Elk Grove's 'I can't breathe' case remanded for new trial by 9th Circuit; Who directed the testimony of Dr. Tovar at the center of the decision?

Appearing before the U.S. Court of Appeal 9th Circuit appealing the case Jennifer Landerso v. Samuel Schafer is plaintiffs attorney Eric Grant. | 

A few years before the murder of George Floyd while in custody with Minneapolis Police sparked a national civil rights movement, there was a similar case in Elk Grove, Calif. In that case, Daniel Landeros died while in custody after being taken into custody by Elk Grove Police.

Landeros died on November 30, 2016. Here is an Elk Grove News story of the incident as disclosed by the Elk Grove Police Department. 

Following standard procedure after the death of a suspect while in custody, the Sacramento District Attorney's office investigated the incident. In July 2017, the district attorney's office found no evidence that the use of excessive force contributed to Mr. Landeros' death. 

Undeterred, Landerso's widow and family filed a federal civil suit that went to trial in the U.S. District Court in Sacramento in July 2022. A jury agreed with the defendant's claim.

After the jury found the defendant, the plaintiff's attorneys made a significant finding - one of the witnesses called to testify for the Elk Grove Police Department was a paid expert witness, but that arrangement was not disclosed during discovery or the trial. Of significance, the witness, Dr. Jason Tovar, M.D., was also a Sacramento County employee.

Along with Dr. Tovar, two other physicians testified about the cause of death of Mr. Landersos - one for the plaintiff and another defense witness. The two defense witnesses said the death was from cardiac arrests, while the plaintiff's attorney said it was asphyxia.   

As noted in one of the plaintiff's appellate pleadings, a police body camera video showed Landeros's "pleas to the officers that 'I can't breathe' and 'you're frickin killing me' were to no avail." Additionally, the plaintiff's brief claims "for more than three minutes forced 'chest down' on pavement by four officers collectively weighing 900 pounds."

Elk Grove News has not viewed the police body camera videos cited in the briefs.

As explained in the briefs, "In fact, Dr. Tovar was using his position as the County's chief medical examiner to run what the district court rightly called a "side hustle," whereby he would offer expert testimony as a putatively disinterested public servant with the patina of independence and impartiality — all the while being personally compensated by one of the parties in exchange for favorable testimony."

Appellate justices Bumatay, Nguyen, and Paez ruled for the plaintiff and ordered another trial. The panel's decision wrote, "Dr. Tovar's false and misleading testimony prejudiced plaintiffs' case. The cause of Landeros's death was a critical issue in the case, and the evidence regarding causation was subject to interpretation."

As it relates to Elk Grove, taxpayers should question the role of Elk Grove city attorney Jonathan Hobbs. Was Hobbs instrumental in hiring Dr. Tover at $400 an hour to obscure that he was a paid expert witness and not an independent voice as presented to a jury?

Furthermore, the defense counsel did not issue the check for Dr. Tovar. It came from the city of Elk Grove. 

Unless there is a new or secret authorization process, the expenditure must be approved by someone in the city attorney's office.

At a minimum, the implication is city attorney Hobbs knew that Dr. Tovar was being paid with taxpayers' dollars to obscure the jury. Whether this behavior on the part of all those defending the city becomes a matter of great scrutiny is up to higher authorities to decide.

Ultimately, this case shows how Hobbs operates the city attorney's office, and it is not a favorable picture.  

The video below shows the arguments made by plaintiff attorney Eric Grant before the appellate court. 

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Sid Vicious said...

Looks like a cover up involving Jon Hobbs. My guess is if it gets referred to the state bar he'll throw one of his lackeys under the bus. Gotta keep that fat paycheck secure!

Renegade said...

Wow, our legal department just continues to struggle. Is anyone at City Hall keeping score on Mr. Hobbs malfeasance and perhaps even actionable negligence as it relates to "our" business. It seems he can't handle our business in-house despite a well-paid staff AND he continues to be shown as unable to even delegate his duties without creating serious problems for us taxpayers. Mr. Behrman, how do you respond to all of this?

Deejay Blutarsky said...

Like so many lawsuits that have been filed against the City, I bet this one will never see the light of day again and will disappear with a settlement check and an NDA.

Eye on Elk Grove said...

Previous Elk Grove City Attorneys were ousted for much less offensives. Yet Jonathan Hobbs remains after so many instances of bad lawyering (just two examples of many, Downtown Ford and P3 International). Not to mention the mess with Oak Rose. Bonta vs. Hobbs? Are you kidding me?

Begs the question: What does Hobbs have on the Elk Grove City Council? Did the MAGAS on the Elk Grove City Council, with their own shenanigans that needed covering up, provide Hobbs with his personal Trump card?

Steve L said...

Eye: you’re right, it does beg the question.

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