Page 1
New Trial Ordered Due to Failure to Disclose Payment to Witness
Ninth Circuit Panel Says Reversal Required Where Public Employee Secretly Received Fee for Testifying for Police in Wrongful-Death Civil Rights Case
By a MetNews Staff Writer
|
|
|
JASON TOVAR forensic pathologist |
The Ninth U.S. Circuit Court of Appeals held Friday that the undisclosed payment of $4,000 in fees by civil defendants to a coroner who identified himself as an independent witness and testified as to the cause of death—a contested key issue at trial—amounts to false evidence which prevented the plaintiffs from fully and fairly presenting their case to the jury, mandating a new trial.
A panel, in a memorandum opinion, reversed an order by Senior District Court Judge William B. Shubb of the Eastern District of California denying the motion for a new trial. The appeal was heard before Circuit Judges Patrick J. Bumatay and Jacqueline H. Nguyen and Senior Circuit Judge Richard A. Paez.
Appealing the denial was Jennifer Landeros, on behalf of herself and her five children, who sued the city of Elk Grove and Elk Grove Police officers Samuel Schafer, Steven Holstad, Justin Parker, Patrick Scott and Jeremy Banks over the death of her husband, Daniel Landeros, who died after defendant police officers compressed his chest with their body weight in detaining him.
Dr. Jason Tovar, a forensic pathologist employed by Sacramento County, performed the autopsy and testified at trial that Daniel Landeros died from methamphetamine-induced cardiac arrest, notwithstanding the fact that cardiac arrest was not mentioned in his autopsy report and despite evidence that Daniel Landeros had complained “I can’t breathe” and began to turn blue before he passed.Defense counsel Bruce Praet, of the Santa Ana firm Ferguson Praet & Sherman, referred to Tovar at trial as an independent witness who had not been hired by either side.
Dr. Theodore Chan, retained by the defendants, also testified that Landeros’ death was caused by methamphetamine-induced cardiac arrest, while Dr. Ronald O’Halloran, retained by the plaintiffs, testified that Landeros died of compression asphyxia.
After trial, the jury returned a verdict in favor of the defendants.
Jennifer Landeros later learned of the post-trial payment to Tovar and filed a motion for a new trial under Federal Rules of Civil Procedure 59 on the basis of false evidence, newly discovered evidence and discovery misconduct.
Motion Denied
In his order denying the motion, Shubb acknowledged:
“[Dr. Tovar] was presented at trial as an impartial expert, not retained by either side, who had nothing to gain personally by testifying in this case. That was the impression that the court, and presumably the jury, got at the time of trial. As it turns out, from his testimony at the hearing on this motion, that was not entirely accurate.”
He continued:
“When someone calls Dr. Tovar on the Sacramento County telephone line to request his deposition or trial testimony about an autopsy he has performed, he transfers the call or asks them to call back on his personal line. He then offers to consult and testify for a fee of $400 per hour….Dr. Tovar does this work on his ‘personal time’ as a sort of ‘side hustle’ and keeps the fee for himself.”
Shubb reasoned that the payment and pre-trial conversations with Praet did not render Tovar an expert witness who must be identified as such under Federal Rule of Civil Procedure 26(a)(2)(B). Noting that Praet did not intend to employ Tovar as a retained expert and simply paid Tovar what the doctor indicated to be his hourly rate, the judge declared:
“The court has serious questions about the propriety of Dr. Tovar’s ability to personally charge $400 an hour for his trial testimony relating to his work as a public servant. However, on the motion for new trial, at issue is whether defense counsel’s conduct during discovery or trial intentionally or inadvertently resulted in the presentation of materially false or misleading evidence or a miscarriage of justice. Plaintiffs have not shown that this to be the case.”
False Testimony
The panel explained that a new trial must be granted where false or perjurious evidence prevents the losing party from fully and fairly presenting his or her case.
Noting that the cause of death was a “critical issue in the case, and the evidence regarding causation was subject to interpretation,” they opined:
“Whether the officers used excessive force thus turned on which experts the jury credited. The defense relied heavily on its portrayal of Dr. Tovar as an independent and trustworthy public servant and of Dr. O’Halloran as a paid expert who would say anything for his clients.”
They continued:
“After touting Dr. Chan’s credentials as a ‘[n]ationally recognized expert,’ defense counsel told the jury that it would ‘also...hear from a third doctor, and that’s Dr. Jason Tovar, who hasn’t been hired by either side…. Dr. Tovar’s independent testimony will be Daniel Landeros died of a sudden heart attack resulting from methamphetamine intoxication and other self-induced stressors.”
The judges reasoned that the jury might have viewed Tovar’s opinion more critically if they had known that Tovar was being paid by defendants. They wrote:
“Given the importance of expert credibility in this case, the district court abused its discretion by concluding that Dr. Tovar’s false and misleading statements about his independence did not prevent plaintiffs from fully and fairly presenting their case.”
The case is Landeros v. Schafer, 22-16866.
Copyright 2024, Metropolitan News Company