conditions noted on the Sing Sing infirmary medical records.
These are probative opinions, expressed by a competent witness, and the
jury would have been entitled in law to accept them. But the jury was
also entitled to consider other aspects of Dr. Mihalakis's testimony,
elicited during direct or cross-examination, which could have undermined
his conclusion. I will consider some of that testimony.
On cross-examination, Dr. Mihalakis acknowledged, Tr. at 115-117, that
he had never worked in a correctional facility; he did not know what
training correctional officers received in the use of force; he did not
know "how much force is permitted to control a potentially dangerous
situation in a correctional facility" and was not familiar "with the
techniques that officers are trained in and are permitted to use in state
facilities," Tr. at 116; before forming his opinion, he did not examine
plaintiff, or speak with him, or to any of the prison medical personnel
who examined plaintiff, or to the correction officers involved.
In short, Dr. Mihalakis based his opinion principally upon the
description of plaintiffs injuries in the medical records; but he also
acknowledged on cross-examination that for forensic purposes those
records were "lacking" because the noted injuries were not "exactly
measured." Tr. at 121. In that regard, Dr. Mihalakis drew a distinction
between clinical and forensic evaluations of medical records: "You know,
we are a lot more exacting, but from a clinical standpoint it's not that
terribly important. From a forensic standpoint, where you are trying to
piece something together, it becomes more important, especially where you
have pattern injuries." Tr. at 122-123. That distinction might very well
have resonated with the jury, since Dr. Mihalakis was testifying as a
forensic pathologist and the sole purpose of his opinions was "to piece
something together," namely, the manner in which plaintiffs injuries were
caused. To be sure, Dr. Mihalakis also testified on cross-examination
that the particulars "lacking" in the medical records, while "important,"
were not "absolutely essential in coming to a conclusion . . . that this
represents a beating, not an accidental type injury," Tr. at 123;
nonetheless, the jury could reasonably have regarded Dr. Mihalakis's
description of the records' forensic shortcomings as undermining the
conclusion he drew from them.
There is an additional aspect of the Mihalakis testimony which is
illustrated by what I have just quoted. The main thrust of Dr.
Mihalakis's opinion was that of two possible causes for plaintiff's
injuries, a "beating" was the more likely. But one must ask; more likely
than what? In the testimony quoted above, Dr. Mihalakis described the
alternative cause as "an accidental type injury." Elsewhere in his
testimony he referred to the alternative cause as "a gentle fall," Tr. at
106; "in the general sense, falling down," Tr. at 108; and "an accidental
fall" as opposed to "external force applied to this man," Tr. at 124.
The problem with this testimony is that on a scale from ten to zero,
where ten represents knocking an inmate down and beating him, and zero
echoes the Psalmist ("I will lay me down in peace, and take my rest")*fn3,
Mihalakis's alternative cause is close to zero. But the trial evidence
was that the corrections officers, confronting a recalcitrant Giles and
smelling alcohol on his breath, "took him down" by the use of force
that, by definition, had to be "external." The case for plaintiff was
that the force used was excessive. Dr. Mihalakis's
opinion does not really support that theory if its main thrust is that
these injuries would not have been caused by an "accidental fall"; no one
contends that plaintiff tripped and fell accidentally. This aspect of
Dr. Mihalakis's testimony may be explained by his unfamiliarity with the
techniques correction officers are trained to use in controlling inmates
in potentially dangerous situations.
Furthermore, Dr. Mihalakis acknowledged that at least some of
plaintiffs injuries could have been caused during a routine take down:
Q. And you testified earlier that it's possible that
the knee injury could have occurred when he was taken
down, isn't that correct?
A. In the presence of squirming when he is down, the
answer is yes, if he is face down.
Tr. at 145.
Having considered Dr. Mihalakis's testimony in its entirety, I conclude
that there were sufficient reasons for the jury to reject his opinion as
to causation. Accordingly that rejection cannot be said to have led to a
miscarriage of justice.*fn4
If one disregards Dr. Mihalakis's opinion, as the jury was entitled to
do, the jury's resolution of the case must have turned upon an assessment
of the parties' credibility concerning their two competing versions of
the use of force. As noted above, I will give that evaluation proper
deference because there is no basis on which to find that the credibility
assessment led to an egregious result. The jury's verdict was one that
could have reasonably been reached based on the evidence. Accordingly,
because I conclude that the verdict was not against the weight of the
evidence, I deny plaintiff's motion for a new trial.*fn5
As discussed above, I conclude that plaintiff's failure to move for
a matter of law at the close of evidence precludes my consideration of
his present motion for judgment as a matter of law pursuant to Fed. R.
Civ. P. 50(b). As for plaintiff's Rule 59(a) motion for a new trial, I
reject as unfounded defendants' argument that the motion was untimely,
but deny the motion on the merits because plaintiff has not shown that
the verdict was against the weight of the evidence.
It is SO ORDERED.