine Cert.
¶ 11; Reidel Dep., Exh. A at
56. Tofano refused and grabbed Stitz's arm, dragging him through
the parking lot. See Devine Cert., ¶ 12; Reidel Dep., Exh. A at
57; Stitz Cert., Exh. J ¶ 7.*fn5
Stitz placed one handcuff on Tofano's right wrist, and informed
him that he was under arrest for disorderly conduct. Stitz was
unable, however, to attach the second handcuff to Tofano's left
wrist. See Stitz Cert., Exh. J ¶ 7; Devine Cert. ¶ 12.*fn6
Reidel grabbed Tofano's left arm but Tofano broke free and swung
his right arm at Reidel. See Devine Cert. ¶ 13; Reidel Dep.,
Exh. A at 77. Devine rushed in to help and Tofano again swung his
right arm, slashing Devine's neck with the handcuff, and creating
a cut that later required five stitches. See Devine Cert. ¶¶
13, 20; Reidel Dep., Exh. A at 77. Tofano then started to run and
Reidel tackled him from behind. See Reidel Dep., Exh. A at 77.
After Tofano threw Reidel off him, Reidel informed the other
officers that he was going to use pepper spray to try to subdue
Tofano. See id. at 78. Reidel sprayed Tofano in the face and
frontal area with the pepper spray but it had no effect on him.
See id. at 78-79. Unfortunately, Stitz was also hit by the
pepper spray and was temporarily incapacitated. See id. at 84;
Devine Cert. ¶ 15. Tofano then threw Stitz into the patrol car,
with Stitz hitting his head and falling to the ground. See
Stitz Cert., Exh. J ¶ 8; Reidel Dep., Exh. A at 85; Devine Cert.
Having broken free of everyone, Tofano ran into the stairwell
of building seven and up a couple of stairs. See Devine Cert. ¶
16. Reidel pursued him, concerned that Tofano was headed for the
roof. See Reidel Dep., Exh. A at 85-86. While grabbing Tofano
around the waist, Reidel lost control of the pepper spray
canister. See Reidel Dep., Exh. A at 86. Tofano grabbed the
canister and aimed it at Devine. See Devine Cert. ¶ 16. Devine
was able to wrestle the canister out of Tofano's hand but during
the struggle, they fell backwards two steps down onto the landing
and onto Reidel. See Devine Cert. ¶¶ 16, 17; Reidel Dep., Exh.
A at 86-87.
Tofano continued to thrash about and tried to get up as the
officers attempted to keep him on the ground. See Devine Cert.
¶ 17. Reidel held onto Tofano's arm and Tofano's head was on
Reidel's left arm. See Reidel Dep., Exh. A at 87; Devine Cert.
¶ 17. Devine was positioned across the area of Tofano's buttocks.
See Devine Cert. ¶ 17. Tofano continually kicked Devine until
Stitz rejoined the group and managed to secure Tofano's legs.
See Devine Cert. ¶ 17.*fn7
Tofano then stopped struggling and Devine was able to cuff
Tofano's left wrist. See Devine Cert. ¶ 18. Once he was
handcuffed, the officers rolled Tofano onto his back and noticed
that he did not appear to be breathing. See id. ¶ 18. Devine
ran to the patrol car for oxygen equipment. See id. ¶ 18.
Tofano had a strong pulse at that time and Stitz, a licensed
trained paramedic, immediately began rescue breathing. See
Reidel Dep., Exh. A at 96-98; Devine Cert. ¶ 18; Stitz Cert.,
Exh. J ¶ 12. Reidel called for an ambulance and paramedic units.
See Reidel Dep., Exh. A at 98. Devine applied a heart
defibrillator unit and Stitz began cardiopulmonary resuscitation.
See Stitz Cert., Exh. J ¶ 13. The Mahwah police officers
arrived and assisted in the efforts to resuscitate Tofano. See
Stitz Cert., Exh. J ¶ 12. Ambulance and paramedic personnel also
arrived and ultimately transported Tofano to Good Samaritan
Hospital where he was pronounced dead at 3:31 am. See Reidel
Dep., Exh. A at 100-102; Exh. D at 1.
Stitz estimated that less than ten minutes elapsed between the
time he arrived on the scene and the time the Mahwah officers
arrived. See Stitz Cert., Exh. J ¶ 15. He stated that the
physical confrontation with Tofano lasted less than two minutes
and that, in addition to Devine's neck injury, Stitz's shoulder
was separated during the incident and Reidel injured his knee.
Frederick T. Zugibe, M.D., Chief Medical Examiner in Rockland
County, N.Y. ("Dr. Zugibe"), performed an autopsy on that same
date and concluded that the cause of death was "[p]ositional
asphyxia due to respiratory compromise in a person with toxic
levels of cocaine and a congenital heart defect during police
restraint." Exh. D at 6. The toxicology report submitted by Jesse
H. Bidanset, Ph.D., DABFT, noted that the cocaine levels present
in Tofano's blood, urine, brain, and internal organs "[were]
within the ranges reported for cocaine fatalities." Exh. E at 1.
In addition, Dr. Zugibe submitted a letter to a prosecutor in
Bergen County explaining that:
The reconstruction of the mechanism of death appears
to be due to a fatal arrhythmia caused by an increase
in the decedent's oxygen requirements with an
inappropriate oxygen delivery resulting from three
major events which rendered him susceptible to the
fatal cardiac arrhythmia; 1. an increase in oxygen
demands caused by catecholarnine stress on the heart
due to cocaine toxicity, 2. an increase in oxygen
demands caused by hyperactivity during police
attempts at restraint and 3. a compromise of
respiratory movements during restraint while holding
him down in a prone position. This scenario may have
been further aggravated by a congenital heart defect
(hypoplastic coronary artery disease) detected at
autopsy which can render such a person susceptible to
a fatal arrhythmia during increased states of
Exh. F. The letter also stated that "death due to cocaine
toxicity, per se cannot be fully excluded." Id.
On June 24, 1997, plaintiff filed an eight-count complaint in
this court against the officers and Ramsey alleging
constitutional violations under 42 U.S.C. § 1983 (Counts One,
Two, Five, Six, and Seven) as well as common law claims of
assault and battery (Counts Three and Four) and negligence (Count
Eight). As noted above, defendants now move for summary judgment
on all counts and Reidel and Devine move to exclude Dr. Roh's
Before moving to the summary judgment motions, this court will
first address the preliminary issue of whether Dr. Roh's expert
opinion should be excluded. Reidel and Devine contend that Dr.
Roh's expert opinion must be excluded because it is unreliable.
This court does not agree.
The Federal Rules of Evidence, as a whole, embrace a "strong
and undeniable preference for admitting any evidence having some
potential for assisting the trier of fact." DeLuca v. Merrell
Dow Pharmaceuticals, Inc., 911 F.2d 941, 956 (3d Cir. 1990).
This generous policy is embraced by the rules pertaining to
expert evidence as well. See Holbrook v. Lykes Bros. Steamship
Co., Inc., 80 F.3d 777, 780 (3d Cir. 1996). Together, Rules 702
and 104(a) govern the admission of expert testimony. Rule 702
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, ...