From [HERE] and [HERE] San Diego County lawyers are seeking to wipe out an $85 million jury award to the family of man who died after being restrained by sheriff’s deputies in 2015, or get a new trial in the lawsuit that generated the case.
County lawyers contend the verdict stemming from the negligence and wrongful death lawsuit was “incurably infected with error” and that the trial was riddled with rulings that hurt the county’s case.
The request is detailed in motions filed in U.S. District Court in San Diego earlier this month by county lawyers. They are the first moves in what will likely be a protracted fight to reduce or completely overturn the verdict returned March 15 in favor of the family of Lucky Phounsy.
One motion asks U.S. District Court Judge Marilyn Huff to set aside the verdict, contending the evidence was not sufficient to support the jury’s conclusion, The San Diego Union-Tribune reported. A second seeks a new trial, or a reduction in the award, arguing there were a series of trial errors and that the amount awarded was excessive.
Phounsy, 32, died on April 13, 2015.
It took nearly seven full years from the confrontation inside Phounsy’s home — which involved a dozen deputies at one point — to the jury verdict. Lawyers for the family plowed through reams of documents and conducted more than 70 depositions.
The case twice went to the 9th U.S. Circuit Court of Appeals, as county lawyers fought for qualified immunity — legal protection from lawsuits that government officials can claim — for the deputies and officials involved in the death.
Both attempts failed, but they added years, and perhaps hundreds of thousands in costs, to the case. In September, the case finally went to trial — but ended up with a hung jury. A second trial began in February and this time ended with the $85 million verdict.
Phounsy died after a struggle during which deputies put him in maximum restraints — a way of immobilizing someone by binding their ankles with a strap and tethering it to a second strap around the waist.
The way Phounsy was restrained, and that deputies did not properly monitor his condition for nearly 30 minutes and that his head was forcibly pressed down while he was in an ambulance to the hospital by another deputy, caused him to slowly suffocate, lawyers for the family said.
Paramedics put a sock over his face on the way to hospital, according to the lawsuit. Phounsy’s heart stopped on the way to the hospital. He was resuscitated, but died several days later.
The county medical examiner concluded his death was accidental and the result of the long struggle with deputies, combined with the effects of the drug ecstasy he had taken several days before.
But lawyers for the family disputed that conclusion and argued that the conduct of the deputies caused him to suffocate to death.
They pointed to deputies binding Phounsy’s hands and ankles in restraints, failing to monitor his vital signs and continuing to restrain him when one deputy forcibly held his head down while he was in an ambulance.
Fatal encounter
The 32-year-old Phounsy had gone to a music festival four days before the April 13, 2015, confrontation, where he ingested the drug Ecstasy, court records say. He returned home but, perhaps because of the effects of the drug, he was unable to sleep for three days.
On the day of his son’s birthday he became more erratic and paranoid, Fleming said. His wife Loan and other family members said he should go to the hospital. But as they readied for the trip, Phounsy called 911 himself and told the dispatcher that his family was in danger, and someone was trying to harm them.
His wife then got on the phone and told the dispatcher Phounsy was unarmed. Two deputies arrived, went inside and began to speak with him. When one tried to handcuff him, getting one cuff on his wrist, Phounsy became alarmed. A deputy fired a Taser, and Phounsy began to fight back.
Soon 10 more deputies had arrived. They tackled him and Tasered him twice more, and struck him several times with batons. Phounsy was put in the restraints, taken outside the home and eventually to the hospital.
In the ambulance, former Deputy Richard Fischer held Phounsy’s head down toward his chest for nearly the entire ride, the restraints still in place. Fisher later said he did so because Phounsy was continuing to struggle.
When Phounsy arrived at the hospital his heart had stopped. A week later he was removed from life support and died.
Years after the incident, in 2019, Fischer pleaded guilty to battery charges in an unrelated case following accusations brought by 16 women who said he had fondled, hugged or tried to kiss them. He was fired from the department, which has since paid out nearly $5 million in settlements from those cases. [MORE]
Lawyers for the family must still file their arguments opposing the county motions. In a statement, attorneys Mark Fleming and Timothy Scott said the county is still evading responsibility for Phounsy’s death.
“The rehashed arguments raised by the County have already been rejected" by courts several times,” said Scott. Fleming said that the bid to cut the money award disrespects “both the value of Lucky’s life and the enormity of his loss to his family, as well as the hard work and careful consideration of the jury.”
