The opinion of the court was delivered by: Pratter, J.
The facts in this case begin with a low-speed police chase and end tragically with Mr. Brown in the hospital, having caught on fire after the police officer Defendants attempted to subdue him by using their tasers in close proximity to of Mr. Brown's overturned motor scooter. Defendants now seek summary judgment, arguing that they did not use excessive force and that, even if they did, they are entitled to qualified immunity from liability due to the novelty of the circumstances in this case. They also seek to exclude the testimony of Plaintiff's police procedure expert.*fn1 The Court heard oral argument on March 8, 2012. For the reasons set forth below, the Court will grant in part and deny in part the defense "Daubert Motion" and will deny Defendants' Motion for Summary Judgment.
The facts of this case are largely undisputed. At around 5:00 a.m. on August 24, 2008, Allen Brown left his home in Philadelphia and headed towards his mother's home in Norristown.
Mr. Brown did not own a car or have a driver's license, so he decided to ride a motor scooter that he had been repairing for a friend; the scooter did not have a license plate. Mr. Brown knew he could take a bike trail near Ridge Pike in Conshohocken to get to his mother's house, but to get to the trail, he needed to first travel on the Schuylkill Expressway.
Defendant Trooper Justin LeMaire also happened to be on the Schuylkill Expressway in the early morning hours of the same day, as a part of his duties. Heading west on the Expressway, he noticed a little red light. When he drove closer, he saw that the light belonged to a motor scooter with no plates, ridden by a driver without a helmet or protective eyewear. Trooper LeMaire responded by turning on his lights and siren, in attempt to effectuate a stop of the motor scooter.
Mr. Brown did not immediately pull over. When he eventually did so, and Trooper LeMaire backed up his vehicle to pull over behind Mr. Brown, Mr. Brown took off and headed to Exit 332 of the Schuylkill Expressway. What followed was a relatively low-speed chase. Although there was then little traffic along the route, Mr. Brown did run a red light, swerve across the center line toward oncoming traffic, make at least one U-turn, and otherwise refuse to heed Trooper LeMaire's attempts to effectuate a traffic stop.
During the chase, Trooper LeMaire radioed for back-up. The first responder was Defendant Trooper Peter Burghart, who joined the last few minutes of the chase. In an attempt to evade the two police cars, Mr. Brown turned into an apartment complex, not realizing that the entrance to the complex was blocked by a cable. Mr. Brown's impact with cable knocked him off of the motor scooter, and the scooter, riderless, skidded ahead and fell over. Either when the scooter hit the cable or when it hit the ground, the gas cap of the scooter came off. At some point during the events that followed, gas leaked or spilled from the tank onto the scooter, the ground, and Mr. Brown.
Although the officers told Mr. Brown to stay down, Mr. Brown got up and ran towards the overturned motor scooter.*fn2 Trooper Burghart then took Mr. Brown to the ground near the scooter and attempted to place him in handcuffs. Mr. Brown resisted,*fn3 despite continued verbal commands from Trooper Burghart. While Trooper Burghart continued to try to restrain Mr. Brown, Trooper LeMaire said, "Taser, taser, taser," and then deployed his taser in an attempt to immobilize Mr. Brown so that Trooper Burghart could apply handcuffs. The taser caused Mr. Brown's body to momentarily lock up, but as soon as the current ended, Mr. Brown resumed his struggle. Trooper LeMaire then used his taser three or four more times -- at least once more remotely via probes and at least twice in "drive stun" mode (i.e., with the taser applied directly to Mr. Brown's body). Each use of the taser lasted five seconds. Mr. Brown still did not submit to the handcuffs.
As Trooper LeMaire tasered Mr. Brown, Trooper Burghart disengaged from the struggle and took out his own taser and again told Mr. Brown to get on the ground. When he did not comply, Trooper Burghart deployed his taser,*fn4 causing Mr. Brown to fall to the ground. What happened next is unclear. Trooper Burghart testified that he told Mr. Brown to stay on the ground and place his hands behind his back, but that Mr. Brown ignored the command and got to his feet. Mr. Brown does not recall this happening and points to a taser print-out which shows only a one second gap between Trooper Burghart's first and second deployment of the taser.
In any case, the parties agree that Trooper Burghart did then deploy his taser a second time while Mr. Brown was near the motor scooter, and flames engulfed Mr. Brown. Prior to Trooper Burghart deploying his taser, there is no evidence that Trooper LeMaire told him to stop or that he in any way attempted to prevent or restrain Trooper Burghart from using his taser.*fn5
Trooper LeMaire ran to get a fire extinguisher, returning to use the extinguisher to put out the fire that had also broken out on the motor scooter. Trooper Burghart testified that he, meanwhile, told Mr. Brown to stop, drop, and roll, and that Mr. Brown did so, extinguishing the flames. Mr. Brown does not recall receiving or obeying any such command but agrees that the flames were extinguished. Trooper Burghart testified at his deposition that Mr. Brown then began to "half circle" him, and that Mr. Brown started making threats. Mr. Brown does not recall this and questions Trooper Burghart's credibility as to these facts. The parties do agree that Trooper Burghart then tasered Mr. Brown at least once more, that back-up officers arrived, and that eventually Mr. Brown was placed in handcuffs and taken to the hospital for treatment of his burn and other injuries. Mr. Brown was later charged with multiple traffic violations, receiving stolen property, and resisting arrest. The charge of receiving stolen property was dismissed, and Mr. Burghart pleaded guilty to driving under the influence and fleeing and attempting to elude an officer.
Neither Trooper Burghart nor Trooper LeMaire had ever deployed their tasers in the field before encountering Mr. Brown. In fact, they had each received taser training only a handful of months prior to the encounter -- Trooper Burghart received training in March, 2008, and Trooper LeMaire received training in June 2008. One topic discussed at the training was the potential of tasers igniting flammable materials. For instance, the officers were trained that a taser could ignite certain types of alcohol-based pepper spray, chemicals present in methamphetamine labs, gasoline, gasoline vapors, and drinking alcohol. Both officers testified that they were aware, prior to August 24, 2008, that a taser could ignite flammable materials such as gasoline or gasoline fumes and that gas leaks and/or spills are possible at the scene of a motor vehicle accident. Neither officer gave a thought to the possibility of gasoline or gas vapors at the scene of Mr. Brown's arrest, however. The officers were also trained that the application of the taser was subject to the same statutory and case law requirements as any other law enforcement tool and that reasonableness in the use of force depended on the totality of the circumstances.
In addition to their tasers, each of the law enforcement Defendants had two sets of handcuffs, pepper spray, and a baton with them at the scene of Mr. Brown's arrest. Plaintiff's expert, whose opinion will be discussed in more detail below, opined that the officers could have used pepper spray or a baton to subdue Mr. Brown, or could have waited for the arrival of further back-up personnel.
Federal Rule of Evidence 702, which governs the admissibility of expert testimony, provides:
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, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles ...