A federal appeals court has ordered a new trial for the family of a man who sued Elk Grove police after he died in officers’ custody in November 2016, citing “false or highly misleading” testimony from a pathologist who performed an autopsy of the man.
The opinion from a three-judge panel of the 9th U.S. Circuit Court of Appeals came over a lawsuit filed by the family of Daniel Landeros, a 41-year-old tile layer and father of five who was the first person to die in Elk Grove police custody since the department’s founding in 2006.
Landeros died after fleeing a traffic collision and being subdued by officers who handcuffed him and held him face down.
His family sued and the case went to trial in the summer of 2022, with lawyers Dale Galipo and Stewart Katz arguing for an award of millions of dollars because they said police used unreasonable and excessive force that led to Landeros’ death.
The attorney for Elk Grove police, Bruce Praet, argued instead that Landeros had a toxic level of methamphetamine in his system, had a history of heart trouble and died of cardiac arrest.
Dr. Jason Tovar, a forensic pathologist who conducted the autopsy for the Sacramento County Coroner’s Office, testified that he believed cardiac arrest led to Landeros’ death, court records say.
After a seven-day trial before Senior U.S. District Judge William B. Shubb, a jury rejected claims that Elk Grove police were responsible for Landeros’ death.
But the appellate panel ordered the case remanded for a new trial after concluding that Tovar had not been forthcoming about his involvement with the defense prior to trial.
“In this case, false testimony prevented plaintiffs from fully and fairly presenting their case,” the panel wrote. “Dr. Jason Tovar, the forensic pathologist who performed the autopsy on Daniel Landeros, made several statements at trial about his purported independence from defendants.
“These statements were either false or highly misleading. Dr. Tovar testified that he ‘(a)bsolutely’ was ‘not affiliated with the defense … in this case’ and did not ‘have any affiliation with the Elk Grove Police Department.’
“He told the jury that he considered himself ‘independent and impartial,’ had ‘met’ defense counsel ‘for the first time out in the hallway (that) morning,’ and was testifying ‘by way of subpoena.’
“Yet nearly two years prior to trial, defense counsel signed an undisclosed fee agreement to pay Dr. Tovar $400 per hour for his time ‘in expert consultation and/or legal proceedings’ in the case. Defense counsel agreed to pay Dr. Tovar directly rather than reimburse his employer, the county of Sacramento.
“Dr. Tovar viewed the arrangement as ‘working privately … outside of (his) job scope at the … Coroner’s Office.’”
Tovar did not immediately respond to a request for comment sent Friday through the Coroner’s Office, and Praet did not return a phone call made to his Orange County office.
Katz said he was pleased with the panel’s opinion and expected the case to move forward to a new trial.
“It’s great news for the family,” Katz said. “Frankly, it’s almost a little reassuring. I’ve become pretty cynical, and it’s really gratifying that a court can do the right thing.”
The appellate panel found that Tovar spoke with the Elk Grove police attorney a “handful of times” and also had “some email communications” with him.
“Defense counsel told Dr. Tovar which materials to review and, because Dr. Tovar was ‘not using any coroner resources,’ provided him with the autopsy report and just two of the ‘numerous’ available bodycam and dashcam videos,” the panel wrote. “After trial, the city of Elk Grove issued a check to Dr. Tovar for $4,000 pursuant to the fee agreement.”
The panel wrote that Tovar’s “false and misleading testimony prejudiced plaintiffs’ case.”
“The cause of Landeros’ death was a critical issue in the case, and the evidence regarding causation was subject to interpretation,” the panel wrote, noting that the plaintiffs relied on testimony from Dr. Ronald O’Halloran, an expert who testified that “Landeros died of asphyxia brought on by the defendant officers compressing his chest with their body weight.”
“Other evidence — such as Landeros telling the officers, ‘I can’t breathe,’ and his turning blue — supported that theory,” the panel wrote.
The panel noted that a defense expert, Dr. Theodore Chan, testified that “Landeros died of a methamphetamine-induced cardiac arrest,” and that although “the autopsy report did not mention cardiac arrest, Dr. Tovar testified that he believed it to be the cause of death.”
“Whether the officers used excessive force thus turned on which experts the jury credited,” the panel found. “The defense relied heavily on its portrayal of Dr. Tovar as an independent and trustworthy public servant and of Dr. O’Halloran as a paid expert who would say anything for his clients.”
The panel noted that the attorney for Elk Grove police described Tovar to the jury as “the completely independent chief medical examiner, Dr. Tovar.”
“If the jury had known that Dr. Tovar was being paid as a private expert by defendants, it may have viewed his opinion more critically,” the panel concluded.