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SCHWENK v. KAVANAUGH

March 24, 1998

DWAYNE SCHWENK, Plaintiff,
v.
MICHAEL KAVANAUGH, Ulster County District Attorney; and KATHLEEN KEATING, Assistant District Attorney, Ulster County, Defendants.



The opinion of the court was delivered by: HURD

SUPPLEMENTAL MEMORANDUM-DECISION and ORDER

 I. INTRODUCTION

 By Memorandum-Decision and Order dated March 5, 1998, plaintiff was awarded $ 1.00 in nominal damages after a finding that defendants Michael Kavanaugh ("Kavanaugh") and Kathleen Keating ("Keating") violated plaintiff's Federal constitutional rights. Additionally, a finding was made that the facts of the case support an award of punitive damages. Decision was reserved as to the amount of punitive damages to be awarded pending submissions from the parties. See Schwenk v. Kavanaugh, 4 F. Supp. 2d 116, 1998 U.S. Dist. LEXIS 3791, No. 94-CV-773, Memorandum-Decision and Order (N.D.N.Y. Mar. 6, 1998)(Hurd, M.J.)(hereinafter "Schwenk III"); see also Report-Recommendation (Oct. 11, 1995)(Hurd, M.J.); Order (Aug. 8, 1996)(Scullin, D.J.). Familiarity with the prior decisions is assumed.

 Plaintiff filed a Demand for Hearing limited to the assets and liabilities of defendants (Docket No. 62). However, defendants filed a document in which the Ulster County Attorney, Francis T. Murray, confirmed that any amount of punitive damages awarded against defendants which is sustained on appeal will be paid by Ulster County (Docket No. 63). Accordingly, a hearing as to personal assets and liabilities in order to determine an amount of damages which would be punitive to these defendants is unnecessary. See Mathie v. Fries, 121 F.3d 808, 816 (2d Cir. 1997).

 II. DISCUSSION

 The purpose of punitive damages is to punish wrongdoing, deter the current defendants and others like them, from similar conduct in the future. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19-20, 113 L. Ed. 2d 1, 111 S. Ct. 1032 (1991). By deterring similar wrongdoing in the future, the public is protected. Id. at 19. Punitive damages are not in any way meant to compensate the victim. Id. An award of punitive damages is discretionary, and should be made upon "consideration [of] the character and the degree of the wrong as shown by the evidence and necessity of preventing similar wrong." Id. (internal quotation omitted). Id.

 The defendants in this case procured plaintiff's psychiatric records in violation of his constitutional rights, warranting imposition of punitive damages. See Schwenk III. The public has a significant interest in protecting the confidentiality of medical records in general, and of psychiatric records in particular. Thus, the public interest in deterring the type of conduct in which defendants engaged is high. It is important in protecting the public interest that not only these defendants, but other public prosecutors, attorneys, and anyone in a position to obtain medical records be deterred from doing so without following the steps necessary to assure that the confidentiality of a patient, such as the plaintiff, is preserved to the maximum extent possible.

 An amount must be determined which would further the primary goal of this punitive damage award, deterrence. Because Ulster County will pay any punitive damage award assessed against the defendants, a large monetary award will not serve as a deterrent to them. See Mathie, 121 F.3d at 816 n.6; Sostre v. McGinnis, 442 F.2d 178, 205 (2d Cir. 1971)(punitive damage award with minimal deterrent impact unwarranted), cert. denied, 404 U.S. 1049 (1972); Caplin v. Oak, 356 F. Supp. 1250, 1259 (S.D.N.Y. 1973)(punitive damages warranted only if showing of bad faith or deterrent impact). While a large punitive award here may provide deterrence to others who would not be reimbursed by their employer, in the circumstances presented here, a large punitive award is not necessary.

 Judicial notice is taken that since the filing of Schwenk III, an article appeared on the front page of the New York Law Journal. *fn1" See Gary Spencer, Ulster D.A. Assessed For Punitive Damages, New York Law Journal, Mar. 16, 1998, at 1 (hereinafter "NYLJ Article"); see also Today's Top Stories, (Mar. 16, 1998), . The article, featuring a prominent photograph of Kavanaugh, summarized the Schwenk III decision assessing punitive damages. See NYLJ Article. The article contained many quotes from Schwenk III, and characterized the decision as "a very rare instance of a district attorney being held liable for official conduct." See id. The New York Law Journal had an average distribution of 15,513 copies each day (Monday to Friday) for the twelve months ending March 31, 1997. Audit Bureau of Circulations, Audit Report: Newspaper, New York Law Journal (Morning), New York, NY, at 1, 5 (ABC October 1997). The distribution is nationwide, but the concentration is in New York City and New York State. See id. It is estimated that the daily distribution is now 16,000 copies with a readership estimated to be triple that figure, or 48,000. Telephone Interview by Law Clerk Donna Case with Donna Miceli, Circulation Dep't, New York Law Journal (Mar. 19, 1998).

 Appearing in an article discussing conduct which warrants punitive damages, with a wide circulation among the bench and bar, must be considered punitive to the attorneys whose conduct is the subject of the article. Further, the threat of appearing in another such article provides sufficient deterrence to these defendants. The deterrent effect of the New York Law Journal article is as powerful, if not more so, as any monetary award would be. Moreover, the deterrent effect of this type of article extends not only to the defendants in this case, but literally across the country to all of the readership of the New York Law Journal.

 III. CONCLUSION

 Accordingly, an award of One Dollar ($ 1.00) in punitive damages is made against Kavanaugh, and an award of one Dollar ($ 1.00) in punitive damages is made against Keating. Any additional monetary award would be superfluous and would not provide any additional punishment or deterrence above and beyond the punishment and deterrence provided by Schwenk III and the New York Law Journal article. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981)(fact-finder has broad discretion in making punitive damages award).

 The plaintiff may file and serve an application for attorney's fees and expenses on or before April 6, 1998. Defendants may file and serve a response to the application for attorney's fees on or before April 20, 1998. Final judgment will be entered following the decision regarding attorney's fees and ...


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