K.J.P. v. San Diego County

Dollar Amount: $85 million

Case Name: K.J.P. v. San Diego County

Type of Case: Wrongful Death

Court: Southern District

Judge(s): Judge Marilyn L. Huff

Plaintiff Lawyers: Law Offices of Mark Fleming, Mark F. Fleming; McKenzie Scott PC, Timothy A. Scott

Defense Lawyers: San Diego County Counsel's Office, Sylvia Soliman Aceves, Ronald C. Lenert; Manning Kass, Ellrod, Ramirez, Trester LLP, Mildred K. O'Linn

Facing hardball by the defense in litigation over the 2014 custody death of a 32-year-old husband and father of two, plaintiff lawyers Mark F. Fleming of Singleton Schreiber LLC and Timothy A. Scott of McKenzie Scott PC persevered. After a first trial ended with a mistrial when jurors deadlocked, the lawyers learned that the defense had committed significant discovery violations.

Lucky Phounsy died after sheriff's deputies responded to a call for help he'd made himself, claiming people were trying to kill him. The deputies tased him, hit him with a baton, hogtied him and applied force even while he was restrained in an ambulance with his head in a spit sock. He was pronounced dead of cardiac arrest.

At the retrial, jurors awarded Phounsy's heirs $80 million, evidently upset by the violations and by the conduct of one of the sheriff's deputies later imprisoned for unrelated assaults.

"We had to overcome discovery issues the county chose to create," Scott said. That included failure to give the plaintiff a training videotape that showed that deputies violated their training in their use of the hogtie restraint. The county also failed to disclose that Phounsy had no drugs in his system despite years of claiming otherwise.

Mark F. Fleming

"The judge gave strong curative instructions, really held their feet to the fire" during the second trial, Fleming said. "Those two violations were huge."

Even so, Fleming and Scott still had to confront photos showing deputies injured in the struggle with Phounsy. "We argued that once a subject is fully secured, you can't continue to apply unreasonable force," Fleming said. "Tim was masterful in his closing argument weaving all the facts together." K.J.P. v. County of San Diego, 3:15-cv-02692 (S.D. Cal., filed Dec. 12, 2015).

One glaring fact concerned Deputy Richard Fischer, who is currently imprisoned for assaulting women on duty. Fisher rode in the ambulance with Phounsy and pressed hard on his head and shoulders, despite paramedics' instruction to stop.

Attorneys for the defense declined to comment or did not return messages.

Post-trial, U.S. District Judge Marilyn L. Huff ordered a new damages proceeding and the parties settled for $12 million. Huff held that the evidence didn't support the large award. "That $85 million for an in-custody death was about three times larger than any other such result we could find," Scott said. "She did uphold all the liability findings, and we couldn't put the family through a third trial."

--John Roemer