## FIL ED JUL 18 , 20 11 LEO NARD GREEN, Clerk NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION

F ile Nam e: 11a0493n.06 No. 09-6083 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

BUD LEE; CINDY LUNDMA N, as next friend and as natural parents of

P atric k Lee, dece ased,
P laintif fs-App ellants,

v. M E T R O P O L I T A N G O V E R N M E N T O F NAS H VI L L E AN D DA VI DS O N COUNTY, TENNES SEE ; J ONATHAN MAYS; JAMIE S C R U G G S ; C H R I S T O P H E R B R O O K S , Ind ividu ally and in thei r Of fi cial Capacities, TASER INTERNATIONAL, INC.; RONALD W. SERPAS, Chief of P olice, Ind ividu al and Of fi cial Capacity; JASON CREG AN ; P AUL SMITH, P olice Of fi cer s, Ind ividu ally and in their Of fi cia l Capacities; JUSTIN P INK ELT ON, Sergeant, Ind ividu al and Of

fi cial Capacity; SHARR AFF MALLERY; JOHN WRIG HT; RYAN S COTT; WAYNE F ISHE R, P olice Of fi cer s, Ind ividu ally and i n their Off

icial Capacities, Defendan ts-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F ROM THE UNITED STATE S DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESS EE

O P I N I O N

BEFORE: COLE, McK EAGU E, and GR IF F IN, Circ uit Jud ges. McK eague, Circuit Judge. Patrick L ee w as esc orted out of a conce rt and then attempted

to e lude arr est by sever al police office rs. I n their protra cted e ffor ts to subdue L ee, w ho was unde r the influence of drug s, office rs used differ ent forms of forc e, including tasers. Shortly afte r he was

arr ested, L ee beca

me unresponsive and later died. L ee’ s pare nts filed the instant suit on his behalf ,No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al alleg ing that the offic ers a nd Nashville violated their son’s constitutional rig hts, and that the t aser

wa s a d ef

ec tive product. The district court g rante d summary judgme nt in favor of several Def endants, and a jury verdic t later absolved the rema ining Def endants of liability

. P l ai n t i ffs
appea led. For

the re asons t hat foll ow, we AF F IRM the orders and judgment of the district c ourt, and we decline to g rant Plaintiffs a ne w trial. I. Background A. F actual History On September 22, 2005, Patrick L ee (“L ee” ) attended a conce rt at the Merc y L oung e in Nashville, Tenne ssee. After g etting too close to the stag e and a perf ormer who was on stilt s, Merc y L oung e employ ees escor

ted L ee out of the venue. Although the owner and a bouncer wer e able to
g et L ee outside, L ee re fu s ed to leave the premises and persisted in what can only be descr ibed as

s t ra n ge behavior

. Eventually , the owner called the Metropolitan Nashville Police Depa rtment (“MNPD” ) for assistance

. The first office r to respond was Def endant Christopher Br ooks (“B rooks”)

. L ee approa ched Br ooks’s police cruiser , and Br ooks g ot out of the cruiser to speak with
L ee. L ee’ s response s to Br ooks’s questions wer e incoher ent: L ee said that his name was “B lue” and he would point to the sky when he was asked what was g oing on. After h e as k ed fo r L ee’s i d en t ification, Br ooks testified that he felt that L ee invaded his space about three times, an d

eventua lly “kind of lunge d” at him. Br ooks then order ed L ee to plac e his hands behind his back.
I n i t i ally , L ee complied with Br ooks’s order s, but as soon as Brooks gra bbed L ee’ s hands, Br o o k s testified t hat L ee then jerke d awa y , ripped his shirt off, spun a round, and lung ed at B rooks aga in.
Br ooks responde d by using pepper spray on L ee. L ee then took off running , and Br ooks followed. - 2 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al L ee responde d to an order to stop, and g ot on the g round, but as soon as Br ooks approa ched, he fled
ag ain. At some point during the chase , L ee—w ho h ad stripped off all of his clothes and was nude—eve ntually

fell down. B rooks attempted to subdue him, only to have L ee e scape ag ain. At about the same time, other NMPD office rs beg an responding to a radio call for assistance that was place d by Br ooks. The second office r to arr ive, Def endant J onathan May s (“Ma y s”), was arme d with

a Taser X26, which is manufa cture d by Def endant TASE R I nterna tional, I nc. (TASER). A few seconds late r, De fenda

nt Ry an Scott (“Scott”) also arr ived on sce ne. Br ooks sug g ested that May s use the taser on L ee. After g iving sever al war nings to no avail, May s deploy ed the taser for the first time. The taser had the intended eff ect, and L ee immediately 1 fell t o the ground. During the nex t two minutes May s rec alled ac tivating the ta ser six more ti mes with littl e or no eff

ect on L ee. Be cause many of the taser activations did not incapa citate L ee, it is unclea r how many of t he activations actua lly resulted in the t aser delivering elec tricity to L ee. A t the same time, Br ooks and Scott attempted to g ain control of L ee. Br ooks testified that he and Scott tried to subdue L ee just a second or two afte r L ee hit the g round, and that Br ooks’s arms g ot tang led
up in the taser wires. Scott testified that he asked May s if he was done apply ing the taser befor e he

A taser d ev i ce i s t y

pically deploy ed by pulling a trig g er that rele ases two probes in the 1 direc tion of the targ et. The probes are tethere d by tiny wires that c onduct an e lectric al cha rg e that is transfe rre d to the targe t wh en the probes attach to the person. The shock is desig ned to incapa citate the person for about five seconds. So long as both probes are attache d t o t he person, the office r may deliver subsequent shocks by pulling the trig g er of the device

. A shock may also be applied by

direc tly touching an individual with taser, a technique of

ten ca lled a “dr ive stun.” - 3 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al attempted to subdue L ee beca use he was conce rned about g etting shocked. Other witnesses testified 2
that th e o ff

i cers backe d awa

y from L ee while he was being tased. The office rs had difficulty subduing L ee beca

use he was strug g ling while naked and swea ty , and L ee also partially moved underne ath a car . The office rs wer e able to g et a single handcuf f onto one of L ee’ s wrists. Thinking that L ee was under control, May s remove d his ta ser car tridg e. Howeve r, L ee broke awa y from the office rs and then r an at Ma y s who direc tly

administered a

brief shoc k to L ee. At roug hly the same time, more NMPD office rs arr ived to the scene , including Def endants
J amie Scrug g s (“Scr

ug g s”), Way

ne Fisher (“F isher”) , J ohn Wright (“Wrig ht”), and J ustin Pinkelton (“Pinkelton”). Scrug g s, who was also arme d with a taser, testified that the first thing that he noticed wh en he arr ived on site was the “loud popping and cra ckling sound” of taser use. Acc ordi n g t o Scrug g s, his training told him that this was the sound that a taser made when it was activate d but did

not have a connec tion with the targ et. Scrug g s first saw L ee running betwee n car s, swea ting “prof usely ,” with a single handcuf f on. Scrug g s further testified that he had never seen someone behaving the way L ee was that evening

. L ee came at Scrug g s who order ed him to stop, and war ned
L ee tha t he would use his taser. The warning s wer e ignore d, and S crug g s activate d his taser onc e L ee was about 3 fee t awa

y , incapa citating him. L ee g ot up ag ain, “almost immediately ,” and Scrug g s deploy ed the taser a second time, with the intended eff ect. I n what Scrug g s descr ibed was an eff ort
to “inca pacitate him so we could take him into custody ,” h e d ep l o y ed t h e taser a third time, to no eff ect, a nd L ee r an aw ay

ag ain.

Appar ently , Scott’s conce rn was unwa rr an t ed beca use office rs can touch the body of a 2 suspect who is being tased without conc ern of being shocked. - 4 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al May s, who had retrie ved a second taser car tridg e, came upon L ee, and ag ain deploy ed his

taser afte r issuing war

nings. The probes of the taser struck L ee, but L ee g rowled and pulled the probes from his body , rathe r than falling to the g round. Somehow, but without the use of the taser, 3
L ee appea

rs to have g one to the g round ag ain. Scrug g s, who had also retrie ved a second car tridg e,
went up to L ee, who was flailing and try ing to g et up ag ain. Scrug g s deploy ed his taser ag ain, afte r issuing verba l war

nings and commands, beca use he wanted to g ive the office rs an opport unity to subdue L ee b ef

o re he g ot back up. Scrug g s testified that L ee fell back to the g round, but “pre tty quickly g ot up” aga i n. Scrug g s further testified t hat he pulled the t rig g er two more ti mes without eff ect, but on the next pull the taser worke d and L ee fell back, hitting his head on an SUV’s step bar. At this point, “[o] ffice rs moved in very quickly and started to wre stle with him and g et him in custody .” Stil l, while the office rs wer e try ing to subdue L ee, Scrug g s felt that he neede d to direc tly apply the taser two more ti mes, beca use L ee “was stil l actively resisting , appea red very strong , [ ] wasn’t tired from the previous strug g le, and he was very slippery so it was hard for them to g et him handcuf fed.” Following the second direc t application of the taser, the office rs wer e able to place the h an dcuff s on L ee. Three office rs, Smit h, Mallery , and Creg an, wer e require d to pull L ee’ s ar m s toge ther in orde r to handc uff him.

This was the ninth and last time that May s deploy ed his taser. The download from the taser 3 i n d i ca t es t h at it was deploy ed one more time, but it appea rs this was when May s remove d th e car tridg e and shocked himself. Ag ain, it is unclea r how many of these applications actua lly resulted i n t h e d el i very of elec tricity to L ee’ s body , and May s testified that only the first application incapa citated L ee. - 5 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al Be cause L ee w as still st rug g ling, Cre g an placed one knee be tween L ee’ s shoulder, and his other knee to L ee’ s lower back, to keep L ee on the g round. Creg an testified that he thought this was the safe st technique for both L ee and the other office rs. Creg an further testified that L ee never g ave any indication that he wa s having trouble bre athing , and that he w as in this posit ion for at least 10 minutes befor e an ambulance arr ived on scene . At roug hly the same time as the ambulance arr ived, Creg an testified that it seeme d like L ee passed out. He could still detec t a pulse, b u t the office rs rolled L ee on his back and noticed that his lips wer e blue. Parame dic L aura Hitchcox (“H itchcox”) responde d to the sce n e an d was the first para medic to see L ee. She testified that she found the office rs standing around L ee, who was now on his back, and she noticed that he was not brea thing. Hitchcox did not find a pulse and beg an to administer CPR. L ee was hooked up to a monitor, but the para medics wer e not able to employ an elec trical shock beca use L ee’ s hear

t wa s n o t in a shockable rhy

thm. L ee was rushed to the hospital and kept on life support until September 23, 2005,

at which point the attending doctors decla red L ee brain dead. L ee’ s life support was remove d and he died the ne x t day

. An autopsy reve aled that L ee had L SD and marijuana in his sy stem at the time of his death. The medical examiner conclude d that L ee’ s death was due to “excited delirium,” which is a

car diorespira tory event that can occur to someone suffe ring from substance abuse who went throug h

a long phy sical strug g le. The autopsy also reve aled that L ee had a sever ely aciodic blood level, but the m edica l examiner explained that the aciodic blood level wa s n ot the cause of death because it

occur red afte r the car diorespira tory event. Plaintiffs’ medical experts sug g est instead that L ee died

- 6 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al from metabol i c acidosis, which, they arg ue, could have been cause d by taser- induced muscle

contra ctions coupled with a de privation of oxy g en due to Cre g an’s we ight on L ee’ s chest ca vity

. B. Pr ocedural History Bud L ee and Cindy L

undman, L ee’ s pare nts, broug ht the prese nt action as next fr i en d s i n
state court on J anuar

y 27, 2005. The complaint alleg ed various product-liability claims under
Tenne ssee tort law ag ainst TASER, and other state-law claims ag ainst the Def endants Offic ers and the Metropolitan Gover

nment of Nashville and Davidson County (“N ashville”). Addi tionally , Plaintiffs broug ht cl ai ms of excessive use of forc e under 42 U.S.C. § 1983 ag ainst the Def endant Offic ers, and a § 1983 failure to train claim ag ainst Nashville. De fe ndants remove d the case to fe d era l court on Fe bruar

y 10, 2006, and the district court later dismiss ed sever al of the st at e- l aw claims that wer e broug ht ag ainst Nashville afte r deciding that they should be litigated in state court. Lee v. Metro. Gov. of

Nashville and Davidson Cnty. , No. 3:06-0108, 2008 WL 501327, at *5 (M.D.
Tenn. F eb. 21, 2008). Prior to the case g oing to trial, the district court issued sever al order s that are rele vant to the questions prese nted on appea l. On J anuar y 27, 2009, the district court g rante d summary judgme nt
to TASER, finding that Plaintiffs failed to prese nt sufficie nt evidenc e to s h o w t hat t he Taser X26 was defec tive, or t hat TAS ER had failed to war n about t he dange rs of exc es s i v e t as er use. Lee v. Metro. Gov. of Nashville and Davidson C nty. , 596 F.Supp. 2d 1101, 1126 (M.D. Tenn. 2009). I n the same or der, the district court gra nted s ummary judgme nt to seven Defe ndant Officer s (F isher, Pinkelton, Scott, Wright, Br ooks, Mallery and Smit h), finding that the forc e used by those office rs

was not excessive as a matter of law. Id

. at 1116. Fur thermore , the district court held that those - 7 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al office rs could not be he ld liable for f ailing to inter

vene in any use of excessive force ag ainst L ee. Id

. at n.8. The rema ining state-law battery claims and § 1983 excessive forc e claims ag ainst May s, Scrug g s and Creg an, and the § 1983 failure to train claim ag ainst Nashville, proce eded to a jury trial.
L ate in the trial, Plaintiffs abandone d the battery claim. R. 643, Trial Tr., at 2916. Then, af t er a 15-day trial, the jury returne d a verdic t in favor of M ay s, Scrug g s, and Creg an, finding that the Def endant Offic ers did not u s e excessive forc e on L ee. The jury did not rende r a verdic t on the § 1983 failure to train claim ag ainst Nashville beca use the jury instructions prohibited the jury from considering the claim if the jury did not first find that one of the Def endant Offic ers used excessive forc e on L ee. T his appea l followed. II. Analysi s Plaintiffs ha

ve appea led a number of issues rela ted to the district c ourt’s g rant of summar y judgme nt to TASER a

nd sever al Def

endant Offic ers, and the trial. We will pr ocee d throug h these issues in turn, beg inning with the g rants of summar y judgme nt. A. Summ ary Judgm ent Plaintiffs appea l the district court’s gr ant of summary judgme nt to TASER and De fenda nt Offic ers Fisher , Pinkelton, Scott, Wright, Mallery , Smit h and Br ooks. We conduct de novo revie w of a district court’s decision to g rant summary judgme nt. Mazur v. Y oung , 507 F.3d 1013, 1016 (6th Cir. 2007). “Summary

judgme nt is proper if the e vidence , taken in the lig ht most favorable to the nonmoving party , shows that there are no g enuine issues of materia l fac t and that the moving party is entitled to a judgme nt as a matter of law.” Id

. (citing Matsushita Elec

. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986); Fe d. R. Civ. P. 56(c) ). The moving party initially bear s the - 8 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al burden of showing the absenc e of any g enuine issue s o f materia l fac t, but once the movant has satisfied that burden, “the nonmoving party must come forwa rd with s p e c if

ic fac ts showing that there is a g enuine issue for trial.” Matsushita , 4 7 5 U. S

. at 587 (interna l quotation marks and citation omitted). The nonmovant must, howeve r, “do more than simply show that there is some metaphy sical doubt as to the materia l fac ts,” id

. at 586, there m u s t b e evidenc e upon which a

rea sonable jury could return a verdic t in favor of the non-moving party to cre ate a “g enuine” dispute, Hende rson v. W

alled Lake Consol. Schs , 469 F.3d 479, 487 (6th Cir. 2006). We will addre ss the two
g rants of summar

y judgme nt in turn. 1. The Defendan t Off

icer s The dist rict cour

t gr anted summary

judgme nt to Fisher, Pi nkelton, Scott, Wright, Mallery , Smit h and Br ooks afte r finding that none of these office rs used any amount of forc e on L ee that rose
to the level of excessive forc e. Lee , 596 F. Supp. 2d at 1116. On appea l, Plaintiffs do not arg ue that
any one of these Def

endants used excessive forc e, instead, they arg ue that summary judgme nt w as inappropria te beca

use the office rs could still h av e b ee n liable for failing to preve nt the use of excessive forc e ag ainst L ee. I t is indeed p o s s i b l e to hold a police office r liable under § 1983 for failing to act to preve nt the use of forc e when cer tain circ umstances are met, see, e.g., Smoak v. Hall , 460 F.3d 768, 784 (6th Cir. 2006), but that presuppose s that another office r used ex cessive forc e
ag ainst the claimant. Her e, the jury found that none of the other office rs (May s, Scrug g s or Creg an) used ex cessive force ag ainst L ee an d , as wil l be seen in Part I I .C. infra , we decline to disturb that finding

. Be cause we may aff irm the district court’s gr ant of summary judgme nt on g rounds ot her

- 9 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al
t h an t hose employ ed by the di strict court, see Thornt on v. Fed. Express Corp. , 530 F.3d 451, 45 6 n.2 (6th Cir. 2008), and beca use the jury ’s verdic t fore closes holding these office rs liable for failing to act, we AF F IRM the district court’s g rant of summar y judgme nt as to these De fenda nts. 2. TASER The district court, afte r finding that Plaintiffs had abandone d sever al of their claims ag ainst TASER, g rante d summary judgme nt to TASER on Plaintiffs’ claims for neg lige nce and strict products li ab i l i t y . Plaintiffs have only appea led the g rant of summary judgme nt on the product liability claim, which i s g overne d by the Tennessee Products L iability Act. See Tenn. Code Ann. § 29-28-102( 6). Plaintiffs’ claim is that war nings issued by TASER f ailed to ide ntify the scope of the dang er a

nd harm that c ould result from the r epeated use of the taser on a subject. To establish

a product-liability claim under an inadequa te-wa rning theory , the plaintiff m u s t s h ow that (1) the

wa rn i n g wa s inadequa te; (2) the product was rende red unrea sonably dang erous beca use of the inadequa te war

ning; and (3) the inadequa te war nin g p ro x i mately cause d the claimed injury

. See
Barnes v. Kerr Corp. , 418 F.3d 583, 590 (6th Cir. 2005) (citation omitted). The Tenne ssee Supreme Court has provided sever al fac tors for deter m i n i n g whether a product’s war ning is adequate: (1) whether the warning adequa tely indicated the scope of the dange r of the product; (2) whether the

war ning communicated the seriousness of the harm that could result from misuse of the product; (3) whether the phy sical aspec ts of the war ning would aler

t a rea sonably prudent person to the dang er; (4) whether the war

ning is a simple direc tive that fails to indicate the conseque nces that might follow from a failure to heed the war ning; and (5) whet h er t h e means to convey the war ning wer e
appropr iate. Id . (citing Pittman v. Upjohn Co. , 890 S.W .2d 425, 429 (Tenn. 1994) ). - 10 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al The warning at i ssue was sent by TAS E R o n J une 28, 2005—less than t hree months prior

to the i ncident at issue in the i nstant litigation—to the NMPD on the s ubject of “Restra int During TASER Sy stem Application.” R. 347-10, Training Bulletin, at 1. The bulletin was issued as a result of TASER’s belief “that there may be a training issue wher e arr est teams are avoiding touching the subject during the TASER device application.” Id

. The one-pa g e bulletin contained five numbere d points, including in rele vant par t: 1. I t is important to empha s i z e t h at arrest teams can handle the subject during a TASER device application. Fa ilure t o beg in restra int proce dures dur i ng a TASER device appli ca t ion can unnece ssarily prolong the duration or number of TASER device applications administere d to a g iven subject. 2. Repea ted, prolong ed, and/or conti n u o u s ex posure( s) to the TASER elec trical discharg e may cause strong m u s cl e contractions that may impair brea thing and respira tion, particularly

when the pr obes ar e plac ed ac ross the chest or diaphra g m. Users should avoid prolong ed, extended, uninterrupted di s ch ar g es or extensive multipl e charg es whenever prac ticable in order to minimi ze the p o t en t i al for overexertion of the subject or potential impairment of full ability to brea t h e over a protrac ted time period. 3

. Particularly when dealing with persons showing sy mptoms of ex cited delirium, use of the TASER sy stem should be combined with phy sical restra int techniques to minimi ze the total duration of the strug g le and minimi ze the total duration of TASER sy stem stimul ation. Ex cited delirium is a potentially fata l conditio n ca used by a complex set of phy siologica l conditions including over- exertion of the subject a nd inability for suffici en t respira tion to maintain normal blood chemistry

. These subjects are at signific ant and potentially fata l health risks fr o m fu rt her prolong ed exertion and/or impaired br eathing

. Id

. TASER conclude d the bulletin as follows: “Please distribute this bull et i n and the attache d

war nings to all TASER device opera tors within y our age ncy .” Id . The “ attache d war nings” wer e the updated overa ll war

nings about the T A SE R d e v ic e , w h ic h incorporated the specific war nings that

wer e conta ined in the bulletin. Id . at 2–3. - 11 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al I n g ranting summary judgme nt for TASER, the district court made three finding s reg arding this claim. First, the court held that TASER’s war ning was adequate as a matter of law beca use the bulletin: (1) adequa

tely indicated the scope of the dang er; (2) communicated the seriousness of the harm that could re s u l t fr om misuse; (3) would provide an aler t to a rea sonably prudent person beca use the format was concise and focuse d; and (4) the use of a separ ate and specific bulletin was

an appropr iate means to convey the war ning. Lee , 596 F. Supp. 2d at 1128. Fur thermore , the court found that Plaintiffs made no attempt to show that the two other element s o f t h e failure to war n claim—that the alleg edly defe ctive war ning made the product unrea sonably dang erous and that the alleg edly defe ctive wa

rning proxi mately

cause d L ee’ s—were satisfied. Id

. On appea l, Plaintiffs have made the same mistake, focusing their entire arg ument on whether TASER’s war

ning was adequa

te as a matter of law, and ignor ing the other two elements of the claim.
Acc ording ly , we AF F IRM the decision of the district court on the g rounds that Plaintiffs have failed

to challeng e the district court’s finding s on these two elements, and we decline to rea ch the question of whether the warning was a dequate as a matter of law. See B & H Med., L.L.C

. v. ABP Admin.,
Inc. , 526 F.3d 257, 265 (6th Cir. 2008) (noting that we may aff irm a district court’s judgme nt on the basis that the appe llant has failed to c halleng e nec essar y finding s). B. Motion to Reopen Discove ry Plaintiffs arg

ue that the district court err ed in deny ing their motion to reope n discovery based
upon the Dec ember 2008 rele ase of a Canadian repor t tha t f ound that some tested TASER de vices produce d a highe r amount of elec trical curr ent than T AS E R t h oug ht was possible. We revie w a district court’s denial of a motion to reope n discovery for abuse of discretion. Audi AG v. D’Amato , - 12 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al 469 F.3d 534, 541 (6th Cir. 2006). I n considering a mot ion to reope n discovery , t he court should consider (1) when the mo v i n g party lear ned of the issue that is the subject of discovery ; (2) how
reope ning discovery would aff ect the ruling below; (3) the leng th of the previous discovery period; (4) whether the moving party was dilatory ; and (5) whether the adver se party was responsive to prior discovery reque sts. Id

. There is no question t h at P l ai ntiffs wer e not dilatory in their eff ort to reope n discovery beca use they filed the motion shortly afte r the repor t was issued. Howeve r, it appea rs highly unlikely that the repor

t would have aff

ecte d the ruling below. First, as the district court noted, the elec trical output examined in the study was based on the elec trical pulse that is cre ated to discharg e the taser, which is not the s ame as the electrica l pulse that is g ener ated when t he taser i s actua lly applied to the human body

. See Lee , 596 F. Supp. 2d at 1129. Thus, it appea rs that the repor

t did not have any rele vanc e t o the questi on of how much electricity might have passed into L ee’ s body

. Second, as the district court also noted, there are rea sons to question the cre dibilit y and reliability of the repor t. The repor t involved a small sample siz e of taser device s, and the repor t was not peer revie wed. Id

. Moreove r, two of the three signa tories to the study have done rese arc h on behalf of TASER’s chief competitor. Id

. at 1130. Fa ced with the possible irrele vance of the study , Plaintiffs have not pointed to a par ticular aspect of the di strict court’s ruling that was incorrec t, nor have they explained how additional discovery would have impacted the district court’s g r a n t o f s u mm a r y ju d g me n t to T A SE R. Acc ording ly , we find that the district court had a sound basis for deny ing the motion to re open discovery and did not abuse its discre tion.

- 13 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al C. Trial Issues 1. Evid entiary Issues Plaintiffs arg ue that a new trial i s war rante d beca

use the district made sever al err oneous evidentiar y ruling s. We revie w a district court’s ruling s for abuse of discretion. Nolan v. Mem phis City Schs ., 589 F.3d 257, 264 (6th Cir. 2009). An abuse of discretion occur s if we are left with the “def inite and firm con v i ction that the court below committed a clea r err or of judgme nt in the conclusion it rea ched upon a weig hing of the rele vant fac tors or wher e the trial court improperly
ap p lies the law or uses an err oneous leg al standard.” Paschal v. Flagstar Bank , 295 F.3 d 5 6 5 , 576–77 (6th Cir. 2002) (c i t at i o n , internal quotation marks and altera tion omitted). “‘B road discretion is g iven t o the di strict courts in d et er m i n ations of admiss ibilit y . . . and thos e decisions will not be li g htly overturne d.’” Nolan , 589 F.3d at 26 5 (quoting Tompkin v. Phil lip Morris USA,
Inc. , 362 F.3d 882, 897 (6th Cir. 2004)). Fur thermore , even if the district court’s evidentiar y ruling

was err oneous, we will not g rant a new trial if the ruling constituted harmless er ror. Id

. at 264–65 (citation omitted). Plaintiffs challeng e three evidentiar y ruling s: (1) the admission of evidenc e reg arding L ee’ s criminal re cord; (2) the admission of evidenc e of L ee’ s use of illeg al drug s; and (3) the admission of evidenc e that L ee may have had hallucinog enic mushrooms in his stool at the time of his death. Plaintiffs do not arg ue that the d i strict court applied the incorre ct leg al standard in admitting this evidenc e. I nstead, Plaintiffs contend tha t the district c ourt err ed in its application of Fe d. R. Evid. 403 (“Rule 403") , which provides: “Althoug h rele vant, evidenc e may be excluded if its proba

tive value is substa n t i al l y outweig hed by the dang er of unfair prejudice , confusion of the issues, or - 14 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al misleading the jury , or by considerations of undue delay , waste of time, or needle ss prese ntation of cumulative evidenc e.” “[E] vidence which tends to sug g est a decision on an improp er b as i s” can

cre ate unf air pre judice. Paschal , 295 F.3d at 579 (citation and internal quotation ma rks omitted).
I n the particula

r context of examining a district court’s Rule 403 decision, we “‘look at the evidenc e in a light most favor able to its proponent, maxi miz ing its probat i v e v alue and minimi zing its prejudicia l eff

ect.’ ” United States v. Perry , 438 F.3d 642, 648 (6th Cir. 2006) (quoting United States v. Zipkin , 729 F.2d 384, 389 ( 6th Cir. 1984)).
Lee ’s History of Crim inal Behavior and Drug Usage. Plaintiffs contend that the following evidenc e reg arding L ee’ s history of criminal behavior and drug use should have been excluded: (1) that L ee went to jail for a failed drug test and ear ned his G.E.D. while he was in j ai l ; (2) that just prior to his death, L ee was arr ested for a D.U.I and traff icking and possession of various controlled substances; and (3) that L ee had a history of using various illega l drug s. Plaintiffs corr ectly conce de that this evidenc e was rele vant to the pecunia ry value of L ee’ s life, which, under Tenne ssee law, is “base d upon consideration of (a) the life expectancy of the dece ased; (b) his ag e, condition of health, and streng th; ( c) his c apac ity for ear ning money throug h any skill, and any art, trade or profe ssion; and (d) his persona l habits as to sobriety and industry .” Buziashvili v. Inman , 106 F.3d 709, 716 (6th Cir. 1997) (citing Davidson Benedict C o. v. Severson , 72 S.W

. 967, 977 (Tenn. 1903)). Criminal history is certa inly

rele vant to this inqui ry , and at lea st one Tenne ssee court has held that criminal history is so ref

lective of a dece dent’s ability to honestly ear n a livelihood that it was reve rsible error
to exclude such evidenc e. See Hensley v. Garbin , 782 S.W .2d 480, 481 (Tenn. Ct. App. 1989). Stil l,

- 15 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al Plaintiffs contend that the district court should not have admitted this evidenc e beca use it was unduly prejudicia l and cumulative. At trial, the pecunia

ry value of L ee’ s life was an issue that was actively litigated. For example, during opening statements Plaintiffs arg ued that the evidenc e would show that L ee was a h ar d wo rk er and person of g ood char acte r who was using drug s “re cre ationally .” Fur thermore, Plaintiffs arg

ued that L ee was on trac k to have a succe ssful car eer as a master car penter or audio
eng ineer , and Plaintiffs introduc ed the testimony of an economist to e stablish L ee’ s future ear ning potential. Evidence that L ee a bused drug s and wa s rec ently involved in serious criminal beha vior

was cer tainly probative as to whether L ee’ s ability to honestly ear n a livelihood was dim i n ished. Whil e it is true that such evidenc e cast L ee in a neg ative light, the district court soug ht to minimi ze the prejudicia l eff

ect of this evidenc e in two way s. First, the district court excluded so m e o f the evidenc e reg arding L ee’ s rec ent arr est, including documentar y evidenc e and statements made by L ee during the ar

rest, as well as the fac t tha t he was indicted and fac ing char g es. R. 642, Tr. Tra ns., at 2749–50. Second, following the most damag ing testimony , t h e d i strict court g ave a limit ing instruction to the jury : “Membe rs of the jury , at this point I want to g ive y ou a limit ing instruction. This information is being admitted only as it may be rele vant to the pecunia ry value of Mr. L ee’ s life.” Id . at 2770–71. This instruction minim ized the potential prejudicial e ffe ct of the evidenc e. See United States v. Talley , 164 F.3d 989, 1000 (6th Cir. 1 9 9 9 ). I f, for example, the parties had disputed whether L ee was under the influence of drug s at the time of this evidenc e, then perha ps we could see how this e vidence might have prejudice d the jury ’s deter mination of that question. But, the par ties do not dispute that L ee w as under the influenc e of drug s, and we do not see a ny way in - 16 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al which this evidenc e might have aff ecte d the outcome of the trial. For these rea sons, we find that the district court did not abuse its discretion in admitting the evidenc e of L ee’ s criminal history and past drug use. Dr. Guillam ondegui’s Testim ony. Plaintiffs also object to an aspec t of the testimony of Dr. Osca r Guillamondeg ui, one of the phy sicians who attended to L ee afte r he was admitted to the hospital. Specifica l l y , Dr

. Guillamondeg ui testified that he noticed unusual long- stemmed mushrooms in L ee’ s stool that looked like hallu c inoge nic mushrooms. R. 641, Trial Tr., at 2505–07.
Fur thermore , Dr. Guillamondeg ui testified that based on his observa tion he order ed tox icolog y tests
to be performe d on the s too l , b ut the t ests wer e never completed beca use L ee passed away

. Id

. at 2506–07. First, with reg ard to whether this testimony was specula tive, Dr. Guillamondeg ui’s testimony fit within the g uidelines of Fe d. R. Evid. 701, which provides that a lay witness may testify

on those opinions that are “(a ) rationally based on the perc eption of the witness, (b) helpful to a clea r understanding of the witness’ testimony or the deter mination of a fac t in issue, and (c) not based on scientific, technica l, or other specia liz ed knowledg e . . .” Dr. Guillamondeg ui specific ally noted that his testimony on this issue was based on his persona l experience and not on the basis of his medical expertise. This testimony had probative value as further evidenc e of L ee’ s history of drug use, and also

as evidenc e of L ee’ s possible drug use immediately befor e the incident. Moreove r, any prejudicia l eff ect of this testimony was minimi zed by Dr. Guillamondeg ui’s admission that he was not an expert

on the matter, Pl a in

ti f f s ’ o p portunity to cross-e x amine Dr. Guillamondeg ui, and the expert testimony offe red by Plaintiffs’ own witnesses that the mushroo m s s ee n b y the doctor could not have been - 17 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al hallucinog enic mushrooms. Fur thermore , even if the jury g ave undue weig ht to this lay testimony beca use the witness was a doctor, it is difficult to see how it could have aff ecte d the outcome of the trial beca use i t was alre ady undisputed that L ee was on hallucinog enic drug s at the time of the incident. Thus, even assuming that t h e ad m ission of this evidenc e was prejudicia l, it was still harmless err or, and acc ording ly , we find that the district court did not err in admitting this testimony

. 2. Closing Argume nt Plaintiffs also arg ue that Def ense counsel made inapprop riate statements reg arding L ee’ s history of criminal activity and drug use during closing arg uments. To be g rante d a new trial on this
g round, Plaintiffs “must show both that t h e cl o s i n g arg ument was improper and that [t hey wer e] prejudice d by the impropriety , that is, that there is a rea sonable probability that the jury ’s verdic t was influence d by the improper arg ument.” Fuhr v. Sch. Dist. of City of Hazel Park , 364 F.3d 753, 760 (6th Cir. 2004). Fur

thermore , wher e the party failed to object to th e cl o s i n g arg ument, this Court place s a more substantial burden of showing prejudice on the party seeking a new trial. Id

. (citing Strickland v. Owens Corning , 142 F.3d 353, 358 ( 6th Cir. 1998)).
Most of the statements made by Def ense counsel wer e simply acc urate repr esenta tions of the trial testimony that was admitted reg arding L ee’ s history of criminal activity and drug use. Fur ther,

o ur revie w of the transcr ipt shows that Def ense counsel was using the testimony for the p u rp o s e rebutting Plaintiffs’ arg uments reg arding the pec uniary value of L ee’ s life: So y ou must decide whether or not y ou find more cre dible the fanta sy of [t he expert witness] as to this brig ht, responsible ever y day working p er s o n who was g oing to ear n all of t his money

leg ally throug h his blood, sweat and tear s, or whether or not y ou wer e rea lly dealing with someone else, beca use y ou hear d testimony from at least

- 18 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al
two people in this courtroom who have also said that they purcha sed drug s from him

. . . . R. 644, Trial Tr., at 3343–44. The only portion of the closing arg ument that we find troubling is that Def ense counsel sug g ested once that L ee was a “tra fficke r” of drug s. Id

. at 3343. There was some evidenc e that L ee had been cultivating drug s and selling them to friends and family , but it does not
appea r that there was evidenc e that L ee’ s drug selling activity went bey ond that, as the “tra fficke r” label sug g ests. Stil l, assuming for a moment that this statement was improper, Plainti ff s did not object to it, and they cannot show that they suffe red substantial prejudice as a result of the comment. I t can ha rdly be said that ther e is a rea sonable probability that this sing le instance of exagg era tion, during a leng thy trial, would have influence d the jury ’s verdic t, particula rly when the comment was unrela ted to the question of whether excessive forc e was used. Fur thermor e, any prejudice that might have resulted from this statement would have been minimi zed by the court’s instruction to the jury : “Evidenc e does not include any statement of the attorney s during the t rial, i ncludi n g closing
arg uments. You must decide for y ourself whether y ou believe the fac ts show what the attorney s have
arg ued they show.” R. 590, J ury I nst., a t 6. Be cause Plaintiffs c annot demonstrate plain err or, we find that this statement does not war rant g ranting a new

trial. 3. P reponderance of the Evidence Plaintiffs reque st that this Court g rant a new trial beca use the verdic t returne d by the jury in favor of May s, Scrug g s, and Creg an was ag ainst the clea r weig ht of the cre dible evidenc e. Plaintiffs made a simil ar arg ument below, in their motion for a new trial, prese rving this issue for appea l. We revie w a district cour

t’s decision t o deny a new trial on the basis of the we ight of the evidenc e for

- 19 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al abuse of discretion. Barnes v. City of Cincinnati , 401 F.3d 729, 743 (6th Cir. 2005). “‘I n ruling on a motion for a ne w t rial based on the g round that the ve rdict is ag ainst the weig ht of the evide nce, the trial court must compar e the opposing proofs, weig h the evidenc e, and set aside the verdic t if it is of the opinion that the verdic t is ag ainst the clea r weig ht of the evidenc e.’” Id

. (citing J.C. W yck off & Assocs., Inc . v. Standard Fire Ins. Co. , 936 F.2d 1474, 1487 ( 6th Cir. 1991)). Plaintiffs a

rg ue that the district cour t a bused its discr etion in de ny ing the motion for a new trial beca use the district c ourt declined to make cr edibility deter minations reg arding the testimony of various witnesses. I n considering Plaintiffs’ weig ht of the evidenc e arg uments, the district court considere d the rea sonablene ss of three con clusions: (1) whether the jury could have rea sonably deter mined that May s’s use of the taser was not an excessive use of forc e; (2) whether the jury could have rea sonably deter

mined that Scrug g s’s use of the taser was not an ex cessive use of force; and (3) whether the jury could have rea sonably deter mined that Creg an did not use excessive forc e. I n analy zing eac h of these conclusions, the district court considere d the evidenc e proff ere d by both parties, and specific ally noted that both parties offe red compelling evidenc e. See Lee v. Metro. Govt. of Nashville , No. 3:06-0108, 2009 WL 2462209, at *6–10 (M.D. Tenn. Aug

. 10, 2009). Ultimately , as to ea ch conc lusion, because there was compelling evidenc e in both direc tions, the district court

rea soned t hat t he jury must have affor ded more cre dibilit y to the t estimony of the police office rs. The district cour

t declined to re make those c redibility deter minations. Plaintiffs’ contention that the district should have rec onsidered the credibilit y of the witnesses relies on a misunderstanding of our prec edents. The purpose of allowing the district court
to ree x amine the e vidence in considering a mot ion for a new tria l is to ensure that the jury did not - 20 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al
return a verdict t h at has littl e or no basis in the evidenc e prese nted at trial. But wher e there was probative evidenc e prese nted to the jury that supports the jury ’s ultimate verdic t, it is not within the
prov i n ce o f the court to overturn the jury ’s decision to acc ept that evidenc e. I n other words, “[a] verdic t is not unrea sonable mere ly beca use other infere nces or conclusions could have been draw n

or beca use other results are more reas o n ab l e. ” Nolan , 589 F.3d at 264. Moreove r, “‘[w]it ness

cre dibilit y is solely within the jury ’s province , and this court may not rema ke cre dibilit y deter mi n at i o n s .’” McD onald v. Petree , 409 F.3d 724, 731 (6th Cir. 2005) (quoting United St ates v. L .E. Cooke Co., Inc. , 991 F.2d 336, 343 (6th C ir. 1993)); see also Holmes v. City of Massillon , 78 F.3d 1041, 1047 (6th Cir. 1996) (noting that a trial judg e may not “substitute[ ] hi s judgme nt of the fac ts and the cre dibilit y of the witnesses for that of the jury ”). Acc ording ly , the district court’s decision t o decline to rema ke credibility deter minations was proper, an d cer tainly not an abuse of discretion. Plaintiffs also ref

er this court to arg uments m ad e at the district court by ref ere nce in the appellate brief. This Court has expressly held that this pra ctice is not permitted and, there fore , we decline to addre ss those arg uments. Northland Ins. C o. v. Stewart Titl e Guar. Co. , 327 F.3d 448, 453 (6th Cir. 2003) (“[W] e join the many circ uits that have expli citly disallowed the incorporation by ref ere nce into appe llate brief s of documents a

nd pleading s filed in the district court.” ).
For all of t hese reasons, we AF F IRM th es e d ec i sions of t he dis trict court, and we decline to overturn the jur

y ’s ver dict in favor of

May s, Scrug g s and Creg an.

- 21 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al D. The Jury Instructions and Municipal ity Liabi lity Plaintiffs also contend that a new trial is war rante d beca

use the jury instructions should have allowed the jury to consider whether Nashville was liable for failing to train the Def endant Offic ers under the t h eory that the collective actions and inactions of the office rs resulted in the use of excessive forc e ag ainst L ee, e ven if no individual offic er w as found to have used excessive for ce. We revie w a district co u rt ’s jury instructions for abuse of discretion. In re Scrap Metal Antitrust Liti

gation , 527 F.3d 517, 536 (6th Cir. 2008). The “inquiry into jury instructions is limit ed

t o whether , taken as a whole, the instructions adequately inform the jury of th e re l ev an t consi d er at i o n s an d provide the jury with sound basis in law with which to rea ch a conclusion.” Pivnick v. W

hite, Getgey & Mey er Co., LPA , 552 F.3d 479, 488 (6th Cir. 2009) (citation omitted).
Howeve r, even err oneous instructions do not require reve rsal unless the instructions are “conf using, misleading , and

prejudicia l.” Id

. (empha sis a dded). Thus, we will “‘ not reve rse a decision on the basis of an err oneous jury instruction wher e the err or is harmless.’” Id

. (quoting Barnes v. OwensCorning Fiberglas Corp. , 201 F.3d 815, 822 (6th Cir. 2000)). Rule 51 of the Fe dera l Rule of Civil Procedur e gover

ns jury instructions, ob

j ec t i o ns and errors. Gene rally , a party may only assig n an

err or in two instances: “(A ) an err or in an instruction actua lly g iven, if that party proper ly objected;

or (B ) a failure to g ive an instruction, if that party proper ly reque sted it and—unless the court reject ed the reque st in a definitive ruling on the rec ord—also proper ly objected.” Fe d. R. Civ. P. 51(d)( 1). I f the issue was not prese rved in one of those two way s, we have the discretion to consider plain err ors that aff

ect the substantial rig hts of the party

. S ee Fe d

. R

. Civ. P. 51(d)( 2); see also Alsobrook v. UPS G round Freight, Inc. , 352 F. App’ x 1, 2 (6th Cir. 2009) (noting that our re view - 22 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al of plain err ors in jury instructions is discretionar y ). Plain err or revie w is a “ver y high standard,” and the appellant has the burden to de monstrate plain err or. Alsobrook , 352 F. App’x a t 2–3 (citations omitted). Moreove r, the advisory committee’s note to Rule 51 sug g ests that “the plain err or standard is less likely to be met i n ci v i l ca s es t h an in criminal case s.” Id

. at 3 (citing Fe d. R. Civ. P. 51 advisory committee’s note (2003))

. I f plain err or does exis t, we then “‘e x amine the proce eding s in their entire ty

in the l ight of the proofs at t rial, t o deter mine whether the errors affec ted s ubstantial rig hts,’” such that a new trial is warr anted. Id . at 3 (quoting Rush v. Ill. Cent. R.R. , 399 F.3d 705, 715 (6th Cir. 2005)).
Be fore d el v i n g i n to Plaintiffs’ alleg ed err or, it is nece ssary to briefly discuss § 1983 municipality liability

. The question of whether a municipality is liable under § 1983 has two parts: “(1) whether

[t he] plaintiff’s harm wa s cause d by a constit utional violation, and (2) if so, whether the city is responsible for that violation.” Colli ns v. City of Harke r Heights, Tex. , 503 U.S. 115, 120 (1992) (citations omitted). Thus, under part one of the inquiry , a municipality cannot be held liable under § 1983 “base d on the actions of one of its office rs when i n fa ct

. . . the office r inflicted no constitutional harm.” City of Los Angeles v. Heller , 475 U.S. 796, 799 (1986); see also W ilson v. Morgan , 477 F.3d 326, 340 (6th Cir. 2005) (“I n fac t, beca

use the j u ry found no constitutional violation

. . . the county could not have been found liable.

. . for an alleg edly unconstitutional custom

or policy .”); Ewolski v. C i t y o f B runswick , 287 F.3d 492, 516 (6th Cir. 2002) (“Where , as here , a municipality ’s liability is a lleg ed on the basis of the unconstitutional a ctions of its e mploy ees, it is

nece ssary to show that the employ ees inflicted a constitutional harm.” ); Doe v. Sullivan County , 956 F.2d 545, 554 (6th Cir. 1992) (“ Heller simply rea ffirme d that a deter minative issue in § 1983 claims - 23 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al
ag ainst municipalities is whether the plaintiff has suffe red a depriva tion of his constitutional rig hts.”).
I f there is an underly

ing constitutional violation in satisfac tion of part one of the inquiry , the Supreme Court has articula ted the circ umstances under which a municipality may be held liable for that constitutional violation beg inning with Monell v. Dep’ t of Soc. Servs. of City of New Y ork , 436 U.S. 658 (1978). I n Monell , the Court reje cted a r es p o n dea t s u

p erior theory and held that a municipality

may only be held liable unde r § 1983 when an officia l policy or custom “‘ cause s’ an employ ee to violate another ’s constitutional rig h t s . ” Id

. at 691–92. Reg arding a municipality ’s failure to train employ ees, the Court later explained that “the inadequa cy of police trai n i n g may

serve as the basis for § 1983 [m unicipality ] liability only wher e the failure to train amounts to delibera te indiffer ence to the rig hts of persons with whom the police co m e i n t o contact.” City of Can t o n v. Harris , 489 U.S. 378, 388 (1989). “De liberate indiffer ence ,” the Court has repe atedly emphasiz ed , “i s a stringe nt standard of fault, requiring proof that a municipal actor disreg arde d a known or obvious conseque nce of his action.” Connick v. Thompson , 131 S. Ct. 1350, 1360 (2011) (citation and altera tion omitted). I n re q u i ri ng this stringe nt standard, the Court has reje cted the notion that a neg lige nt training prog ram can cre ate municipality liability , noting that fede ral courts should g ener al l y ref

rain from “sec ond-g uessing municipal employ ee- training prog rams.” Canton , 489 U.S. at 391–92. Wit h these prec epts in mind, we turn to the rele vant jury instructions that wer e issued by the district court in this case . First, reg arding the underly ing constituti onal vi olat i o n , the i nstructions require d the jury to consider whether May s, Scrug g s o r C rega n individually and separ ately used - 24 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al excessive forc e on L ee, pr ohibiting the jury from conside ring the collec tive actions of the office r: “I n this case , the Def

endant Police Offic ers did not act in unison, and y ou must consider separ ately the actions of eac h of them. Thus, y ou may find liability by none of them, or all of them, or any of them individually .” R. 590 J ury I nstr., at 19. Next, reg arding municipality liability under a failure

to train theory , the instructions provided: “Your verdic t will be for plaintiffs and ag ainst defe ndant [Nashville] only if y ou find that one or more of the Def endant Police Offic ers deprive d Mr. L ee of

a constitutional rig ht by use of excessive forc e . . . .” Id

. at 21. Thus, the instructions require d that the jury find that at least one of the De fenda nt Office rs (May s, Scrug g s or Creg an) use d excessive forc e ag ainst L ee, befor e the jury could consider whether Nashville should be held liable for a failure to train.
Be cause the jury found that May s, Scrug g s and Creg an did not use excessive forc e, the jury

was prohibited from considering the liability of Nashville. Our finding that the jury verdic t in favor of those office rs should stand leave s Plaintiffs sear ching for another source of an underly ing constitutional violation that would allow municipality liability to attach to Nashville. Plaintiffs have responde d by attacking the jury instructions, arg uing that the jury should have been permitted to find that the collective actions and inactions of the office rs resulted in the use of excessive forc e ag ainst
L ee, even if no individual office r used excessive force

. T h e gi s t of t his collective action/inaction theory is that eac h eff

ective taser application incapa citated L ee for approximately 5 seconds, during which the other office rs should have taken advanta g e of this “window of opportunity ” to subdue and handcuf f L ee. Plaintiffs arg ue that the office rs’ repe ated failure to take advanta g e of the window of opportunity resulted in f

urther unnece ssary taser applications. Thus, Plaintiffs c ontend, even if no

- 25 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al

one individual police office r used excessive forc e, their combined ac t i o n s and inactions—the
repe ated ap p l i ca tion of the taser, followed by the failure to take advanta g e of the window of opportunity

—resulted in the use of excessive forc e ag ainst L ee. Plaintiffs have cited to a few case s that support the proposition that the collective actions and inactions of g overnme nt employ ees may

cause a constit utional violation. See, e.g., Epps v. L auderdale County , 45 F. App’ x 332, 335 (6th Cir. 2002) (Cole, J ., concur ring ) (“Mor eover , it is possible that no one individual g overnme nt actor
may violate a victim’s constitutional ri gh t s , b u t that the ‘combined acts or omissions of sever al employ ees acting under a g overnme ntal policy or custom may violate an individual’s constitutional rig hts.’”) (quoting Garcia v. Salt Lake C ounty , 768 F.2d 303, 310 ( 10th Cir. 1985)); Speer v. City of W ynne , 276 F.3d 980, 986 ( 8th Cir. 2002). The problem with Plaintiffs’ alleg ed err or is that Plaintiffs did not advanc e this col l ective action/inaction theory at trial. The district court noted that “the first time [P laintiffs] offe r[ed] the notion that the ‘collec tive actions of office rs can be the cause of a constitutional injury and form the basis of a municipal claim, even though no individual office r’s actions rise to the level of excessive forc e,’” was in their reply to the Def endant’ s response to Plaintiffs’ motion for a new trial. Lee , 2009 WL 2462209, at *4. Our own revie w of the rec ord confirms the district court’s view. I ndeed, Plaintiffs’ proposed jury instructions lacke d an instruction reg arding a collective action/inaction theory of excessive forc e, R. 578, L ee J ury I nstr., at 3–6, and Plaintiffs’ proposed specia l-verdic t form only allowed the jury to co n s i d er whether May s, Scrug g s, or Creg an—sepa rate ly and individually

—used ex ce s s i v e fo rce on L ee, R. 579, L ee J ury Ver dict For m, at 1–3. L ikewise, Plaintiffs did not object t o t h e l ac k of a collective action/inaction instruction at the jury char g ing - 26 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al confe renc e, nor did Plaintiffs object to the fac t that the jury instructions expli citly prohibited the jury from considering the collective actions of the office rs. Thus, beca use Plaintiffs f

ailed to pr eser

ve 4
thi s claim of err or for appea l, our revie w “is discretionar y , and only for plain err or that aff ecte d [P laintiffs’] substantial rig hts.” Eid v. Saint-Gobain Abrasives, Inc. , 377 F. App’x 438, 442 (6th Cir. 2010) (c iting F ed. R. Civ. P. 51(d)(2)). Under the circ umstances of this case , we find that i t i s ap p ro priate to decline to revie w Plaintiffs’ alleg ed err or. “The purpose of Rule 51 is to g ive the district co u rt an opportunity to

corr ect err ors in the jury instructions and to lessen the burden on the appellate courts.” Rey nolds v. Gree n , 184 F.3d 589, 595 (6th Cir. 1999); s ee a l so Preferred RX, Inc. v. American Prescription Plan, Inc. , 46 F.3d 535, 547 (6th Cir. 1995) (“” [T] he basic purpose of Rule 51 [i s] to aler t the trial judge to potential problem are as so that the jury can be clea rly and corr ectly instructed.”)

. “This rule

was not intended to require pointless formalities, but rathe r was desig ned to preve nt u nn e c e s sary new trials ca u s ed b y err ors in jury instructions that the district court could have corr ecte d if timely

Plaintiffs did proper ly object to another matter, arg uing that the jury did not need to find an 4 underly ing constitutional violation by May s, Scrug g s, or Creg an befor e considering whether to hold Nashville liable under a failure -to-tra in theory

. See Lee , 2009 WL 2462209, at *3 & n.2. Howeve r, in compliance with Rule 51, we re quire a party to “distinctly state[] the issue objected to and the g round for that objection,” and “a party cannot state one g round for objection during trial and then state a differ ent g round for objection on . . . appe al.” Anchor v. O ’Toole , 94 F.3d 1014, 1020 (6th Cir. 1996) (citation and quotation marks omitted); see also Eid , 377 F. App’x at 441 (noting that this Circuit “g ener ally require s formal reque sts and objections” to jury instructions). Pla in ti f f s ’ o b je c tion did not include any statement that would rese mble a reque st or objecti o n reg arding a collective action/inaction instruction in compliance with Rule 51. See R.643, Tr ial Tr., at 2917–21. I n sum, Plaintiffs objection on this separate matter will not allow them to esca pe plain er

ror r eview. Fu rthermor e, we note that any sug g estion that the jury could have considered wh et h er Nashville was liable on a failure to train t h eo ry without first finding an underly ing constitutional violation is clearly

wrong . See Collins , 503 U.S. at 120. - 27 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al broug ht to its attention.” Rey nolds , 184 F.3d at 595. The jury instructions i s s u ed i n t his case
repr esente d a rathe r ordinary theory of municipality liability that was premised on the municipality ’s failure to train office rs who individually used excessive forc e on L ee. Our task on appellate revie w is to ensure that these instructions had a sound basis in the law as it perta ins to the theory advanc ed by Plaintiffs. See Pivnick , 552 F.3d at 488. Plaintiffs—rather than arg ue that the district court err ed with reg ard to the instructions on the theory that they advanc ed at trial—assig n err or and seek a new trial on the basis that they now wish to pursue an additional theory of § 1983 liability

. Alleg ing an

err or in jury instructions premised on a theory that was not prese nted to the district court is bey ond the basic purpose and scope of R ule 51 and we think that g ranting a new trial on that basis would be unwise.
Moreove r, even if we wer e to a ssume that Plaintiffs’ claim of err or has merit, it likely falls under the doctrine of “invited err or.” This doctrine “re fer s to the p ri n ci ple that a party may not complain on appe al of e rror s that he himself invited or provoked the court or the opposite par ty to commit.” Harvis v. Roadway Exp. Inc. , 923 F.2d 59, 60 (6th Cir. 1991) (citation omitted); see also Ford v. C ounty of Grand Traverse , 535 F.3d 483, 490–91 ( 6th Cir. 2008) (explaining the invit ederr or doctrine)

. I ndeed, we have applied this doctrine when a party reque sts one jury instruction and then l ater complai n s about that very instruction on appea l. Harvis , 923 F.2d at 61–62. Her e, any alleg ed err or was invited by Plaintiffs’ req u es t fo r j ury instructions that only allowed the jury to consider whether an individual office r used excessive forc e, and the fac t that Plaintiffs did not pursue

a collective action/inaction theory at trial. See Live ly v. Elk horn Coal Co. , 206 F.2d 396, 399 (6th Cir. 1953) (dec lining to re view a c laimed er ror whe re “[a] ppellant requested no instruction on the - 28 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al theory of the c ase w hich he now ur g es upon us, took no exception to the failure of the Tr ial J udg e to so instruct the jury , and did not obtain a ruling on such a the ory ”). Finally , we note that even if the district court committ ed err or here , the err or would be harmless and would not aff ect Plaintiffs substantial rig hts beca use we think that t h e evidence
prese nted by Plaintiffs at trial did not show that Nashville was delibera tely indiffer ent reg arding the training of off

icer s on taser use

. Plaintiffs arg ue that the fundamental fla w in Nashville’s tra ining
prog ram was that the office rs “had very littl e, if any , useful training on . . . how to take a suspect into custody during [t ]aser use.” L ee Br

. at 8. Be cause of this, Plaintiffs maintain, the assisting office rs failed to take advanta g e of the window of opportunity , which led to unnece ssary taser applications, and ultimately , L ee’ s death. Howeve r, the evidence prese nted at trial shows that Nashville was

awa re of this problem and took aff irmative steps to train their office rs ac co rding ly in the months immediately prec eding L ee’ s September 2005 death. First, the Training Bulletin that we discussed in Part I I .A.2. infra , was sent by the NMPD to all taser office rs, including May s and Scrug g s, in J une 2005. See R. 347-23, May s Email ‘Read Rece ipt’; R. 347-24, Scrug g s Email ‘Read Rece ipt’. L ater ,

on Aug ust 26, 2005, the NMPD sent a second email to taser opera tors that highlig hted these issues with even more specific ity

. R. 347-26, Email to Taser Oper ators. The email noted that “[i] t cannot be emphasized enoug h that during the window of opportunity , that office rs can g o hands on without fea r of being incapa citated by touching a suspect underg oing [t aser application].” Id

. at 2. Fur ther, the email specific ally i n s t ructe d taser opera tors to issue “ver bal commands during and afte r the [t aser ] application” to other office rs to ensure that they “subdue an d cu ff [ t h e targ et] without hesitation.” Id

. Plaintiffs’ arg ument is that these emails wer e inadequa te, and that the NMPD should - 29 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al have conducte d hands-on trainin g r e g a r d in g th e s e is s u e s th a

t in c luded non-taser opera tors. Howeve r, “a plaintiff seeking to establish municipal liability on the theory that [a training prog ram] has led an employ ee to violate a pl aintiff’s r ights must demonstrate tha t the municipal action wa s taken with ‘deliber ate indiffer ence ’ as to its known or obvious conseque nces . . . . A showing of simple or even heig htened neg lige nce will not suffice .” Bd. of Cnty. Com’rs of Bryan C nty., Okl. v. Brow n , 520 U.S. 397, 407 (1997) (citing Canton , 489 U.S. at 388–89). These emails show that Nashville did not disreg ard a known or obvious c onsequenc e of the problems associate d with office rs failing to take advanta g e of the window of opportunity

. I f it wer e true that Nashville should have done more, such

as conducting hands-on training , Plaintiffs’ alleg ations might support a finding that Nashville was neg lige nt. But our case s require more. The story might be differ ent if, for example, Plaintiffs had
prese nted evidenc e that Nashville was awa re that office rs wer e continuing to fail to take advanta g e of the window of opportunity after the Summer 2005 training emails wer e distributed. See Brown , 520 U.S. at 407–08 (noting that the continued adher ence to a training approa ch that the municipality knows has failed to preve nt tortious conduct be empl o y e e s ma y d e mo n s tr a

te d e li b e r a te in d if f e renc e). Upon our own revie w of the evidenc e prese nted at t ri al , we do not find any evidenc e that would
sug g est that Nashville was delibera tely indiffer ent. Thus, any alleg ed err or in the jury instructions would be harml es s b eca

use Plaintiffs would be unable to preva il on their § 1983 claim ag ainst Nashville. Plaintiffs had ample opportunity to seek a collective action/inaction j u ry instruction. Unfortuna tely , the only explanation for their failure to do so appea rs to be that Plaintiffs did not find

- 30 -No. 09-6083

Bud Lee, e t al v. Metro. Gov t. of Nashvill e, et al

or pursue this theory until afte r the trial conclude d. For all of these rea sons, we find that the jury instructions in thi s case wer e prope r. III. Conclusi on For all of these rea sons, we AF F IRM the order s and judgme nt of the district court, and we decline to g rant Plaintiffs a ne w trial.

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