California Verdicts

Plaintiff(s):

Hung Lam (Male, 35 Years)

Plaintiff Attorney(s):

John L. Burris;
Law Offices of John L. Burris;
Oakland,
CA,
for
Hung Lam ■ Benjamin Nisenbaum;
Law Offices of John L. Burris;
Oakland,
CA,
for
Hung Lam

Plaintiff Expert(s):

Alex Barchuk; M.D.; Physical Medicine; Kentfield,
CA called by:
John L. Burris, Benjamin Nisenbaum ■ John Ryan; J.D.; Police Practices & Procedures; Providence,
RI called by:
John L. Burris, Benjamin Nisenbaum ■ Carol Hyland; M.A.; Life Care Planning; Lafayette,
CA called by:
John L. Burris, Benjamin Nisenbaum ■ Gregg Stutchman; Audio/Video Evidence; Napa,
CA called by:
John L. Burris, Benjamin Nisenbaum ■ James Norris; M.S.; Forensic Analysis; Portola Valley,
CA called by:
John L. Burris, Benjamin Nisenbaum ■ Martin Fishman; M.D.; Ophthalmology; Los Gatos,
CA called by:
John L. Burris, Benjamin Nisenbaum ■ Robert Johnson; M.B.A.; Economics; Los Altos,
CA called by:
John L. Burris, Benjamin Nisenbaum ■ Richard Shaw; M.D.; Psychiatry; Palo Alto,
CA called by:
John L. Burris, Benjamin Nisenbaum ■ Winthrop Smith; Ph.D.; Mechanical; Livermore,
CA called by:
John L. Burris, Benjamin Nisenbaum

Defendant(s):

Dondi West, 

Larry Esquivel, 

City of San Jose

Defense Attorney(s):

Clifford S. Greenberg;
Office of the City Attorney;
San Jose,
CA,
for
Dondi West, Larry Esquivel, City of San Jose ■ Christian B. Nielsen;
Office of the City Attorney;
San Jose,
CA,
for
Dondi West, Larry Esquivel, City of San Jose

Defendant Expert(s):

Greg Meyer;
Police Practices & Procedures;
Glendale,
CA called by:
Clifford S. Greenberg, Christian B. Nielsen ■ Karl Volk;
Economics;
Walnut Creek,
CA called by:
Clifford S. Greenberg, Christian B. Nielsen ■ Karen Preston;
Physical Rehabilitation;
Sacramento,
CA called by:
Clifford S. Greenberg, Christian B. Nielsen ■ Andrew O’Brien;
Vocational Rehabilitation;
Sacramento,
CA called by:
Clifford S. Greenberg, Christian B. Nielsen ■ Kenton Wong;
Forensic Analysis;
Hayward,
CA called by:
Clifford S. Greenberg, Christian B. Nielsen ■ Maureen Miner;
Physical Medicine;
Gilroy,
CA called by:
Clifford S. Greenberg, Christian B. Nielsen

On Jan. 3, 2014, plaintiff Hung Lam, 35, a cook and a Vietnamese immigrant, was in the front yard of his residence on Cape Horn Drive, in San Jose, holding a kitchen knife. He was allegedly making suicidal gestures. Two days prior, Lam was voluntarily hospitalized on a "5150" hold and he had been diagnosed as psychotic. As a result, when a disturbance call was made to the police the next day about a man with a weapon in front of Lam’s home, San Jose Police Officer Dondi West responded to the report. When West arrived at the scene, she saw Lam holding a knife in one hand and a cellphone in the other. As result, West shouting at him to drop the knife and get on the ground. When Lam failed to comply, West shot him once in the back. Lam sued West; the chief of police, Larry Esquivel; and their employer, the city of San Jose. Lam alleged that West’s actions constituted negligence, battery, and excessive force in violation of his civil rights. He also alleged that Esquivel and the city were liable for West’s actions. Defense counsel moved for a bifurcated trial. The motion was uncontested and it was granted. Plaintiff’s counsel argued that prior to the shooting, Lam only posed a danger to himself and no one else at the scene. Counsel contended that when West arrived at the scene, Lam had the knife in one hand and a cellphone in the other, but that Lam was talking to a female neighbor. However, plaintiff’s counsel contended that West ran toward Lam while shouting at him to drop the knife and get on the ground and that West then continued to yell and scream at Lam to drop the knife while running toward him. Thus, counsel argued that West escalated the situation, instead of using the de-escalation tactics the 23-year San Jose Police Department officer had been trained to use, resulting in West shooting Lam. A retired San Mateo County deputy sheriff who lives next door to Lam testified that he witnessed the entire standoff and that Lam posed no serious threat to police that day. The retired deputy sheriff also testified that Lam did not move between the time the officer arrived and the time he was shot. Plaintiff’s counsel further argued that the shell casings ejected from West’s gun proved that she was in a safe position relative to Lam when she fired and that this was consistent with eyewitness testimony of two people, including the retired deputy sheriff. In addition, counsel argued that the location of the shell casings were dispositive of the location West claimed she was in and was dispositive of any claim that Lam attacked West. West disputed Lam’s version of events and claimed that Lam was under the influence of "Ecstasy" and was threatening to hurt himself with the knife he was holding. She also claimed that Lam refused to drop the knife and advanced on her in a threatening manner. She alleged that she backed away from Lam until she was in a bush, but that he continued to advance on her. West further alleged that another officer who arrived at the scene attempted to secure a "rubber bullet" weapon from his car, but that the officer did not have enough time to use the weapon, as Lam continued to advance on her. She claimed that as a result, she shot Lam.

Lam sustained a gunshot wound to his back. As a result, the bullet struck his aorta, lungs, kidney, and spine. He subsequently underwent a life-saving surgery at Regional Medical Center of San Jose to repair some of the damage. However, despite the surgery, Lam was rendered permanently paralyzed from the waist down. He was determined to be a T-11 paraplegic and he is now confined to a wheelchair for the rest of his life. Defense counsel recommended that the jury award Lam between $2 million and $4 million in non-economic damages and between $2 million and $3 million in economic damages.

The jury determined that Lam’s damages totaled $11.3 million. It found that West’s actions constituted excessive force and negligence, and it apportioned 65 percent of the fault to West on the state-law negligence claim only and 35 percent of the fault to Lam. However, the jury found for the defense on the battery claim. Since Lam prevailed on his other claims that did not involve comparative fault, including the § 1983 Fourth Amendment claim and the Civil Code § 52.1 Bane Act claim, his award was not diminished by comparative fault.

Hung Lam: $3,000,000 Personal Injury: non-economic damages; $8,300,000 Personal Injury: future economic damages

Judge:

Paul S. Grewal

Trial Length:

3
 weeks

Trial Deliberations:

4
 days

Jury Vote:

8-0 in both phases

Jury Composition:

7 Asian/ 1 Hispanic

Post Trial:

Defense counsel moved for new trial. The motion is pending.

This report is based on information that was provided by plaintiff’s and defense counsel.