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Judge Snubs Expert as Taser Trial Approaches

CENTRAL ISLIP, N.Y. (CN) - A forensic pathologist cannot testify that repeated police Tasering contributed to the death of a schizophrenic man, a federal judge ruled.

On Feb. 4, 2004, Southhampton resident David Glowczenski collapsed and died after local and county police stunned him at least four times with a Taser. Authorities claim the so-called "less lethal" weapon fired four to five times. Glowczenski's family found nine marks on his skin.

Pre-existing medical conditions could have played a role in Glowczenski's death, but his estate wants to hold authorities responsible.

A wrongful death case against Southampton, Suffolk County, the officers and Taser International has been crawling through the federal court system in New York's Eastern District for eight years. The parties are now challenging which expert witnesses will be allowed to take the stand.

On Thursday, U.S. Magistrate Judge William Wall nixed forensic pathologist William Manion who would attribute "up to 40 percent" of Glowczenski's death to the shocks.

Suffolk and Southampton authorities claim that Glowczenski, a schizophrenic, was off his medication and had a psychotic episode that led him to knock Officer Marla Donovan to the ground.

Judge Wall summarized the position of the Suffolk and Southampton authorities in a recent 19-page order.

"Sgt. [Arthur] Schucht told Officer [Brian] Platt to remove the probe cartridge from his Taser M26 ECD and to drive-stun Glowczenski," the order states. "Platt applied several ECD drive-stuns to Glowczenski's backside and below his waist, with no apparent effect. The ECD was then abandoned in favor of pepper spray, which was also not effective in calming Glowczenski. Glowczenski was finally restrained, and paramedics were called, as standard procedure following the use of pepper spray.

"When the paramedics arrived, they found Glowczenski in cardiac arrest, without pulse or respiration, and started resuscitation measures. Glowczenski's presenting heart rhythm was asystole, not ventricular fibrillation (VF), the expected rhythm from an electrical event. Glowczenski was taken to Southampton Hospital where he was pronounced dead."

Upon testing, police say they found the Taser had been fired four times within 39 seconds.

Dr. James Wilson, the Suffolk County deputy medical examiner, called Glowczenski's death "natural" after performing an autopsy, and concluded that the death was caused by "acute exhaustive mania due to schizophrenia."

Wilson, who is named as a defendant in the case, also claimed that four or five shocks could have delivered the nine marks on Glowczenski's skin.

Glowczenski's family, on the other hand, said the data retrieved from the Taser had been corrupted, and the output was much higher than reported. They say that Donovan was not trained in dealing with an emotionally disturbed person.

They say that Taser and Dr. Wilson colluded to hide the true cause of death while advancing the "exhaustive mania and excited delirium" theory.

Manion, the forensic pathologist, says Glowczenski's actual cause of death was "positional asphyxia augmented by repeated TASER [ECD] discharge causing muscle contractions."

Noting that Manion, an assistant medical examiner in New Jersey, does not have experience testifying in Tasers, Wall forbade him from taking the stand here.

"I find that Dr. Manion, while he may be a qualified expert in other cases, is not qualified to testify about the impact of the Taser used on Mr. Glowczenski, and that his proposed testimony is inherently unreliable," Wall wrote. "He has inadequate understanding or knowledge about tasers and how they work, specifically about the differences between probe deployment and drive stun modes and the differing impacts those modes have on the human body."

Toward the end of his 19-page order, Wall granted the family permission to call three other witnesses: Michael Morse, an electrical engineering professor at the University of San Diego; Alan Leiken, a health care policy professor at State University of New York at Stony Brook; and Edward Mamet, a former captain with the New York Police Department who now consults on police procedures.

"Although there are weaknesses regarding each expert, those weakness go to the weight of their testimony and the testimony will be allowed," Wall wrote. "Whatever deficiencies or weaknesses the defendants discern in their testimony can be explored in cross-examination."

Amnesty International's Jared Feuer says that 277 people in the U.S. have died after being shocked by Tasers between June 2001 and October 2007.

In 2008, the Canadian Medical Association cast a skeptical eye on Taser's "excited delirium" defense, in an article stating that the condition does not appear in any Diagnostic and Statistical Manual of Mental Disorders.

Taser will try to toss the case through summary judgment in May.

If that fails, the case will go to a jury trial.

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