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Date: 09-09-2022

Case Style:

K.J.P. v. County of San Diego and Richard Fischer

Case Number: 3:15-cv-02692

Judge: Marilyn L. Huff

Court: United States District Court for the Southern District of California (San Diego County)

Plaintiff's Attorney:



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Defendant's Attorney: James M. Chapin, et al.

Description: On April 13, 2015, the decedent, Lucky Phounsy, experienced a mental health crisis and called 9-1-1 for help. San Diego County Sheriff's Deputies responded to Mr. Phounsy's call. During the altercation between Mr. Phounsy and the deputies, Mr. Phounsy was tased multiple times, punched, handcuffed, put in maximum restraints, strapped to a gurney, and had pressure applied to his head and torso. Mr. Phounsy went into cardiac arrest, coded, and eventually was removed from life support at the hospital. He was 32 years old. This litigation by Mr. Phounsy's wife and young children follows.

On August 23, 2021, the Court held a trial in this case. During the trial, on August 30, 2021, Defendants filed a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). (Doc. No. 354.) On September 3, 2021, the trial ended when the jurors were unable to reach a verdict. (Doc. No. 363.) On September 12, 2021, Defendants filed a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). (Doc. No. 386.) On October 28, 2021, the Court denied Defendants' Rule 50(a) motion. (Doc. No. 388 at 2.)

On September 15, 2021, the Court granted Plaintiffs' motion to dismiss the remaining Deputy Defendants other than Defendant Fischer and all claims by Kimberly Nang Chanthaphanh. (Doc. No. 394.) On October 28, 2021, the Court ordered Defendants to file an updated version of their Rule 50(b) motion that took into consideration the dismissal of the defendants and claims. (Doc. No. 423.) On November 2, 2021, Defendants filed the present motion requesting judgment as a matter of law pursuant to Rule 50(b) for Plaintiffs' remaining claims of (1) § 1983 excessive force claim against Defendant Fischer; (2) Monell claim against the County for failure to train on the use of force; (3) Monell claim against the County for failure to train on addressing serious medical needs; (4) California Bane Act claims against both Defendants; (5) negligence claims against both Defendants; and (6) wrongful death claims against both Defendants. (Doc. No. 427-1.) Defendants also reassert qualified immunity against Plaintiffs' § 1983 excessive force claim against Defendant Fischer. (Id. at 5-15.) On November 16, 2021, Plaintiffs filed a response in opposition to Defendants' motion. (Doc. No. 428.) On December 3, 2021, Defendants filed a reply. (Doc. No. 429.)

After rescheduling the retrial twice, the retrial in this case was set to begin on January 19, 2022. (Doc. No. 419.) On January 10, 2022, the Court held a telephonic status conference where it continued the final pretrial conference to February 14, 2022 and continued the retrial to March 2, 2022 due to the COVID-19 Omicron surge. (Doc. Nos. 438, 443.) At the January 10, 2022 telephonic status conference, the Court also indicated that it may rule on Defendants' Rule 50(b) motion at the February 14, 2022 final pretrial conference. (Doc. No. 441, Telephonic Status Conference Tr. 20, 25.)

On February 9, 2022, Plaintiffs filed a supplemental brief detailing alleged discovery violations by Defendants. (Doc. No. 448.) Plaintiffs allege that Defendants did not provide Plaintiffs with a maximum restraint training video[1] used by the San Diego County Sheriff's Department. (Id. at 3-4.) Plaintiffs represent that they made multiple requests for production of training materials related to maximum restraints used by the San Diego Sheriff's Department during discovery. (Doc. No. 448 at 3; Scott Decl. Ex. A at 5.) Plaintiffs included as an attachment to their brief the County's response to Plaintiffs' request for production dated September 7, 2016, in which Plaintiffs requested:

Documents containing any training, protocol, policy, or procedure (in effect at the time of the incident through the present) that applies to or governs the use of restraints by SDSD personnel, including the use of “maximum restraints” and the “recovery position.”

Sheriff's Department Use of Force Addendum F will be produced.” (Id.) In response to most of Plaintiffs' other requests for production, the County simply stated that, “Such records as exist will be produced.” (Id.) Plaintiffs represent that the County did not provide the training video in response to the initial request for production, “gave no indication it possessed a video training, nor did the County later supplement its production to provide a video of the deputies' training.” (Doc. No. 448 at 3; Scott Decl. Ex. A at 5.) Plaintiffs represent they instead were told about the training video by chance from counsel involved in another case against the County in this district. (Doc. No. 448 at 4; Bourassa Decl. ¶¶ 3-7.) Plaintiffs requested the Court issue sanctions against Defendants of “(1) preclude[ing] the County from replying on its cord cuff training to defend any claims at trial and (2) inform[ing] the jury that defendants impermissibly withheld their cord cuff training from plaintiffs when they were required to disclose it.” (Doc. No. 448 at 11.) On February 10, 2022, the Court ordered Defendants to respond to Plaintiffs' supplemental brief. (Doc. No. 449.) On February 14, 2022, Defendants filed a response to Plaintiffs' supplement brief. (Doc. Nos. 454, 455.)

On February 14, 2022, the Court held the pretrial status conference. (Doc. No. 456.) At the pretrial status conference, the Court addressed the discovery violation and ordered a deposition to be taken by Friday, February 25, 2022, at the expense of the County, of the person most knowledgeable from the County and Plaintiffs as to whether the maximum restraint training video was provided during discovery.[2] (Doc. Nos. 460 at 2; 465.) At the pretrial status conference, the Court also indicated it would not rule on Defendants' Rule 50(b) motion until the discovery violation was further addressed. (Doc. No. 459, Telephonic Status Conference Tr. 25-27.) The Court continued the final pretrial conference to Monday, February 28, 2022 at 1:30 p.m. to allow the depositions to take place. (Doc. No. 456.)

On February 22, 2022, the Court also ordered the County to produce its discovery production logs or show the Court how it supplemented Plaintiffs' request for production with the training video. (Doc. No. 456.) On February 23, 2022, Defendants filed an additional supplemental brief on the discovery violation. (Doc. No. 466.) In the supplemental brief, Defendants conceded that after seven years of litigation and the Plaintiffs' dismissal of all the individual deputy Defendants other than Defendant Fischer, they have no record they produced the maximum restraints training video to Plaintiffs. (Doc. No. 446 at 2-3.) Defendants stated that the person most knowledgeable as to whether the video was produced during discovery was deposed on February 22, 2022. (Id. at 2.) Defendants stated that “[a]s to the current issue of whether the County produced the video during the discovery period, the County's investigation thus far has not determined whether the video was produced while the discovery period was open.” (Id. at 2.) Defendants stated that “[t]he County's records do not show whether the video was provided to County Counsel by the Sheriff's Department in response to Plaintiffs' Request for Production of Documents in 2016. The video was not specifically identified in the County's initial response, but subsequent discovery was provided, unfortunately without bates numbering or logging.” (Id. at 3.) Defendants further stated that “[w]hile the Court has ordered the County to produce a discovery production log showing disclosure of this video, the County has no such documentation in its logs. Likewise, supplemental production was made informally on an ongoing basis, and records are incomplete.” (Id. at 3 n.2.) The Court also notes that the training video was not listed on the parties' pretrial order and exhibit lists for any scheduled trial in this case, (Doc. Nos. 263-2, 291, 335, 365-66), nor is there any record of it being shown during depositions or the first trial. On February 27, 2022, Plaintiffs filed an additional supplemental brief on the discovery violation. (Doc. Nos. 474, 478.)

On November 23, 2022, Defendants also filed a petition for writ of mandate, prohibition, or other appropriate relief with the Ninth Circuit. Brief for the Petitioner, San Diego, et al. v. USDC-CASD, No. 22-70027. Defendants request the Ninth Circuit issue a peremptory writ of mandate directing and compelling this Court to (1) rule on Defendants' pending Rule 50(b) motion prior to the commencement of the retrial of this matter, currently schedule to begin on March 2, 2022; (2) not consider any evidence that was not introduced during the first trial, and (3) stay the commencement of the retrial of this matter until this Court has resolved this pending petition, and thereafter further stay the retrial of this matter until after the Rule 50(b) motion has been decided. (Id. at 20.) In the alternative, Defendants request the Ninth Circuit direct and require this Court to show cause as to why the relief prayed for in this petition by the petitioners should not be granted. (Id.)

After the first trial in this case, additional information has come to light that implicates Defendants' failure to produce highly material discovery among other issues. It would be highly prejudicial for the Court to limit its evidentiary rulings, instructions to the jury, potential sanctions for failure to produce evidentiary discovery, and other current action in light of the additional information. Further it would be prejudicial to continue or stay this retrial. The Court has already prescreened jurors and reserved courtrooms. The Court has also already secured a block of time for this trial that works with the schedules of the Court, counsel, and the many expert witnesses and fact witnesses in this case. In light of the entire record, there is not good cause to stay or continue the retrial.

Outcome: Jury verdict in favor of Plaintiff in the amount of $85 million set aside by the Court.

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