Facts

On Feb. 9, 2002, Marine Sergeant Todd Sommer, 23, began experiencing gastrointestinal symptoms for which he sought outpatient medical care on Feb. 10 and 12. On Feb. 18. Sgt. Sommer died suddenly. Decedent's wife, plaintiff Cynthia Sommer, called 911. The military police arrived on the scene, as the couple and their four children lived in Marine Corps base housing. A Navy pathologist performed an autopsy at Balboa Naval Hospital in San Diego, but failed to identify an anatomical cause of death. Specimens of Sgt. Sommer's tissues were subsequently frozen for further investigation into the cause of his death. Some specimens were "fresh-frozen" and forwarded to the Armed Forces Institute of Pathology (AFIP) lab in Washington, D.C., where initial toxicological testing yielded negative results. A military death review panel of the Naval Criminal Investigative Service (NCIS) recommended heavy metal testing. AFIP performed heavy metals tests in 2003, and reported finding high arsenic levels in the decedent's liver, kidney, and blood.

NCIS also conducted its own investigation on Sgt. Sommer's death, and presented their investigative findings to the San Diego District Attorney's Office in 2004. The District Attorney's Office initially referred NCIS investigators to San Diego Chief Medical Examiner Glenn Wagner. In 2005, Dr. Wagner issued an amended death certificate stating that the sergeant's death was caused by poisoning, and that the manner of death was homicide. The San Diego District Attorney's Office later initiated plaintiff's prosecution, alleging that she had murdered her husband for financial gain. Plaintiff was subsequently taken into custody.

In 2006, plaintiff pleaded not guilty to the murder charge, and in 2007, the jury convicted her of murder. The judge later ordered a new trial on grounds of ineffective assistance of Sommer's retained defense counsel.

In preparation for retrial, Deputy District Attorney Gunn requested that a Canadian lab, that hadn't previously been consulted in the case, test the previously untested tissue specimens retained at Balboa Naval Hospital. The Canadian lab reported finding no arsenic in those specimens. In 2008, the prosecution dismissed the criminal case without prejudice against Sommer and she was subsequently released from custody.

Sommer then sued the United States under the Federal Tort Claims Act, and also San Diego District Attorney Bonnie Dumanis, Deputy District Attorney Laura Gunn, and San Diego Chief Medical Examiner Glenn Wagner under 42 U.S.C. section 1983.

PLAINTIFF'S CONTENTIONS:
Sommer contended that defendants were negligent or were reckless in the investigation of Sgt. Sommer's death. Sommer argued that defendants could have done more, and that they acted in reckless disregard of the truth. As a result, she was wrongfully arrested and prosecuted. With regard to the prosecutors, Sommer argued that they were not entitled to prosecutorial immunity. that Gunn deliberately fabricated evidence during the investigation of her husband's death, and that Gunn's active participation in the factual investigation that led to her prosecution gave rise to liability. Sommer also contended that Gunn conspired to prosecute her without having any direct evidence of a homicide or any direct involvement with arsenic.

Following two years of incarceration, Sommer brought the civil rights lawsuit against defendants Dumanis, Gunn and Wagner for libel, slander, and false imprisonment. Sommer's claim against the U.S. government alleged causes of action for negligence, false imprisonment, malicious prosecution, abuse of process, and intentional infliction of emotional distress.

DEFENDANTS' CONTENTIONS:
The U.S., Dumanis, Gunn, and Wagner moved for summary judgment, arguing that Sommer's lawsuit failed to raise triable issue of fact.

The U.S. argued that the formalin-fixed, paraffin-embedded tissue the Canadian lab tested, was inferior and wasn't suitable for testing. The U. S. contended the test results on the fresh-frozen tissue, performed by AFIP - who defense characterized as "internationally recognized" - were valid and claimed that the decedent died with a lethal amount of arsenic in his body.

Damages

Sommer sought $20 million in damages.

Result

U.S. District Judge Cathy Ann Bencivengo found that Sommer failed to make a substantial showing that defendant Wagner made deliberately false statements or recklessly disregarded the truth when he amended Sgt. Sommer's death certificate, in violation of her constitutional rights. The court determined that Dumanis was entitled to prosecutorial immunity and dismissed her from the lawsuit. The court also found that Sommer failed to identify any event where Gunn falsified any evidence or knew or should have known that she wasn't guilty, couldn't show that Gunn used coercive or abusive investigative techniques, or that Gunn knew or would have known to yield falsified evidence to support the arrest warrant, violating her constitutional rights. The court also granted Gunn's motion for summary judgment on the ground that Gunn's conduct was protected by qualified immunity. The court likewise granted summary judgment in favor of the U.S. government in connection with Sommer's claims that AFIP scientists negligently or improperly performed the testing that found arsenic in Sgt. Sommer's frozen specimens, and her claims that the NCIS investigators negligently or improperly performed the criminal investigation that led to her prosecution and conviction. Accordingly, the court entered judgment in favor of defendants on all of Sommer's claims.