First, it is clear that Chief Rotundo was presented with clear evidence of a violation of Hogan's rights when informed of the injuries he received. His allowance of a superficial investigation demonstrated a failure to remedy an obvious wrong. At best, he was grossly negligent in this instance. At worst, he deliberately allowed the policy of indifference to exist and continue. Chief Rotundo's uncritical acceptance of the investigation's conclusions with all of its deficiencies showed his concern not with righting a wrong, but rather with protecting the aggressor.
Therefore, the evidence clearly supports the jury's determination that Rotundo created a policy of fostering violations or allowed such policy to exist. As reviewed in the discussion of municipal liability, the investigation, the training of police staff, the indexing and filing of complaints, the open and obvious tolerance of violative conduct, the countenancing and advancing of nonaccountability by officers all point to his establishment or support of a policy fostering constitutional violations.
B. Rule 59(b) - New Trial.
On a motion for a new trial, "the trial judge is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner." Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978). However, the mere fact that the trial judge may not agree with the jury's verdict is no reason alone to grant a new trial. Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983). Grant of a new trial is warranted only where the court "'is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Sorlucco v. New York City Police Dep't, 971 F.2d 864, 875 (2d Cir. 1992) (quoting Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir. 1988)); Slade, 810 F. Supp. at 399.
Upon an independent review of the conflicting versions of the events, the jury's verdict on the liability issues was supported by a fair interpretation of the evidence. Therefore, a new trial on liability shall be denied.
However, the defendants further contend that they are entitled to a new trial or a remittitur on compensatory damages because the award by the jury was excessive. As noted above, plaintiff has been awarded $ 200,000 for permanent physical injuries, denial of medical treatment, and pain and suffering.
The award in this case reflects the jury's acceptance of plaintiff's evidence that he suffered several forms of damage. The application of handcuffs in too severe a manner caused immediate swelling and extended nerve damage, a permanent loss of sensation in one hand, and required treatment through immobilization of his wrist, and pain medication. He suffered a possible permanent back injury, diagnosed as a chronic lumbar strain, which caused severe pain and loss of sleep. It required treatment by regular wearing of a molded back brace, physical therapy, pain medication and anti-inflammatory medication through injections and oral medication. He experienced pain and suffering from repeated police baton blows resulting in abdominal pain, vomiting and nausea, severe bruising to the upper and middle chest, extensive bruising around his left elbow and on the inner aspect of his upper left arm, along with bruising on his right shoulder. He received abrasions on his right knee, lacerations on his lower leg and the injury to his back from being tossed about the interior of the police van, and he was denied medical assistance potentially exacerbating any and all of these injuries. Beyond the physical manifestations, mental distress and emotional suffering contributed to plaintiff's injuries in the form of fear of the police and the uncalled for pain and inhumane treatment inflicted by them; fear of being arrested and put in a similar situation, unable to defend himself and left injured curled up in a ball on the floor of a cell crying without needed medical aid; an inability to sleep; nightmares; flashbacks; and cold sweats, all caused by the events in July 1992.
The well settled standard for setting aside or reducing a jury award via remittitur is "whether the award is so high as to shock the judicial conscience and constitute a denial of justice." Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990); O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988); Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978).
A judgment must be set aside or reduced "where the damages awarded are so excessive as to shock the judicial conscience." Raucci v. Town of Rotterdam, 902 F.2d 1050, 1058 (2d Cir. 1990) (citations omitted). "To determine whether an award of damages is shockingly excessive when the law of a particular state is applied, we must examine and compare the challenged award with awards made in similar cases in the courts of that state." Id. A court should look at that state's awards because "jury verdicts and judicial opinions approving or disapproving them, when considered over a period of time, provide 'some indication of the consensus of opinion of jurors and courts as to the proper relation between the character of the injury and the amount of compensation to be awarded.'" Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir. 1984) (quoting Senko v. Fonda, 53 A.D.2d 638, 639, 384 N.Y.S.2d 849, 851-52 (2d Dep't 1976)). These cases are used as "a point of reference by which to gauge the appropriateness of the award." Matthews v. CTI Container Int'l, Inc., 871 F.2d 270, 278 (2d Cir. 1989); Raucci, 902 F.2d at 1058; Fuentes v. Consolidated Rail Corp., 789 F. Supp. 638, 645 (S.D.N.Y.), aff'd, 978 F.2d 706 (2d Cir. 1992). Numerous cases have been reviewed, and the following illustrates some comparable awards since no one case can ever be completely on "all fours" when dealing with damages.
Breaking the award into its component parts for comparison, it falls well within the range of reasonableness of comparable cases. First considering mental distress and emotional suffering: Speller v. New York City Transit Auth., No. 204366/86, 1988 WL 367151, (N.Y. Civ. Ct., Trial Date Feb. 1988)(LRP JURY), involved a suit for false arrest and imprisonment, and excessive force. Id., at *1. Plaintiff was arrested for trespassing and disorderly conduct after she apparently refused to leave an area when police politely asked her to do so. Id. She was arrested, beaten with a baton and imprisoned. Id. She suffered emotional distress and depression along with post-concussion syndrome with residual traumatic headaches. Id. She received $ 1,250,000 in compensatory damages. Id.
The plaintiff in Peponakis v. City of New York, No. 15015/87, 1992 WL 677670 (N.Y. Sup. Ct., Trial Date Sept. 1992)(LRP JURY), received a jury award of $ 50,529 for emotional distress for being falsely arrested and held in an unsanitary jail for one night without food or water. Id., at *1. He was not beaten or denied medical treatment, harassed, or assaulted in the manner Hogan suffered. Id.
In Zarcone, where a judge, after drinking very bad coffee, had the plaintiff coffee vendor handcuffed and brought before him to be berated and threatened with the loss of his livelihood, the plaintiff received a compensatory award of $ 80,000, and $ 60,000 in punitive damages. Zarcone, 572 F.2d at 53. The award was affirmed on appeal. Id. at 57. Here, plaintiff's distress went beyond simple embarrassment, to fear of mortal injury.
The plaintiff in the case of Boone v. State of New York, No. 74203, 1992 WL 408677 (N.Y. Ct. Cl., Trial Date Mar. 1992)(LRP JURY), was awarded $ 45,000 for damages of emotional distress when he was falsely accused and arrested for a crime he did not commit, and falsely imprisoned by the defendant. Id., at *1.
In the case of Bromner v. City of New York, 1987 WL 231350 (N.Y. Sup. Ct., Trial Date Apr. 1987)(LRP JURY), the plaintiff, a New York cab driver, suffered psychological injuries, along with hematomas, an injury to his esophagus, and lacerations on his wrists when he was arrested, assaulted, and beaten by the defendant police officer, and held in custody for forty-eight hours. He had called for the police after grabbing a woman passenger by the wrist who was attempting to flee without paying his fare. Id., at *1. The police arrested him instead. Id. The jury awarded him $ 100,000 in compensatory damages. Id. Hogan, like this plaintiff, was beaten and held in prison overnight. Hogan likewise suffered emotional harm and permanent wrist and back injuries, as well as injuries as a result of baton blows.
In a case from the Southern District of New York, an altercation with police resulted in injuries similar to those suffered by Hogan. Posr v. City of New York, No. 87-CV-6575, 1989 WL 395968 (S.D.N.Y. Dec. 21, 1989); see also Posr v. Doherty, 751 F. Supp. 1082 (S.D.N.Y. 1990) (order vacating jury award in part), rev'd and remanded, 944 F.2d 91 (2d. Cir. 1991). The plaintiff, claiming assault, false arrest and imprisonment, intentional infliction of emotional distress, and malicious prosecution, as well as relief under § 1983, stemming from an arrest for participating in a protest march for the homeless, was awarded $ 50,000 in compensatory and punitive damages. Doherty, 751 F. Supp. at 1084. A shoving match allegedly ensued between the protestors and police. Posr was grabbed, struck with a night stick, hand-cuffed and arrested. Id. Hogan experienced similar treatment, having been thrown against a fence, battered about the interior of the police van, and physically beaten with batons.
A motion under Fed. R. Civ. P. 50(b) was granted in part, setting aside $ 20,000 of the verdict as inconsistent. Id. at 1085-86. On appeal of that decision, the Second Circuit reversed, ordering a new trial on the false arrest and malicious prosecution claims only, due to error in the jury charge. Doherty, 944 F.2d 91 at 99-100.
Thus the remaining $ 30,000 verdict stood for the excessive force claim. Id. The parties settled for $ 75,000 rather than retry the two remaining issues. See Posr v. City of New York, 835 F. Supp. 120, 122 (S.D.N.Y. 1993), aff'd, 22 F.3d 1091 (2d Cir. 1994).
Next considering the beating plaintiff suffered and the denial of medical assistance, Rodick v. City of Schenectady, 1 F.3d 1341 (2d Cir. 1993), holds some similarities to the facts of this case. In Rodick, police responded to a call, found plaintiff in bed, and dragged him naked down the stairs and out of the building beat him repeatedly, handcuffed him, and threw him in jail without medical treatment for the night. Id. at 1343. He received an award of $ 150,000 for the claim of being denied medical attention
and another $ 150,000 for use of excessive force. Id. at 1344.
The plaintiff in the case of Musto v. Goggins, No. 84-CV-6126, 1989 WL 388583 (S.D.N.Y. Trial Date Jan. 1989)(LRP JURY), received an award of $ 305,000 when he was beaten by defendant correctional officers while held in their jail and then denied medical attention for multiple minor injuries. Id., at *1.
The Supreme Court of Onondaga County presided over a case where the jury awarded compensation for similar wrist injuries as those suffered by Hogan. See Hayes, J., Decision, Bersani v. Town of Cicero, No. 91-3965 (N.Y. Sup. Ct. Onondaga County, Oct. 1, 1992) (motion for new trial granted), modified, 199 A.D.2d 1003, 605 N.Y.S.2d 589 (4th Dep't 1993). There, plaintiff was awarded $ 400,000 in pain and suffering for his claims that he was arrested, handcuffed to the point of injuring nerves in his wrist, and assaulted by Cicero police officers. Hayes, J., Decision, supra. This award was reduced by the Trial Court, but then increased back to $ 227,777 by the Appellate Division. Bersani, 199 A.D.2d at 1003, 605 N.Y.S.2d at 589-90.
In Perry v. City of New York, No. 4603/80 (Sup. Ct. New York County, October 16, 1984), rev'd, 115 A.D.2d 376, 496 N.Y.S.2d 341 (1st Dep't 1985), the plaintiff was struck with a baton and required sutures. See New York Jury Verdict Reports, Vol. IV, Issue I, Case IV/1-13 (N.Y. Sup. Ct. Oct. 16, 1984). He was arrested and charged with disorderly conduct and resisting arrest, as was Hogan. Id. Plaintiff received an award of $ 250,000 in compensatory damages for the battery claim alone, and another $ 100,000 for false arrest. Id. The Appellate Division reversed and granted a new trial solely on the issue of damages unless the plaintiff stipulated to a reduction of the $ 100,000 false arrest award to $ 10,000 for a total award of $ 260,000. Perry, 115 A.D.2d at 376, 496 N.Y.S.2d at 341.
For violation of constitutional rights, pain and suffering, and emotional harm: in Ismail, where the plaintiff was found to be a victim of discrimination, assault, battery, false arrest and malicious prosecution, resulting in "chronic intermittent pain in his arms, torso and head," and "considerable mental and emotional injury that had not healed," which "interfered with his daily activities," the Second Circuit reinstated the original jury verdict of $ 650,000 in compensatory damages, and $ 150,000 in punitive damages. 899 F.2d at 186, 189.
Looking again at Bersani, in reviewing the award in terms of the damage to plaintiff's wrist, Bersani's claims included complaints of nerve damage to the radial sensory nerve in his hand as a result of the tightly clasped handcuffs. See Hayes, J., Decision, supra. This combined with the assault, afforded him $ 227,777 in pain and suffering after the Appellate Division modified the award. Bersani, 199 A.D.2d at 1003, 605 N.Y.S.2d at 589-90. Dr. Leroy Cooley testified for Hogan that he had experienced damage to his superficial branch of the radial sensory nerve where it traversed his right wrist.
Going outside the realm of § 1983 awards to consider the permanent damage to plaintiff's wrist: in Attridge v. Cencorp Div. of Dover Technologies Int'l, Inc., 836 F.2d 113 (2d Cir. 1987), $ 500,000 was not excessive compensation for pain and suffering and permanently impaired use of three fingers. Id. at 118.
In the case of Kenny v. Town of New Hartford, No. 32-90-960, 1990 WL 466035 (N.Y. Sup. Ct., Trial Date Oct. 1990)(LRP JURY), a New Hartford woman who was throwing a graduation party for her daughter suffered a sprained wrist, along with bruises on her arm, and emotional distress when she was arrested by a Town of New Hartford police officer. Id at *1. She recovered $ 150,000 in compensatory damages ($ 100,000 for false arrest and $ 50,000 for battery) when it was determined that the police, who were responding to a call about loud music, grabbed her arm and twisted it behind her back, and arrested her for resisting arrest and disorderly conduct. Id., at *1-2. The jury found that the music was not loud, the party was breaking up, and the plaintiff had done nothing to countenance their actions. Id., at *1.
Reviewing the total award to plaintiff, the jury in the case of Byrd v. New York City Transit Auth., No. 27725/85, (N.Y. Sup. Ct., Trial Date Jan. 1989) (LEXIS, Verdct Library, Allver File), rev'd in part 172 A.D.2d 579, 568 N.Y.S.2d 628 (2d Dep't 1991), awarded $ 2,700,000 for injuries suffered in an arrest by defendants. Byrd, 1994 Lexis 0057018. A male student was robbed on a train and located a Transit Authority officer. Id. The officer pushed him against the train in a prone spread eagle position and began to hit the plaintiff several times with his baton. Id. Upon plaintiff's attempts to avoid the blows, the officer arrested and handcuffed him. Id. He was brought to the station house and beaten again. Id. His hands remained restrained for several hours behind his back. Id. He was eventually brought to a psychiatric emergency room for treatment. Id. He suffered chest nonfracture, facial abrasions and scarring, and posttraumatic stress disorder. Id. On appeal of $ 1,450,000 of the verdict, the Appellate Division, Second Department, granted a new trial unless the plaintiff accepted a remittitur to $ 380,000 of that portion of the award. Byrd, 172 A.D.2d 579 at 579-80, 568 N.Y.S.2d at 629.
In the case of Kouratalis v. New York City Transit Auth., No.16645-87, 1990 WL 463863 (N.Y. Sup. Ct. Trial Date July 1990)(LRP JURY), plaintiff was awarded $ 306,000, including $ 300,000 for pain and suffering when she was forcibly arrested and detained overnight for allegedly using the transit system without a token, although she had a special pass. Id., at *1. Defendant officer grabbed her, causing a broken fingernail, and threw her against a wall in making the arrest. Id.
The plaintiff in the case of Narvaez v. City of New York, No. 18184-83, 1988 WL 373269 (N.Y. Sup. Ct., Trial Date Nov. 1988)(LRP JURY), was awarded $ 30,000 in compensatory damages for suffering an arrest by defendants on two occasions in one night. First he was arrested when he was in the area of a riot that broke out and was beaten in the process. Id. Upon release, he went to the police station to determine the names of the officers responsible for his ill treatment, and he was arrested again. Id.
This court recently rendered an opinion lowering a similar verdict against Utica's sister city, Rome. In the case of Mendoza, the jury, as in this case, returned a verdict of $ 200,000 in compensatory damages. 872 F. Supp. at 1113. The jury found liability against the City and one of its police officers for claims of false arrest, use of excessive force, pattern, policy or practice of failing to supervise and train its officers, and for pendant state claims. Id. at 1112-13. Post trial motions were brought pursuant to Fed. R. Civ. P. 50(b) and 59(b). Id. at 1113. In granting remittitur and lowering the award to $ 62,500, this court saw substantial inadequacies in the evidence presented; inadequacies not present in this case. There, no physician or medical expert testimony was presented by the plaintiff. See id. at 1120. This court heard no evidence of permanency of injuries. See id. at 1120. Virtually no medical evidence at all was presented.
See id. at 1120-21. Such was not the case herein. Two separate medical experts involved in plaintiff's treatment took the stand. Photographic evidence documented injuries. Testimony, medical and nonmedical alike, supported the permanency of Hogan's injuries. Allowing this verdict to stand would in no way render a result incompatible with the Mendoza decision.
Upon a review of the evidence and the awards in other cases, the award of $ 200,000 in the present case by the jury was neither a seriously erroneous result, nor was it a miscarriage of justice. Therefore, defendants' motion to set aside the verdict as excessive and for a remittitur or new trial on the issue of compensatory damages shall be denied.
The defendants are unable to show that the jury lacked sufficient evidence to support the verdict. "Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care." Dimick v. Schiedt, 293 U.S. 474, 486, 79 L. Ed. 603, 55 S. Ct. 296 (1935). Because this court can find no evidence of any impropriety in the jury's findings and subsequent verdict, all of defendants' motions to alter the jury's verdict must be denied.
Accordingly, it is
1. Defendants' motion for judgment as a matter of law is DENIED;
2. Defendants' motion for a new trial on the issue of liability is DENIED; and
3. Defendants' motion for a new trial or remittitur on the issue of compensatory damages is DENIED.
The plaintiff may make an application for attorney fees and expenses. Said application shall be filed and served on or before October 2, 1995. Answering documents shall be filed and served on or before October 16, 1995.
David N. Hurd
United States Magistrate Judge
Dated: September 18, 1995
Utica, New York.