Case 2:09-cv-08671-RGK-FFM Document 71-1 Filed 02/04/11 Page 1 of 8 Page ID #:1369

Gary M Vilke, MD., FACEP, FAAEM
112 79 Breckenridge Way
San Diego, California 92131
(858) 653-5292

January 26, 2011
Martin Li
Arias & Lockwood
225 W. Hospitality Lane, Suite 314
San Bernardino, CA 92408
RE :

Terry Nash v City of San Bernardino, et al.

Dear Mr. Li:
As per your request, I have reviewed the following materials from the above referenced case:
Police Report Case Number 09-07219
Report from Assistant District Attorney Dem1is dated December 16, 2009
EMS run sheet from San Bernardino Fire Department
EMS run sheet from AMR
Emergency Department Record from St. Bernardine Medical Center
Medical Examiner Autopsy report and toxicology report
Autopsy photos
EMS Dispatch records
Police Dispatch records
Photographs taken by SBPD
CD of 911 dispatch
DVD interview of Officer Shaun Sandoval
DVD interview of witness David Fuga
DVD interview of Officer Brett Murphy
DVD interview of Officer Clint Walton
DVD interview of Officer Rone! Newton
DVD interview of Officer Lanier Rogers
DVD interview of Officer Erick Martin
DVD interview of Officer Robert Bellamy
DVD interview of Sergeant Dan Gomez
Decedent's academic records from Los Osos High School
Decedent's academic records from Rancho Cucamonga High School

Case 2:09-cv-08671-RGK-FFM Document 71-1 Filed 02/04/11 Page 2 of 8 Page ID #:1370
Deposition of Scott Walton
Deposition of Angel Nichols
Deposition of Shirley Allen
Deposition of Glen Holt, M.D.
Deposition of David Jasper
Deposition of Ken Koster
Deposition of Shuan Sandoval
Deposition of Daniel Gomez
Deposition of Erick Martin
Deposition ofRonel Newton
Declaration of Roger A. Clark
Declaration of Ronald L. 0 'Halloran, M.D.

After reviewing the materials, there are several issues that are clear given this available infonnation.
Terry Wayne Jackson (aka Ten-y Nash) was acting in a bizarre manner on March 1, 2009 in a park
and police were called to investigate. He was found to be sweating profusely acting in a paranoid
state and was thought to be under the influence of drugs. When officers arrived, Mr. Jackson
climbed into a lake. When he came out, he got into an altercation with the officers. He had a
TASER Electronic Control Device (ECD) used on him with little effect. Then a Lateral Vascular
Neck Restraint (L VNR) was attempted, but released. Then he was handcuffed in the front, leg irons
were placed and a loose hobble restraint was placed. He continued to struggle on the ground and
some officers pressed down with some body weight to keep him from moving. He later became
passive and then was noted to be in full cardiac arrest. He was treated by paramedics and
transported to the hospital, but ultimately died. Given this history, there are a number of issues that
need to be addressed in more detail. All opinions given are to a reasonable, or higher, degree of
medical or scientific certainty or probability based on the infommtion currently available.
In brief, my opinions are as follows with more description of each below:
I. Mr. Jackson did not suffer from positional asphyxia nor did the restraint have any
contributing component to his demise.
2. The weight force on the back did not cause or contribute to Mr. Jackson's death.
3. The use of the LVNR did not contribute to the death of Mr. Jackson.
4. The use of the TASER ECD did not contribute to the death of Mr. Jackson.
5. The cause of death was cardiac arrest secondary to methamphetamine associated excited
delirium. Untreated schizophrenia and cardiomegaly are also contributing factors.

Case 2:09-cv-08671-RGK-FFM Document 71-1 Filed 02/04/11 Page 3 of 8 Page ID #:1371

Case review in detail
Though there are variations of the reporting of the events that occmred that day depending on the
individual who is recalling, when the recall was captured, what their vantage point was and other
factors. Based on the reports and depositions in their totality, this is what I have determined to be
the most accurate history. Teny Wayne Jackson (aka Teny Nash) was acting in a bizarre mam1er on
March 1, 2009 in a park and police were called to investigate. He was found to be sweating
profusely acting in a paranoid state. He was delusional when noted to be repeatedly saying "the
dragons, the dragons, the dragons ... " When officers an-ived, Mr. Jackson climbed into a lake.
When he came out, he got into an altercation with the officers when they tried to help him. He had
a TASER Electronic Control Device (ECD) used on him with little effect. The TASER ECD was
fired at close range into his back but probe spread was not wide enough to cause complete
neuromuscular incapacitation. Then a Lateral Vascular Neck Restraint (L VNR) was attempted by
Officer Newton, but was released before Mr. Jackson lost consciousness.
Mr. Jackson was then cuffed in the front using two sets of handcuffs due to his size. Several
dish·action strikes were given by Officer Rogers to attempt to enable him to be cuffed. He
continued to kick his legs, head butt and swing his anns. Leg irons were placed and a loose hobble
restraint was then placed. Mr. Jackson was reported by officers and witnesses as trying to bite the
officers several times as well. After being fully resh·ained, he fought being placed into the back of a
police car. Given his size and the amount of struggling, the decision was made to transport him by
ambulance.
He was maintained in a prone position on the ground. He continued to struggle on the ground and
some officers pressed down with some body weight to keep him from moving. Officer Walton
reported placing a knee onto the subject's left lower hip. Officer Martin reported using both hands
and 20-30% of his right knee weight on Mr. Jackson's left mid back. Officer Murphy reported using
approximately 50% of his body weight by leaning with his left shin to hold Mr. Jackson's right
foreann pilliled to the groU11d. Officer Sandoval placed his lmee in Mr. Jackson's upper back and
removed it when he noted that level ofresistance had declined. As Mr. Jackson began to struggle
less, the officers reported only using hands to maintain conh·ol of his position.
He later became passive but was noted to still be breathing and pulses were present. Officers later
noted he loss of pulses and cessation of breathing at approximately the time the ambulance arrived
at scene. And when the medical aid arrived and evaluated Mr. Jackson, he was confinned to be in
full cardiac arrest and resuscitation was initiated. He was found to be in an asystolic (flat line)
rhythm when initially evaluated and treated by paramedics. He was aggressively treated and
transported to the hospital, but was unable to be resuscitated and ultimately died.
Use of the passive restraint: There are no studies, clinical findings in this case or previous case
repmts that suppo1t that any variation of resh·aining a handcuffed individual with hands in front,
shackling his legs and hobbling will impede one's ability to ventilate and cause positional asphyxia.

Case 2:09-cv-08671-RGK-FFM Document 71-1 Filed 02/04/11 Page 4 of 8 Page ID #:1372
Leaving a subject on bis stomach in the prone position is considered physiologically neutral. The
patient was breathing and was moving side to side, lifting up and was not having the ventilatory
movement of his lungs impeded. This patient did not suffer from positional asphyxia nor did the
restraint have any contributing component to Mr. Jackson's demise.
Additionally, besides the restraint not causing positional asphyxia or other significant ventilator
impact, the restraints actually limits the physical activity of the subject, decreasing muscle
contractions of the large muscle groups in the anns and legs and thus, the ability of the body to
consume oxygen. The hobble restraint limits the overall oxygen consumption of the subject, which,
in a state of extreme excitation, can be considered essentially protective by reducing additional
production of lactic acid from continued muscle contractions and oxygen consumption. This
limitation of lactic acid is important in subjects who already have an extreme metabolic acidosis
from extreme agitation and drug use, like Mr. Jackson.
Weight force on the back during restraint: During the period that Mr. Jackson was being
handcuffed, he was restrained in a prone position with a certain amount of weight force was being
placed on his back maintain him in a safe position mid keep him from rolling into the lake or hurting
himself. Mr. Jackson was making noises, breathing and struggling and without any evidence of
respiratory or ventilatory difficulty during this time period. He was reported to be moving and
resisting during this period and was not noted to complain of shortness of breath or difficulty
breathing.
The amount of weight used was descried above. Officer Walton reported placing a knee onto the
subject's left lower hip. Officer Martin reported using both hands and 20-30% of his right Jenee
weight on Mr. Jackson's left mid back. Officer Murphy reported using approximately 50% of his
body weight by leaning with his left shin to hold Mr. Jackson's right foreann pi1111ed to the ground.
Officer Sandoval placed his knee in Mr. Jackson's upper back and removed it when he noted that
level ofresistance had declined. As Mr. Jackson began to struggle less, the officers reported only
using hands to maintain control of his position.
Given that Mr. Jackson was clearly alive and fighting during the period ofrestraint and weight
force, and that the cardiac arrest was sudden, as well as there were no findings or changes consistent
with asphyxiation on autopsy, the weight force on the back did not cause Mr. Jackson's death. The
majo1ity of the weight force was not even on Mr. Jackson in such a position that would have created
the potential to limit ventilation. The weight on the hip and arm by Officers Walton and Murphy
would have no impact on ventilation. The weight placed by Officer Maiiin on the left mid back
would not significantly limit ventilations enough to cause asphyxiation. And even added to the knee
placed to the upper back by Officer Sandoval would not cause asphyxiation. Research using up to
220 lbs. of weight on a subject's back has not shown to cause physiologic changes that would imply
asphyxiation is even possible with that amount of weight.

Lateral Vascular Neck Restraint (LVNR)

Case 2:09-cv-08671-RGK-FFM Document 71-1 Filed 02/04/11 Page 5 of 8 Page ID #:1373

The pathophysiology, and thus the safety, of the Lateral Vascular Neck Restraint (LVNR) is
relatively straightforward and well delineated in many texts. The purpose is to place the arm around
the neck of the subject to be controlled. The crook of the elbow is placed at the anterior (front)
region of the neck and the foreann and upper ann come around the sides and are used to place
pressure on the lateral aspects of the neck where the carotid arteries are located. Pressure placed on
the arteries diminishes blood flow to the brain, quickly rendering the subject unconscious.
The elbow being at the location of the anterior portion of the neck prevents pressure being placed on
the airway itself. It is just a fulcrum, not a pressure point. Thus the tenn "choking out" of a person
really is not accurate as there is no choking involved. That term was originally coined when in the
past when a tme chokehold was being utilized: where the forearm crossed the anterior neck in a
"bar-like" hold and there was truly choking and airway obstrnction involved. This does not occur in
a properly placed LVNR. And when the restraint is immediately released after rendering the
subject unconscious, the procedure is safe without significant short or long-tenn effects.
The histo1y and autopsy do not reflect that an inappropriate placement of the neck hold occurred.
Officer Newton attempted the hold with success starting so that he opted to release a little pressure
from Mr. Jackson who immediately moved his neck and started resisting again. The hold was not
re-attempted at tlmt time. Mr. Jackson did not lose consciousness during the hold, and thus the hold
really could not have been placed long enough to cause brain injury or other neurologic injuries.
And Mr. Jackson was able to fight and struggle well after the LVNR was placed. Additionally, tl1e
findings in the autopsy report support that the hold was appropriately placed with an appropriate use
of pressure, as the hyoid bone was intact as were the laryngeal caiiilages. There was minor soft
tissue injury to some of the neck muscles, but not out of the ordinary for the pressure hold to the
neck. The use of tl1e LVNR did not contribute to the death of Mr. Jackson.

TASER Electronic Control Devices (ECDs)
There is a great deal of unwarranted concern of electrocution based on lay misunderstanding of the
reported 50,000 volts (V) peak open arcing voltage used by TASER handheld ECDs. TASER
handheld ECDs deliver only a fraction of the 50,000 V to the body. In the case of the TASER X26
ECD, the mean delivered pulse voltage is 580 V.
However, it is not the voltage, but the sustained current or amperage, or delivered electrical charge,
that actually creates a risk for electrical injmy. For example, tl1e static electricity from walking
across a carpet can generate 30,000 to 100,000 V. However, the average and actual delivered
electrical current of the TASER X26 ECD is only about 1.9 milliamperes (mA) (or, 0.0019 amperes
(A)) and the peak current is only about 3 A. By way of comparison, a TASER M26™ ECD has a
peak cmTent of about 17 A while a Christmas tree light string will have on average current of 0.4 A
or 400 mA, which is about 200 times the average (or actual) delivered current of the TASER X26
ECD.
The stored energy in the TASER X26 ECD is about 0.36 joules (J) per pulse (J/pulse), and the

Case 2:09-cv-08671-RGK-FFM Document 71-1 Filed 02/04/11 Page 6 of 8 Page ID #:1374
delivered energy is about 0.1 J/pulse, with the comparison of an automatic external cardiac
defibrillator (AED) used by many times per day by paramedics using 360 J, over 3000 times greater
than the X26 ECD.
Or, if one thinks about it, this limited amount of delivered electrical energy able to be transferred to
a person makes sense as the TASER X26 ECD is only powered by a battery of two 3 V cells
(Duracell CR123s), commonly used in some small digital cameras, not an electrical outlet or power
generator. It is the TASER ECDs rapid cycling that can cause the subjects' muscles to contract at
about 19 times a second that can offer the effective incapacitation of the subject in probe mode, or
painful compliance in drive-stun mode, while still offering a significant safety margin from
electrical injury.
Once the energy from an ECD is turned off, the subject is back to his physical baseline. Mr. Jackson
had the TASER ECD delivered in probe mode with the darts penetrating his back. The distance
from which the device was fired was reported by Officer Bellamy to be 4-5 feet. The spread of the
darts was approximately 10 cm (3.9 inches) as noted by the medical examiner. The spread is too
narrow to offer effective neuromuscular incapacitation by the TASER ECD. This minimal response
was what was reported by the officers stating that the TASER ECD did not affect him much and he
did not fall to the ground. Mr. Jackson was reported by bystanders and the officers to have signs of
being ve1y much alive after the initial TASER ECD activations and was reported to still be
struggling with officers for quite a while after the activation. The use of the TASER ECD did not
even affect him clinically, let alone contribute to the death of Mr. Jackson.
Excited Delirium

So after reviewing what was non-contributory to the death of Mr. Jackson, it is also critical to
identify why this young male suddenly died. During the time of his arrest, Mr. Jackson was
exhibiting signs consistent with excited deli1ium. In his case, the excited delirium, also known as
agitated delirium, was cansed by his methamphetamine use as well as his nntreated schizophrenia.
Excited delirium is a syndrome most commonly caused by use of stimulant chugs like cocaine,
methamphetamine or PCP and presents typically with aggressive and often paranoid behavior, but
can also be caused by uncontrolled behavioral or psychiatric illnesses. Classically, people suffering
from excited delirium are delusional, are hyperactive, sweating, hype1ihennic (high body
temperature), may take off their clothes and become under-clothed for their environment, may be
violent, described as having superhuman strength and are often breathing fast.
Mr. Jackson was exhibiting classic signs of excited delirium. He was delirious, commenting on
dragons. He was reported as sweating profusely, even before the altercation. He was described as
having superhuman strength, lifting up officers when they were trying to hold him down. He was
under-clothed, wearing only boxer shorts in the park. He was violent and not following police
commands, including throwing punches at them. And finally, he was severely hyperthennic, with a
core rectal temperature noted to be 104.3 ate 17:05 that day, over 30 minutes after he was
pronounced dead.

Case 2:09-cv-08671-RGK-FFM Document 71-1 Filed 02/04/11 Page 7 of 8 Page ID #:1375

Excited delirium places the individual at increased risk for sudden death syndrome, felt by most ,
experts to be caused by an inegular heartbeat, caused by the increased stress and work on the heart
by the excited, over-stimulated, agitated physical state, Once the heart goes into an irregular beat,
blood flow through the body ceases and shortly thereafter, the subject will lose consciousness due to
lack of blood flow to the brain and then stop breathing, Often, law enforcement officers will notice
that the subject has finally quieted down, no longer yelling and struggling, thinking that he has
finally calmed down and given up the fight Then a short time later is when someone will identify
that the subject is suddenly in cardiac an·est In this case the change in status was promptly noted
by the officers involved and appropriately addressed by the aniving paramedic personnel. His
initial cardiac rhythm was asystole which is also consistent with sudden death due to excited
delirium.
The other component to patients who go into cardiac arrest from excited delirium is that they are
almost universally unable to be successfully resuscitated. In this case, based on the dispatch
records, Mr. Jackson was trying to jump into the water at 13: 19, and he was in custody at 13:20.
The officers brought a car around and hied to load him, but were unable due to his agitated state.
Less than 9 minutes after having him in custody, they requested an ambulance and the ambulance
arrived less than seven minutes later. Even if the ambulance was called in advance and staged
waiting for Mr. Jackson to be secured in custody, they would have only been there minutes earlier
and this would not have made a difference in his outcome. His system had lost the ability to autoregulate and this cascade was not going to be altered. Even patients presenting to a comprehensive
emergency department in the state that Mr. Jackson was will typically succumb to the excited
delirium despite a full experienced medical team's best efforts.

Cardiomegaly

Mr. Jackson had hypertrophy and dilation of heart noted on his autopsy. This physical enlargement
of the heaii in and of itself can place an individual at increased risk for sudden cardiac an-est and
death. Given the excited state and agitation of Mr. Jackson, along with his enlarged heaii, he was at
risk to go into cardiac a1Test whether or not police were involved.
Cause of Death

Therefore, I essentially agree with the Medical Examiner's report of the cause of death in this case.
The background presentation and autopsy findings suppoti that Mr. Jackson died from excited
delirium syndrome due to his methamphetamine use, Though it is accurate that he was in the
presence of law enforcement restraint, this was non-contributory to the death.
Qualifications

My background is tlmt I am a full Professor with the University of California, San Diego School of

Case 2:09-cv-08671-RGK-FFM Document 71-1 Filed 02/04/11 Page 8 of 8 Page ID #:1376
Medicine and a full time faculty member in the Department of Emergency Medicine at the
University of California, San Diego Medical Center. 1 am residency trained and board certified in'
emergency medicine, I work full time as a practicing clinician in the Emergency Department of a
busy urban hospitaL I also have worked as the medical center as the Director of Custody Services
for the San Diego County Sheriffs Departtnent Jail Medical Service since 1999 where I oversee
direct patient care, interface between the jail clinical staff and the hospital staff, and have been
involved in the process of utilization review, I have also served as the UCSD Medical Center's
Chair of the Medical Risk Management Committee as well as the Chair of the Patient Care and Peer
Review Committee, both of which are charged with the task ofreviewing medical records and
making determinations of standard of care,
As a physician working at both the jail and in the emergency department that is contracted to care
for incarcerated patients, I have evaluated thousands of patients over the last ten years who have
been restrained, received a TASER device activation, and/or have had sudden cardiac arrests. I
have performed and published extensive research on subjects who have been restrained and human
research on the TASER device. This includes having restrained subjects hundreds of times utilizing
police restraining techniques and being involved with over 200 TASER device activations. I have
even been the recipient of multiple TASER activations personally, Given the frequency of use of
this procedure by law enforcement and my own research interests, I regularly perform a complete
review of the literature regarding restraint use, T ASER devices and sudden death in custody,
Appendix A is list of all publications authored by me over the previous ten years. Appendix B is a
list of all cases in which I have testified as an expert in trial or deposition within the preceding four
years. 1 have not referred to any other specific sources beyond my own research. 1 have previously
sent you my current Curriculum Vitae and rate sheet. The knowledge base that I utilize has been
developed over time from my years of clinical practice, reading and research, including specifically
those articles that I have published myself in Appendix A.
Respectfully submitted,

Gary M, Vilke, M,D,, FACEP, FAAEM
Professor of Clinical Medicine
Director, UCSD Custody Services
Director, Clinical Research for Emergency Medicine
University of California, San Diego Medical Center