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August 11, 1999


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.

I. Background

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. ¶ 16.

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

Although Reidel and Devine tried to convince Tofano to stop struggling and relax, Tofano continued to yell and thrash about while Stitz attempted to radio for back-up. See Reidel Dep., Exh. A at 88; Devine Cert. ¶ 17.*fn8 Reidel was able to get his portable radio out of his holder and called for assistance from the Mahwah Police Department. See Reidel Dep., Exh. A at 88-89. Tofano continued to struggle and move about while the officers tried to maneuver his left wrist into the handcuff. See Reidel Dep., Exh. A at 93-94.*fn9

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. See id.*fn10

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
  physical activity.

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 testimony.*fn11


A. Dr. Roh's Report

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 provides that:

  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, ...

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