Damiani v. Allen

APRIL DAMIANI as Administrator for the ESTATE OFJOSE DAMIANI, JR., and on behalf of herself, Plaintiff, v. MICHAEL ALLEN, BOBBY TROUTMAN, SHANE STAGGS,PAUL SUDING, TOWN OF WEST BADEN SPRINGS,and TOWN OF FRENCH LICK Defendants.

4:16-cv-00053-RLY-DML

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION

August 28, 2018

ENTRY ON THE PARTIES' MOTIONS TO EXCLUDE AND LIMIT EXPERT TESTIMONY AND ON THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

On September 4, 2015, Trooper Michael Allen and Officer Robert "Bobby" Troutman responded to a 911 call concerning a domestic strangulation in French Lick, Indiana. April Damiani, the 911 caller, summoned law enforcement to help her husband, Jose Damiani, Jr., calm down after he had been drinking and acting strangely. Unfortunately, April's plea for help ended tragically: less than a minute after arriving, the officers shot and killed Jose.

April brought the present action alleging that the officers had deprived Jose of his constitutional rights and had violated Indiana law. She also alleges a variety of claims against different police departments and some of the investigating personnel. The parties have filed opposing Daubert motions, and each Defendant has moved for summary judgment.

As explained below, none of the proposed experts will be barred from testifying, but certain opinions will be limited or excluded. Plaintiff's claim of excessive force and corresponding state law claims should be resolved by a jury, but Defendants are entitled to summary judgment on her remaining claims. Part I sets forth the background facts related to Jose's death. Part II discusses the Daubert motions. Part III provides the analysis and resolution of each motion for summary judgment.

I. Background

A. Events leading up to the shooting

Around 1:15 p.m. on September 4, 2015, Plaintiff came home from work and greeted Jose. (See Filing No. 136, Ex. T-3 Interview of April Damiani ("April Interview") at 3:00¹ - 3:11).² He was working in the backyard and had been drinking prior to Plaintiff's arrival. (See id. at 3:20 - 3:30; April Dep. at 64:1 - 3). The two finished their conversation, and Plaintiff returned to the house to change out of work clothes. (April Interview at 3:29 - 3:33). At some point later in the afternoon, Plaintiff's friend, Mimi Groff, drove her to the bank so that Plaintiff could cash her check from work. (Id. at 3:40 - 3:56).

When Plaintiff returned home from the bank, Jose had become intoxicated. (Id. at 4:20 - 4:45). He had consumed a portion of a pint of vodka and four beers from a six-pack—both of which he had purchased earlier that day. (Id.). She tried to have a conversation with him, but his behavior was noticeably erratic. (Id. at 5:05 - 5:40). At one point, Jose was upset with Plaintiff explaining that she and the children were ungrateful. (Id.). At another point, Jose stood up and gave Plaintiff a hug and told her that he loved her. (Id.). Eventually, something "flipped his switch to crazy." (Id. at 6:00 - 6:17). Jose stood up and began choking Plaintiff. (Id.). After a brief struggle, Jose told Plaintiff to call the police, and he exited the house to the backyard. (Id. at 6:18 - 6:22). Plaintiff went to the bathroom and called 911. (Id. at 6:34 - 6:37). She told the operator that her husband had choked her and that he had been drinking. (Id. at 6:41 - 6:46).

B. Response from law enforcement

Across town, West Baden Springs Officer Bobby Troutman and Indiana State Trooper Michael Allen were side-by-side in their patrol cars talking. (Filing No. 146-5, Deposition of Michael Allen ("Allen Dep.") at 129:7 - 14). They had just finished handling a previous situation at a local gas station. (Filing No. 130-1, Affidavit of Bobby Troutman ("Troutman Aff.") at 2, ¶ 6). Because of the limited number of officers on staff at each police department, West Baden Springs police officers frequently respond to situations in French Lick, Indiana and vice versa.³ (Id. ¶ 7). It is also common for each department to receive assistance from the Indiana State Police. (Id.).

Just as Trooper Allen was about to go to another county, Officer Troutman received a 911 call over the Orange County dispatch concerning a domestic dispute at 8399 West Ohio Street in French Lick, Indiana—the Damiani residence. (Id. ¶¶ 6, 10). Trooper Allen also heard the dispatch because he has a county radio installed in his patrol car. (See Allen Dep. at 131:2 - 10). The dispatch advised:

I have a pending 1016 . . . Clear signal eight address of 8399 West Ohio Street. 8399 West Ohio Street, Damiani residence. The female advised her husband 1056 attempted to strangle her. She's now in the bathroom. Also advised there are small children there. He's out in the shed at this time.

(Filing No. 130-2, Orange County Dispatch Transcript at 2:7 - 15). A "1016" is a domestic disturbance, and "1056" means the individual is intoxicated. (Allen Dep. at 122:19 - 25, 123:1 - 11). Officer Troutman interpreted "pending 1016" as a strangulation in progress. (Troutman Aff. at 2, ¶ 8). Trooper Allen decided to assist Officer Troutman, and so both officers drove to the Damiani residence. (Id. ¶ 10); (Allen Dep. at 133:1 - 19). The officers were en route at 3:52 p.m. and arrived at 3:53 p.m. (Troutman Aff. at 2, ¶ 13).

Trooper Allen ascended the porch with Officer Troutman right behind him. (Filing No. 146-3, Deposition of Officer Troutman ("Troutman Dep.") at 43:1 - 7). After the officers' knocked and announced their presence, Plaintiff answered the door and told the officers Jose was out back. (Allen Dep. at 211:13 - 17); (April Interview at 7:07 - 7:11). She directed them to go around the side of the house. (See Allen Dep. at 215:1 - 7, 219:1 - 15). While the officers were moving around the side of the house, they heard metal clanking sounds emanating from the backyard. (Troutman Aff. at 3, ¶ 16). Trooper Allen told Officer Troutman to get his taser ready. (Id.). Plaintiff had gone through the house and now was standing on a hill as the officers arrived in the backyard. (See April Dep. at 92:15 - 25, 93:1 - 13). The officers shouted Jose's name twice as the metal clanking sounds continued. (April Interview at 7:11 - 7:13); (Allen Dep. at 231:2 - 9).

What exactly happens next is disputed. The officers explain that they saw a male subject moving around and working in the shed. (Troutman Aff. at 3, ¶ 17; see Allen Dep. at 233:17 - 24). The officers then asked Jose to come out and show his hands, but Jose did not respond. (Troutman Aff. at 3, ¶ 18; Allen Dep. at 232:15 - 22). When Jose finally emerged, he was holding a five-foot iron pipe down by his side, staring at Officer Troutman. (Troutman Aff. at 3, ¶¶ 19, 20; Allen Dep. at 238:24 - 25, 239:1 - 5). He began walking toward Officer Troutman, ignoring orders to drop the pipe. (Troutman Aff. at ¶ 21; Allen Dep. at 243:19 - 25, 244:1 - 23, 247:16 - 18). Jose then raised the iron pipe above his head as if to strike Officer Troutman. (Troutman Aff. at ¶ 22). When Jose was approximately eight feet away, Officer Troutman fired his taser. (Id. at 4, ¶ 23). The taser was ineffective, and so Jose continued moving forward. (Id. ¶ 25; Allen Dep. at 282:6 - 22). Officer Troutman then pulled out his firearm and fired one shot from his hip, while at the same time, Trooper Allen fired six times in rapid succession. (Id. at 5, ¶¶ 32, 34; Allen Dep. at 273:16 - 25, 274:1 - 4). Jose was struck by six shots, all of which were fatal. (See Filing No. 146-16, Autopsy Report at 2).

However, Plaintiff presents a very different account. She explains that Jose was working in the shed with the radio on. (April Dep. at 123:9 - 12). When the officers reached the backyard, Officer Troutman yelled Jose's name, and he appeared inside the shed holding an iron pipe. (Id. at 124:13 - 24). As Jose was walking out of the shed, but before he reached the doorway, one shot was fired. (Id. at 141:11 - 22). After the first shot was fired, Jose continued to walk forward and stepped out of the shed. (Id. at 126:5 - 6; 142:4 - 20). Six more shots were then fired, and Jose collapsed over. (Id. at 130:17 - 21). The officers did not fire the taser before shooting Jose. (See April Interview at 7:22 - 7:37; see Filing No. 146-52, Officer Troutman's Taser Log at 20) (noting taser was deployed at 3:58 p.m. which was approximately four minutes after shooting).⁴ At no time did Jose lunge at the police officers or raise the pipe in a threatening manner. (April Dep. at 130:3 - 16; Filing No. 146-8, Rex Martin Dep. Ex. at 1, ¶ 4; Filing No. 146-10, Morgan Wilcoxen Dep. Ex. 2 at 1 ¶ 4).⁵

C. Events post-shooting and subsequent investigation

Immediately after the shooting, Officer Troutman advised dispatch that shots had been fired and requested an ambulance. (Troutman Aff. at 5, ¶ 37). He also advised that he had deployed his taser, and it was ineffective. (Id.). Trooper Allen told Officer Troutman not to move or touch anything until others arrived to the scene. (Troutman Dep. at 105:24 - 25, 106:1 - 2). Soon after the shooting, the officers heard screaming from neighbors behind them. (Allen Dep. at 155:15 - 25). One of these neighbors, Morgan Wilcoxen, came out of her house to see what had happened. (Wilcoxen Dep. Ex. 2 at 2 ¶ 5). The officers told her "to take [her] ass in the house before [she got] shot." (Id.). Rex Martin, another neighbor, approached officers but was told "to get back in the house before [he] get[s] shot." (Martin Dep. Ex. at 2, ¶ 5; see also Troutman Dep. at 108:13 - 15). During this time, neither officer checked Jose or administered first-aid. (See id. at 106: 6 - 10); (Allen Dep. at 155:15 - 25).

Within five minutes, an ambulance arrived at the scene, and paramedics tended to Jose. (Troutman Aff. at 5, ¶ 38). Michael Owen, a paramedic with IU Health Emergency Medical Transport Services, along with others, administered chest compressions, bag valve mask ventilations, and multiple IVs to try and...