Appeal in an action under 42 U.S.C. § 1983 from a judgment of the District Court for the Eastern District of New York and an order denying a new trial as to damages entered by Judge George C. Pratt upon a jury verdict of $1.00 damages after an earlier separate trial had resulted in a verdict finding that defendants, Nassau County policemen, were liable for using excessive force against appellant in violation of his constitutional rights. Reversed and remanded for a new trial of the damages issue.
Before Waterman, Mansfield, and Van Graafeiland, Circuit Judges.
In this action under 42 U.S.C. § 1983 for damages against several Nassau County police officers, Robert Wheatley appeals from an order of the District Court for the Eastern District of New York entered by Judge George C. Pratt after a bifurcated jury trial resulted in one verdict finding appellees liable for use of force in violation of his constitutional rights and a second verdict awarding him $1.00 damages. The order appealed from denied his motion for a new trial on damages, leaving in effect the court's December 27, 1979, judgment of $1.00 against the appellees for the force used.*fn1 We reverse with directions to grant appellant a new trial of the damages issue.
Wheatley's action is based on his having been arrested, detained in police custody and subjected to excessive physical force and abuse by the police. The jury, after a six-day trial of the issue of liability, found in Wheatley's favor, concluding that he had been subjected to an unconstitutional arrest and detention by defendant Ford and unconstitutional use of force by appellees Ford, Lafferty, Gorman, Zaleski, Tirelli, Richards and Wagner. The jury's finding of liability was supported by substantial evidence, which included not only Wheatley's own testimony that he was beaten by the appellees but that of a witness who heard the beating and his brother who was prohibited by the police from taking a photograph of Wheatley after the beating. Defendants took no appeal from the jury's finding of liability and do not challenge that verdict on this appeal.
The trial of the damages issue took one day, at the end of which the jury returned a verdict awarding Wheatley $800.00 for damages suffered as a proximate result of the unconstitutional arrest and detention and only $1.00 for damages suffered as a result of the beating. The district court had instructed the jury that it could award damages from the sum of $1.00 to such an amount as would compensate appellant for his injuries. Wheatley moved pursuant to Rule 59, F.R.Civ.P. for a new trial of damages, arguing that the jury's award was contrary to the weight of the evidence. On January 17, 1980, the district court denied the motion, concluding that the award fell within the jury's discretion and was not contrary to the weight of the evidence.
The evidence showed that at about 9:30 P.M. on August 3, 1977, Wheatley was arrested while hitchhiking on Jericho Turnpike, Nassau County. He was taken to the Third Precinct of the Nassau County Police Department. At about 5:00 A.M. the next morning he was taken to the Nassau County Medical Center for examination. He testified that in the interim he was beaten until he confessed to a burglary which the police suspected he had committed. He was denied the right to call his lawyer until he confessed and only tendered his confession after the physical punishment being inflicted upon him by the five or six interrogating police officers became too much to endure. Specifically, he testified that he was struck repeatedly about the head and neck with a "slapper" a leather case about eight inches long filled with sand or lead, that a police officer stomped down on his bare foot, and that another administered three cupped blows to his ear. It was the pain of this last treatment that led Wheatley to confess. He never signed a written confession. At 4:00 A.M., which was his first opportunity, he reported his beating to the desk officer who noted on a special form a bump on the side of Wheatley's forehead and a slight swelling on the right side of the neck.
The jury specifically found that Wheatley had been the victim of an unconstitutional use of force despite testimony from police officers that no force whatsoever had been used. As the jury knew, Wheatley is a heroin addict with a prior criminal record. He is also an epileptic.
A denial of a motion for a new trial based on the size of a jury's damage award is reviewable on appeal. Dagnello v. Long Island R.R., 289 F.2d 797 (2d Cir. 1961); 6A Moore's Federal Practice, Par. 5.08(6). But the deference paid by appellate courts to both the jury's factual finding and the district court's assessment is substantial. In Music Research, Inc. v. Vanguard Recording Soc'y, 547 F.2d 192, 195 (2d Cir. 1976), we said:
"Vanguard next argues that its Rule 59 motion should have been granted because there was insufficient evidence to support the damage award. The trial court has broad discretion in ruling on the sufficiency of the evidence and we will not set aside a verdict unless there had been an abuse of discretion." Dagnello v. Long Island R.R., 289 F.2d 797, 806 (2d Cir. 1961).
Accord, e.g., Porterfield v. Burlington Northern Inc., 534 F.2d 142, 146 (9th Cir. 1976) (same standard applied where the verdict was claimed to be inadequate rather than excessive). The determination of whether there has been an abuse of discretion necessarily involves an examination of the evidence supporting the jury's finding. As the Supreme Court has said, "We read Dagnello ... as requiring the Court of Appeals in applying this standard to make a detailed appraisal of the evidence bearing on damages." Grunenthal v. Long Island R.R., 393 U.S. 156, 159, 89 S. Ct. 331, 333, 21 L. Ed. 2d 309 (1968).
Reviewing the evidence on damages in this case and drawing all factual inferences in favor of the appellees as we must, we conclude that in light of the jury's verdict on liability the evidence mandates an award of more than nominal damages. It was error to charge the jury that an award of nominal damages was permissible and an abuse of discretion not to set it aside.
Wheatley points to three major sources of proof as to his damages his own testimony of the beating and its consequences, the testimony of the examining physician, Dr. Sharfin, and the testimony of a court appointed ear, nose and throat specialist, Dr. Gohil. The damages claimed by Wheatley as a result of the excessive use of force break down into roughly two categories: (1) the pain and suffering endured during the beating itself and the days immediately after it, and (2) the alleged injury to Wheatley's ear and permanent hearing problem he now suffers. The limited record before us indicates that the failure to award damages for the alleged ear injury could rationally be justified. Even accepting this analysis of the evidence, however, the same cannot be said for the rest of Wheatley's injury and suffering.
Wheatley claims that a police officer perforated his left ear drum with a cupped-hand blow to the side of the head. Although the perforation itself has now healed, the injury is said to have impaired his high frequency hearing in that ear which in turn causes him to suffer from tinnitus, a continuous ringing in the ears. In support of the ear damage claim Wheatley put forward his own testimony as to being struck over the ear, the testimony of Dr. Gohil that the most common cause of traumatic perforation of the ear drum is a slap on the ear, the testimony of Dr. Sharfin that examination of the appellant in the emergency room on the night in question revealed a perforated left ear drum, the hospital report documenting Dr. Sharfin's ...