The Honorable Philip P. Simon, United States District



Judge for the Northern District of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2331

CHET CYRUS, et al.,

Plaintiffs-Appellants,

v.

TOWN OF MUKWONAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:07-cv-01035—Rudolph T. Randa, Judge.

ARGUED OCTOBER 26, 2009—DECIDED NOVEMBER 10, 2010

Before BAUER and SYKES, Circuit Judges, and SIMON,

District Judge.



SYKES, Circuit Judge. Nickolos Cyrus suffered from

bipolar disorder and schizophrenia and was known to

local police based on past psychotic—but noncrimi-
2 No. 09-2331

nal—episodes. Early one morning, after being reported

missing by his family and while in a delusional state,

he wandered into a partially built new home in

Mukwonago, Wisconsin, wearing nothing but a bathrobe. The property owner was present and called the

police. Town of Mukwonago Lieutenant Thomas

Czarnecki was the first to respond to the scene, and by

then Cyrus was standing outside the house. The officer

approached and asked him to come to the squad car to

talk. Instead, Cyrus turned and began walking back

toward the house.

Czarnecki fired his Taser at Cyrus to stop him from

reentering the house, and this set in motion a confluence

of events. Cyrus fell to the ground after being hit with

the Taser. He attempted to stand up but immediately

fell over. Czarnecki Tasered Cyrus a second time. Cyrus

went into a barrel roll and ended up lying face down on

the unfinished gravel driveway. A second police officer

arrived, and he and Czarnecki attempted to handcuff

Cyrus, but this was difficult because Cyrus’s hands

were tucked underneath his stomach and he did not

comply with the officers’ commands to produce them

for handcuffing. Czarnecki Tasered Cyrus several more

times—there is a dispute about how many—in an effort

to force compliance with the arrest. Once Cyrus was

handcuffed, the officers turned him onto his back and

found he was not breathing. He was pronounced dead

upon arrival at the hospital.

Cyrus’s parents sued Lieutenant Czarnecki, the Town

of Mukwonago, and other defendants under 42 U.S.C.
No. 09-2331 3

§ 1983 alleging that Cyrus’s death was caused by the

use of excessive force in violation of the Fourth Amendment. The district court granted the defendants’ motion

for summary judgment, holding that the amount of force

used to apprehend Cyrus was reasonable under the

circumstances. Cyrus’s parents appealed.

We reverse. There are material facts in dispute about

the extent to which Cyrus attempted to evade the

officers and the actual amount of force Czarnecki used

to bring about his arrest. The evidence conflicts, most

importantly, on how many times Cyrus was Tasered.

Czarnecki testified that he deployed his Taser five or

six times, and the autopsy report describes marks on

Cyrus’s back consistent with roughly six Taser shocks.

But the Taser’s internal computer registered twelve

trigger pulls, suggesting that more than six shocks may

have been used. On a Fourth Amendment excessive-force

claim, these are key factual disputes not susceptible

of resolution on summary judgment.

I. Background

This case is before us on summary judgment, so

we recount the version of the facts most favorable to

the nonmoving parties—Cyrus’s parents and his estate—

noting disputes where they exist.

A. The Events of July 8 and 9, 2006

Nickolos Cyrus suffered from bipolar disorder with

symptoms of schizophrenia, and he sometimes exhibited
4 No. 09-2331

delusional behaviors that required police intervention.

This was the case on July 8, 2006. Cyrus, who was then

29 years old and lived with his parents in Mukwonago,

left his home on that day, and a Rock County Deputy

Sheriff found him wandering along an interstate highway in a delusional state. He was taken to the Rock

County Mental Health Facility for evaluation and then

released to the custody of his mother, Brenda Cyrus.

Cyrus and his mother had a dispute later that evening,

and Cyrus removed all his clothes except a bathrobe

(and possibly boxer shorts) before leaving home a

second time. Brenda Cyrus contacted the Village of

Mukwonago Police Department, told the dispatcher

what happened, and said she wanted her son taken into

custody when the police found him.

At about 7:45 a.m. the next day, emergency dispatchers

received a call from Bradford Williams, a resident of the

Town of Mukwonago, who said that an unknown man was

trespassing on his property—a new home under construction in the Town—and the man was acting strangely.

Williams reported that the trespasser wore only a bathrobe

and that Williams had a verbal confrontation with him.

Lieutenant Thomas Czarnecki, the Town’s on-duty officer,

was dispatched to the Williams property. The dispatcher

informed Czarnecki that the property owner and the

suspect had a verbal exchange inside the home, and that

the suspect could be found walking back and forth between the home and a garbage dumpster outside. The

dispatcher also told Czarnecki that the suspect was

likely “that crazy boy.” Czarnecki understood this to be

a reference to Cyrus; he was familiar with Cyrus from
No. 09-2331 5

Czarnecki carried a TASER X26 ECD, a stun device that sends

1

an electric pulse through the victim’s body causing disorientation, weakness, and loss of balance. The device has two modes

of firing. The first mode fires two probes that are connected to

the Taser gun by a high-voltage, insulated wire. When the

probes make contact with the body, an electrical current

passes through the surface of the body. The Taser emits a

current as long as the trigger is pulled or for a maximum

duration of five seconds. The second method of deployment

is the “drive-stun” mode. In this mode the operator presses

the Taser to a subject’s body and then pulls the trigger to emit

(continued...)

prior delusional episodes, and also knew he had been

reported missing the night before.

Czarnecki arrived at the scene at approximately

7:50 a.m. and saw Williams standing in his driveway

and Cyrus standing near the house wearing just a bathrobe. The officer got out of his squad car, assumed an

“open stance” toward Cyrus, identified himself, and

asked Cyrus to come toward the street to talk. Cyrus

told Czarnecki that he lived on the property and that

his brother lived next door. Czarnecki told Cyrus that

he was on the wrong property. Cyrus responded by

saying that Czarnecki was on private property and

needed to leave.

After this brief dialogue, Cyrus turned and made his

way back toward the house; Czarnecki contends that

Cyrus ran, not walked, in the direction of the house.

Czarnecki then unholstered his Taser and fired it at

Cyrus, striking him in the back with both probes and

causing him to fall to the ground. Czarnecki knew that 1
6 No. 09-2331

(...continued) 1

a current. The deployment lasts as long as the trigger is

pulled or for a maximum duration of five seconds. The device

contains an internal computer chip that records the date and

time of every trigger pull. See generally Cyrus v. Town of

Mukwonago, No. 07-C-1035, 2009 WL 1110413, at *11 (E.D.

Wis. Apr. 24, 2009).

The Town of Mukwonago and the Village of Mukwonago 2

are separate municipalities and have a practice of providing

mutual emergency assistance.

There is some conflict in the evidence about the precise 3

chronology of these events. For instance, it is unclear whether

Nelson arrived before or after Cyrus attempted to stand up, and

whether Nelson arrived before or after the second Tasering.

Moreover, the accounts differ as to whether Cyrus barrel-rolled

before or after Czarnecki Tasered him for the second time.

backup was en route to the scene; he ordered

Cyrus—who was lying on his stomach on the unpaved

gravel driveway as a result of being hit with the Taser—

to remain on the ground and put his hands behind

his back. After Czarnecki issued this order, Officer Eric

Nelson of the Village of Mukwonago Police Department

arrived. Nelson got out of his squad car, and at this 2

point Cyrus attempted to stand up but wobbled on his

feet and fell back down to the ground. Though he

knew Cyrus was unarmed, Czarnecki hit him with the

Taser again; after this second shock, Cyrus barrel-rolled

four or five times down the driveway.3

When Cyrus stopped rolling, Czarnecki and Nelson

approached him and commanded that he show his hands

for handcuffing. Cyrus was lying on his stomach on the
No. 09-2331 7

driveway with his hands underneath him and did

not immediately comply, so the officers attempted to

forcibly remove his hands from underneath his body.

More specifically, Czarnecki grabbed Cyrus’s left forearm with one hand and kept his other hand on the Taser,

while Nelson placed his left knee on Cyrus’s right

shoulder blade to control Cyrus’s movement. This maneuver did not succeed in dislodging Cyrus’s hands

from underneath him; to force compliance, Czarnecki

deployed the Taser in drive-stun mode to Cyrus’s back

several times over the next minute or so. The evidence

conflicts about exactly how many times Czarnecki used

the Taser on Cyrus while he was face down in the driveway. Czarnecki testified at his deposition that he fired

it approximately six times in total—twice during the

initial encounter and four more times while Cyrus was

on the ground. The medical examiner who performed

the autopsy documented marks on Cyrus’s back consistent with six Taser shots. Yet the Taser’s internal readout of trigger pulls recorded a total of 12 trigger pulls

during the relevant timeframe.

The officers eventually succeeded in handcuffing Cyrus

and called for an ambulance on a nonemergency basis.

But when they rolled Cyrus onto his back, they realized

that he was not breathing. Czarnecki then radioed the

ambulance and instructed the paramedics to “step it up.”

Cyrus never regained consciousness and was formally

pronounced dead at the hospital later that day.
8 No. 09-2331

4

In addition to the Fourth Amendment excessive-force claim

against Czarnecki, the complaint also included a failure-tointervene claim against Officer Nelson under § 1983; policy-orpractice claims against the Town and Village of Mukwonago

under Monell v. Department of Social Services, 436 U.S. 658

(1978); supervisory-liability claims against the police chiefs in

both the Town and Village of Mukwonago under § 1983;

claims under Title II of the Americans with Disabilities Act, 42

U.S.C. §§ 12131 et seq., and section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794; and state-law claims for assault

and battery, intentional infliction of emotional distress, and

wrongful death. The district court granted summary judgment for the defendants on all claims, but the Estate has

limited its arguments on appeal to the Fourth Amendment

excessive-force claim.

B. District-Court Proceedings

Chet and Brenda Cyrus, Nickolos’s parents, commenced

this action on behalf of themselves and Cyrus’s estate

(collectively “the Estate”) against Lieutenant Czarnecki,

Officer Nelson, the Village of Mukwonago, the Town

of Mukwonago, and the police chief of each municipality.

The complaint included multiple federal- and state-law

claims, but the only one remaining on this appeal is a

Fourth Amendment excessive-force claim under § 1983.

4

The Estate identified two expert witnesses: Joseph

Waller, who was to testify on the reasonableness of

Czarnecki’s use of force during Cyrus’s arrest, specifically

relating to his use of the Taser; and Dr. Lynda Biedrzycki,

the Waukesha County Medical Examiner, who performed

the autopsy on Cyrus’s body and would testify about
No. 09-2331 9

the results of her examination and the cause of Cyrus’s

death. Dr. Biedrzycki had certified the cause of death

as “sudden death during struggle and restraint,” and

identified eight factors that she believed contributed to

Cyrus’s death: (1) the exertion and struggle with the

officers; (2) panic and fear; (3) Cyrus’s prone position;

(4) the pressure applied to Cyrus’s torso and possibly

neck; (5) Cyrus’s psychiatric condition; (6) Cyrus’s

restraint in handcuffs and the officers’ additional

attempts to restraint him with leg irons; (7) the pain and

panic caused by the Taser; and (8) the electrical shock

from the Taser. Dr. Biedrzycki testified at her deposition that while she believed all eight factors contributed

to Cyrus’s death, she could not determine whether any

one factor was more significant than the others.

Following discovery the defendants moved to exclude

the testimony of both experts pursuant to Federal Rule of

Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993). The district judge excluded the

majority of Waller’s testimony and Dr. Biedrzycki’s

testimony about the cause of death. The judge concluded

that because Dr. Biedrzycki could not “unbundle” the

factors contributing to Cyrus’s death—that is, she could

not isolate one factor as the primary cause of death—her

opinion testimony on cause of death was inadmissible.

The Estate does not challenge either of these evidentiary

rulings on appeal.

After excluding this testimony, the district judge

entered summary judgment for the defendants on all

claims. As is relevant to the sole claim on appeal—the
10 No. 09-2331

Fourth Amendment claim for excessive use of force—the

judge held that the material facts were undisputed, and

in light of all the circumstances, Czarnecki’s deployment of the Taser did not constitute excessive force as

a matter of law. This conclusion was based largely on

Czarnecki’s deposition testimony. The lieutenant testified

that he decided to use his Taser for several reasons: (1) he

knew there had been a verbal confrontation between

Williams and Cyrus; (2) he suspected Cyrus might have

placed a weapon in the dumpster; and (3) he wanted to

take Cyrus into custody while he was still outside the

house for safety reasons. The district judge accepted

this explanation and noted in addition that the force

inflicted by a Taser is classified as “intermediate” in

that it is generally nonlethal. Finally, the judge relied

on the fact that Cyrus had not obeyed the officers’ commands and refused to show his hands for handcuffing.

The court concluded that under these circumstances,

Czarnecki’s use of the Taser was objectively reasonable.

II. Discussion

We review the district court’s decision to grant summary judgment de novo. Suarez v. Town of Ogden Dunes,

581 F.3d 591, 595 (7th Cir. 2009). Summary judgment is

appropriate when the record evidence shows that “there

is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986).
No. 09-2331 11

Excessive-force claims in the context of an arrest are

reviewed under the Fourth Amendment’s objectivereasonableness standard. Graham v. Connor, 490 U.S. 386,

395 (1989); Abdullahi v. City of Madison, 423 F.3d 763,

768 (7th Cir. 2005). This inquiry requires an examination

of the “totality of the circumstances to determine

whether the intrusion on the citizen’s Fourth Amendment interests was justified by the countervailing government[al] interests at stake.” Jacobs v. City of Chicago,

215 F.3d 758, 773 (7th Cir. 2000). The nature and extent

of the force that may reasonably be used to effectuate

an arrest depends on the specific circumstances of the

arrest, including “the severity of the crime at issue,

whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.”

Graham, 490 U.S. at 396. If the suspect is mentally ill, the

officer’s awareness of his mental illness is also a factor

in the analysis. Abdullahi, 423 F.3d at 772. Because lawenforcement officers must make critical, split-second

decisions in difficult and potentially explosive situations, Graham, 490 U.S. at 397, we evaluate the reasonableness of the officer’s actions “from the perspective of

a reasonable officer on the scene, rather than with the

20/20 vision of hindsight,” id. at 396.

The district court’s summary-judgment decision was

premised on its view that the material facts were undisputed, making “the reasonableness of the [officer’s use

of] force . . . a legal issue.” The court relied on Bell v. Irwin,

321 F.3d 637 (7th Cir. 2003), for this proposition, and

indeed, Bell held that “when material facts (or enough
12 No. 09-2331

The district court did not exclude this portion of 5

Dr. Biedrzycki’s testimony.

of them to justify the conduct objectively) are undisputed,

then there would be nothing for a jury to do except secondguess the officers.” Id. at 640. In this situation, we said in

Bell, the reasonableness of the force used is a legal question. Id. But we also said that “[w]hen material facts are

in dispute, then the case must go to a jury, whether

the argument is that the police acted unreasonably

because they lacked probable cause, or that they acted

unreasonably because they responded overzealously

and with too little concern for safety.” Id. And we have

recognized that summary judgment is often inappropriate in excessive-force cases because the evidence

surrounding the officer’s use of force is often susceptible

of different interpretations. Catlin v. City of Wheaton, 574

F.3d 361, 367 (7th Cir. 2009). This principle is particularly

relevant where, as here, the one against whom force

was used has died, because the witness most likely to

contradict the officer’s testimony—the victim—cannot

testify. Gregory v. County of Maui, 523 F.3d 1103, 1107

(9th Cir. 2008).

Here, there is conflicting evidence about just how

much force Lieutenant Czarnecki used against Cyrus.

Czarnecki testified that he deployed the Taser five or

six times, and Dr. Biedrzycki noted that the marks on

Cyrus’s back were consistent with five or six Taser

shocks. The Taser’s internal computer, however, regis- 5

tered 12 trigger pulls during the relevant time period.
No. 09-2331 13

The Taser will emit only one discharge every five seconds, 6

even if the operator pulls the trigger more than once in a fivesecond period. But the internal computer registers each

trigger pull regardless of whether that pull emits a shock. For

example, if Czarnecki pulled the trigger two times consecutively, the Taser would emit only one shock but the

computer would register two trigger pulls.

Although a jury might conclude that the additional six

trigger pulls were not in fact “deployments” that emitted

an electrical charge into Cyrus’s body, the Taser’s 6

internal computer record creates enough of a factual

discrepancy on the degree of force used to preclude

summary judgment. This dispute is obviously material

because the amount of force used bears directly on

whether that force was a reasonable response to the

situation faced by the officer.

The evidence is also conflicting on the extent to which

Cyrus resisted arrest. See Graham, 490 U.S. at 396 (considering whether the defendant evaded arrest by flight).

To be sure, there is evidence that Cyrus did not obey

Czarnecki’s commands. But his behavior is susceptible

of different interpretations. The parties dispute whether

Cyrus ran or merely walked toward the house after

Czarnecki told him he was on the wrong property. And

although Czarnecki characterizes Cyrus’s barrel-roll

down the driveway as an attempt to flee, a jury might

see it differently. That is, the jury might reasonably conclude that the barrel-roll was an involuntary reaction

to the second Taser shock.
14 No. 09-2331

Possibilities include criminal trespass to dwelling in viola- 7

tion of WIS. STAT. § 943.14, or entry onto a construction site

or into a locked building, dwelling, or room in violation of

WIS. STAT. § 943.15(1). When Cyrus turned and moved away

from Czarnecki, he may have also violated WIS. STAT.

§ 946.41(1), which makes it illegal to knowingly resist or

obstruct an officer acting in an official capacity. All three

possible violations are class A misdemeanors punishable by a

maximum fine of $10,000, a maximum prison term of nine

months, or both. WIS. STAT. § 939.51(3)(a).

Summary judgment was also inappropriate because a

jury could conclude that Czarnecki’s use of force was

excessive in light of the other Graham factors. Cyrus had,

at most, committed a misdemeanor offense under Wisconsin law, and he was not exhibiting violent behavior, 7

see Casey v. City of Federal Heights, 509 F.3d 1278, 1281

(10th Cir. 2007) (noting that a lesser degree of force is

reasonable when the offense of arrest is not committed

violently). As importantly, there is no evidence suggesting that Cyrus violently resisted the officers’ attempts

to handcuff him. Although he refused to release his arms

for handcuffing (or perhaps he could not because of the

influence of the Taser shock), Czarnecki knew that Cyrus

was unarmed and there was little risk Cyrus could

access a weapon while face down at the foot of the driveway, with his hands underneath him and having

already been shocked twice with the Taser. Moreover,

Czarnecki was familiar with Cyrus and was aware of

his mental illness; he testified at his deposition that

Cyrus had never acted violently toward him.
No. 09-2331 15

Defense counsel suggested at oral argument that if

Lieutenant Czarnecki’s first use of the Taser was reasonable, all other uses were necessarily appropriate because

once an officer is justified in using a particular level of

force to effectuate an arrest, he can continue to use that

same level of force until the suspect is apprehended. Not

so. Force is reasonable only when exercised in proportion to the threat posed, see Oliver v. Fiorino, 586 F.3d

898, 907 (11th Cir. 2009) (“Quite simply, though the

initial use of force (a single Taser shock) may have been

justified, the repeated tasering . . . was grossly disproportionate to any threat posed and unreasonable under the

circumstances.”), and as the threat changes, so too

should the degree of force, see Santos v. Gates, 287 F.3d

846, 853 (9th Cir. 2002). Force also becomes increasingly

severe the more often it is used; striking a resisting

suspect once is not the same as striking him ten times.

It’s the totality of the circumstances, not the first

forcible act, that determines objective reasonableness.

Accordingly, a jury might reasonably conclude that the

circumstances of the encounter here reduced the need for

force as the situation progressed. When Czarnecki

first arrived at the scene, he was the only officer on site,

and his concern that Cyrus might retrieve a weapon

or pose a threat to persons inside the house was clearly

reasonable. On the other hand, once Cyrus was on the

ground, unarmed, and apparently unable to stand up on

his own, the risk calculus changed. Or so a jury might

reasonably conclude. Summary judgment was therefore

inappropriate.
16 No. 09-2331

We note again that the district judge excluded Dr. 8

Biedrzycki’s testimony on cause of death because she could

not “unbundle” several contributing causes, which included

Czarnecki’s use of the Taser. But we have held that an

expert’s inability to isolate one specific factor when multiple

factors cause an injury implicates the weight of the expert’s

testimony, not its admissibility. Jahn v. Equine Servs., PSC,

233 F.3d 382, 390 (6th Cir. 2000) (“The fact that several possible

causes might remain ‘uneliminated’ . . . only goes to the accuracy of the conclusion, not to the soundness of the methodology.” (quotation marks omitted)). Because evidentiary weight

is a jury question, expert testimony on the cause of an injury

is admissible even when it does not eliminate all other

possible causes of injury. Id. (“In order to be admissible on the

issue of causation, an expert’s testimony need not eliminate

all other possible causes of the injury.”); see also St. Paul Mercury

Ins. Co. v. Viking Corp., 539 F.3d 623, 628-29 (7th Cir. 2008).

Czarnecki argues as a fallback position that because

the Estate has not challenged the district court’s exclusion of much of Dr. Biedrzycki’s testimony, there is insufficient evidence to create a jury question about causation. See Berman v. Young, 291 F.3d 976, 982 (7th Cir. 2002).

We disagree, although it is certainly true that the district

court’s exclusion of key medical-examiner testimony—

an issue unaddressed and therefore abandoned on

appeal—makes the task of proving causation much

more difficult.8

Czarnecki maintains that asking a jury to infer causation

without expert testimony would be akin to proceeding

under a theory of res ipsa loquitur—improper in a § 1983

action—because the Estate would have to argue that the
No. 09-2331 17

force Czarnecki used must have been excessive because

people do not ordinarily die after being shocked with a

Taser. He relies on Estate of Phillips v. City of Milwaukee,

123 F.3d 586, 594-95 (7th Cir. 1997), and Brownell v. Figel,

950 F.2d 1285, 1292-93 (7th Cir. 1991), as support for

this argument, but this reliance is misplaced. We held

in Phillips and Brownell that a plaintiff cannot ask a jury

to infer that an officer used excessive force based solely

on the fact that an injury occurred. The plaintiff must

instead identify the specific conduct of the officer that

is alleged to be excessive and unreasonable; the fact of

an injury while in police custody is not enough. We

elaborated on this principle in Abdullahi, explaining that

Phillips and Brownell “stand for the proposition that . . .

a plaintiff must identify the specific unreasonable

conduct that caused his or her injuries.” 423 F.3d at 770-

71. Thus, a plaintiff claiming that an officer used excessive force cannot merely assert “that the facts support

an inference of ‘excessive force, the precise nature of

which has yet fully to come to light.’ ” Id. at 770 (quoting

Brownell, 950 F.2d at 1292).

The rule of Phillips and Brownell thus focuses on the

type of proof required to establish the first element of

an excessive-force claim—that is, that the officer in question used objectively unreasonable force under the circumstances. Here, the Estate has amply identified the

specific conduct it contends was excessive and unreasonable under the circumstances. Phillips and Brownell

are inapplicable.

Still, as we have noted, without expert testimony,

causation will be difficult to establish. But the record
18 No. 09-2331

contains enough evidence from which a reasonable

jury could conclude as a matter of lay judgment that

the excessive use of force—if indeed Czarnecki’s use of

force was excessive and unreasonable—caused Cyrus’s

death. Common-law rules of tort causation apply to

§ 1983 claims, see Herzog v. Vill. of Winnetka, 309 F.3d

1041, 1044 (7th Cir. 2002), and the general rule is that

expert testimony is not necessary to prove causation “if

all the primary facts can be accurately and intelligibly

described to the jury, and if they, as men of common

understanding, are as capable of comprehending the

primary facts and of drawing correct conclusions from

them as are witnesses possessed of special or peculiar

training, experience or observation.” Salem v. U.S. Lines

Co., 370 U.S. 31, 35 (1962) (quotation marks omitted); see

also Abdullahi, 423 F.3d at 771 (examining whether the

injury was consistent with excessive force).

The “primary facts” here include the close temporal

proximity between the allegedly excessive force and

Cyrus’s death: Cyrus stopped breathing just a minute or

two after being repeatedly shocked with the Taser, and

this tight chronology bears on causation. Other evidence

suggests that potential alternative causes of death may

be ruled out. For example, the toxicology report, which

the district court did not exclude, shows that Cyrus

ingested no stimulants or narcotics other than a

minimal amount of caffeine. There is no evidence that

Cyrus had any prior injuries that could have caused his

death during the confrontation with the officers, see

Brownell, 950 F.2d at 1293 (refusing to find liability

because plaintiff was also involved in a serious car
No. 09-2331 19

Though excluded, Dr. Biedrzycki’s testimony on causation 9

does suggest, however, that an individual with bipolar

disorder or schizophrenia could be more likely than an

average person to suffer cardiac arrest in this situation.

11-10-10

accident that could have caused his injury), or that he

suffered from a preexisting condition that could have

caused his cardiac arrest, Lash v. Hollis, 525 F.3d 636, 640

(8th Cir. 2008) (refusing to infer causation based on lay

evidence because, inter alia, the victim possibly suffered

from a preexisting medical condition). There is no

evidence of any possible intervening causes of death.9

In short, although the exclusion of a significant part of the

medical examiner’s testimony leaves the Estate with a

major gap in its case, the record is not so wholly devoid

of evidence on which a jury could find causation that

Czarnecki is entitled to judgment as a matter of law on

this alternative basis.

REVERSED and REMANDED