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MARTINEZ v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

September 2, 2005.

ALEJANDRO MARTINEZ, Plaintiff,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY; POLICE OFFICER PAUL NUNZIATO, SHIELD # 865; POLICE OFFICER PATRICK CALLAGHAN, SHIELD # 816; POLICE OFFICER THOMAS MILLER, SHIELD # 1000, Defendants.



The opinion of the court was delivered by: P. KEVIN CASTEL, District Judge

MEMORANDUM AND ORDER

On February 1, 2000, during his morning commute from New Jersey to Lower Manhattan, plaintiff Alejandro Martinez was arrested outside the men's room at the PATH station concourse of the World Trade Center. He was charged with the crime of public lewdness, and remained in law enforcement custody for approximately 19 hours before release. Martinez was one of seven men arrested in separate alleged incidents of public lewdness in a single restroom of the World Trade Center's PATH station concourse between the hours of 6:05 a.m. and 8:30 a.m. As factual support for the charge, each was accused by the arresting officer of having engaged in public masturbation.*fn1 Mr. Martinez was the only one of the seven arrestees who did not plead guilty to a reduced charge of disorderly conduct. He proceeded to trial in state court, and after a one-day bench trial, he was acquitted of the charge of public lewdness.

Mr. Martinez subsequently initiated this action. He asserted claims under 42 U.S.C. § 1983 for false arrest and malicious prosecution. After discovery closed, I set the case for trial. Defendants filed no motion for summary judgment. On November 18, 2004, after a four-day trial, the jury returned a verdict in Martinez's favor on his claims against defendants Paul Nunziato, Patrick Callaghan and the Port Authority of New York and New Jersey ("Port Authority"), and awarded compensatory damages in the amount of $1,104,000: $1,000,000 in damages for emotional distress, mental anguish and loss of liberty on the false arrest claim, $1,000 in therapy expenses on the false arrest claim, $100,000 in damages for emotional distress and mental anguish on the malicious prosecution claim, and $3,000 in legal fees on the malicious prosecution claim. The jury awarded no damages for therapy expenses on the malicious prosecution claim, and no punitive damages against Nunziato or Callaghan.*fn2

  Defendants now move, pursuant to Rules 50(b) and 59(a), Fed.R.Civ.P., for judgment as a matter of law, or, in the alternative, for a new trial, and for remittitur of the damages awarded to the plaintiff by the jury.

  For the reasons explained below, the defendants' motions for judgment as a matter of law or for a new trial are denied. The jury award is remitted to $464,000. Rule 50(b) and 59(a) Standards

  Under Rule 50(b), a party may move for judgment as a matter of law or move for a new trial within ten days of the entry of judgment. Judgment was entered on November 29, 2004, and on December 13, defendants timely filed their motions. Rule 6(a), Fed.R.Civ.P. Rule 50(b) permits the Court to allow the judgment to stand, to order a new trial, or to direct entry of judgment as a matter of law. In considering a Rule 50(b) motion, a court should be deferential to the jury's role as the trier of fact. In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000), the Supreme Court held that a court considering a Rule 50 motion should review the evidence "taken as a whole." The trial court weighs all evidence in favor of the non-moving party, and must not make credibility determinations. Id. "That is, the court should give credence to the evidence favoring the nonmovant as well as that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.'" Id. at 151.

  Pursuant to Rule 59(a)(1), a party may move for a new trial in an action that was tried before a jury. Rule 59 is broadly worded, and gives the Court discretion to grant a new trial if the verdict is against the weight of the evidence or if a damages award is excessive. Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d §§ 2805-07. A court should not set aside a jury verdict and grant a new trial unless the verdict was "seriously erroneous." Piesco v. Koch, 12 F.3d 332, 345 (2d. Cir. 1993). However, "[u]nlike a motion for judgment notwithstanding the verdict, a new trial motion may be granted even if there is substantial evidence to support the verdict." Bevevino v. Saydjari, 574 F.2d 676, 683 (2d Cir. 1978). As the Second Circuit has explained: The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not.

 Id. at 684.

  A conditional order for remittitur under Rule 59 requires a plaintiff to choose between accepting the reduction of a verdict found to be excessive, or of submitting to a new trial. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998). A trial judge has discretion to overturn a jury award for excessiveness, and to order a new trial if the successful plaintiff refuses to agree to the reduced award. Id. "Where there is no particular discernable error," the Second Circuit has held, "a jury's damage award may not be set aside unless `the award is so high as to shock the judicial conscience and constitute a denial of justice.'" Id. (quoting O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988)).

  It is unclear from the defendants' papers the extent to which their motion relies upon Rule 59(a), as opposed to Rule 50(b). They contend that the jury's finding of liability on the part of the Port Authority pursuant to Monell v. Dep't of Social Services of City of New York, 436 U.S. 658 (1978), was against the weight of the evidence. The remainder of their motion is premised entirely on evidentiary rulings made during trial.*fn3 Nevertheless, I address the motion as seeking judgment as a matter of law, or, alternatively, a motion for a new trial. Background

  Consistent with Rule 50, I describe the facts of this case in the light most favorable to Mr. Martinez, the non-moving party. According to Martinez's testimony, at approximately 6:05 a.m. on February 1, 2000, he entered the men's room at the PATH train station at the World Trade Center. (Trial Tr. at 69) He stood at a urinal, urinated, and departed the men's room. (Trial Tr. at 69) Officers Paul Nunziato and Patrick Callaghan, who are defendants in this action, then arrested Martinez. (Trial Tr. at 70) Officer Nunziato told Martinez that he had observed him masturbating in the men's room, an assertion that Martinez immediately denied. (Trial Tr. at 70) According to Martinez, Officer Nunziato told Officer Callaghan that he "set a good trap" when he arrested Martinez. (Trial Tr. at 71) The two officers directed Martinez to wash his hands, and when Martinez reiterated his innocence, Officer Nunziato said, "If you want, I can break your teeth." (Trial Tr. at 76-77) Martinez was placed in a cell at the WTC PATH Station, where the six additional public lewdness arrestees were brought that morning. (Trial Tr. at 79) According to Martinez, Nunziato stated that the men were going to remain there until the officers finished paperwork and "make our quota." (Trial Tr. at 79)

  Martinez and the other men arrested for public lewdness were transported to 100 Centre Street for processing. (Trial Tr. at 88) At approximately midnight, Martinez met with an attorney and appeared before a judge. (Trial Tr. at 90-91) The judge offered to release Martinez if he would plead guilty to disorderly conduct. (Trial Tr. at 90-92) Disorderly conduct is a violation under New York law, not a crime. (N.Y. Penal L. § 10.00(3) and (6)) After consulting with his attorney, Martinez pleaded not guilty to the public lewdness charge rather than plead guilty to the disorderly conduct offense. (Trial Tr. at 91-92) Martinez was released at approximately 1 a.m. (Trial Tr. at 93)

  The case against Martinez proceeded to trial before the Hon. Analisa Torres on September 29, 2000 in the Criminal Court of the City of New York, New York County. The only trial witnesses were Martinez and the arresting officers, Nunziato and Callaghan. Martinez described his emotional state during trial as "desperate, nervous." (Trial Tr. at 97) Judge Torres found Martinez not guilty. (Criminal Trial Tr. at 82)

  Martinez described his arrest and prosecution as frightening, and testified that following the arrest, he experienced difficulty sleeping and became socially withdrawn. (Trial Tr. at 97-99) He stopped attending social gatherings, volunteer activities, and sporting events. (Trial Tr. at 98) More generally, he described himself as feeling anxious whenever he was in the presence of law enforcement officers. (Trial Tr. at 100) Martinez also asserted that he did not visit family members in Cuba because he feared that his arrest and prosecution would complicate his passage. (Trial Tr. at 103)

  In his complaint, Martinez alleged that the individual defendants, acting under color of state law, violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution, thereby giving rise to a claim under 42 U.S.C. § 1983. He alleged that he was arrested and prosecuted without probable cause, and that the Port Authority of New York and New Jersey ("Port Authority") had a de facto policy of unconstitutionally arresting men without probable cause for public lewdness at the World Trade Center's PATH station. (2d AC ¶¶ 18-29) Martinez also brought state law claims against the individual defendants for false arrest, false imprisonment, and malicious prosecution, and asserted that the Port Authority was liable for the defendants' conduct under a theory of respondeat superior. (2d AC ¶¶ 30-37)

  This case originally was assigned to the Hon. Loretta A. Preska, U.S.D.J., who set a discovery schedule and directed the parties to engage in settlement discussions. In January 2003, the plaintiff filed his First Amended Complaint ("1st AC") and Magistrate Judge Eaton established a new discovery schedule. The action was subsequently assigned to my docket. In an order of July 9, 2004, I allowed plaintiff to amend his complaint to drop two claims — negligence and conspiracy — and to add an alternative theory to his Monell claim. The Monell claim had previously been limited to assertions that the defendants targeted homosexuals for arrest and that the Port Authority inadequately trained and supervised its law enforcement officers. The alternate theory asserted that the Port Authority had a policy, custom or practice of arresting men for public lewdness at the PATH concourse men's room without probable cause, and without observing a lewd act capable of being seen by a casual passerby. (2d AC ¶ 25) Plaintiff's amended pleading ("2d AC") was filed on July 16, 2004. No request was made by defendants' counsel to reopen discovery in light of the amendment.

  Plaintiff's counsel wrote to me on August 16, 2004 advising that earlier that day he had received discovery requests from defendants' counsel, who asserted that defendants would not file a previously scheduled summary judgment motion until two weeks after receiving responses to their discovery requests, and then only if, in defendants' judgment, no further discovery was necessitated by those responses. In response to the August 16 letter, I ordered as follows: "Defendants' motion for summary judgment must be filed no later than September 2, 2004 or it will be deemed waived." (Docket Entry #37, August 20, 2004) By setting the date more than a month away, I gave defense counsel adequate time to prepare the motion or to seek leave to conduct the requested discovery. Defendants' counsel did neither. In a letter dated September 24, 2004, defendants' counsel wrote to the Court stating that he was unable to file a summary judgment motion because the plaintiff failed to produce discovery requests that defendants made after the 2d AC was filed. Counsel for defendant never sought relief from the discovery cut-off, never brought to the Court's attention a discovery dispute over the content of his post cut-off discovery requests (either under Local Rule 37.2 or otherwise) and never sought relief from my August 20 order. Nor did defendants' counsel ever adequately explain what additional evidence the Port Authority required as to its own alleged pattern or practice. I set a trial date for November 15, 2004.

  A jury was impaneled on November 15, 2004 and, after the close of evidence, it reached a verdict on November 18. On November 18, the jury returned a verdict finding Officers Nunziato and Callaghan liable on all claims, and finding that the Port Authority employed a policy and practice of making arrests on public lewdness charges without probable cause. (Trial Tr. at 675-79) For the false arrest claims, the jury awarded Mr. Martinez $1,000,000 for emotional distress, mental anguish, and loss of liberty, and $1,000 in therapy expenses. (Trial Tr. at 676) The jury also found that Mr. Martinez suffered $100,000 in damages arising from the emotional distress and mental anguish caused by his malicious prosecution, and awarded him an additional $3,000 in legal expenses. (Trial Tr. at 676) The jury found no liability on the part of Officer Miller, and did not assess punitive damages against any defendant. Discussion

  A. Plaintiff presented evidence sufficient for a jury to find liability on his Monell claim

  The defendants argue that the Port Authority is entitled to judgment as a matter of law on the plaintiff's Monell claim against the Port Authority. They assert that Martinez failed to establish that the Port Authority had an unconstitutional policy or practice that resulted in a deprivation of the plaintiff's constitutional rights by arresting men perceived to be gay, or arresting men without probable cause at the PATH concourse.

  To succeed on a claim under Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 694-95 (1978), a plaintiff must establish that a violation of the Constitution occurred pursuant to official municipal policy. This may be done by establishing that constitutional rights have been violated pursuant to a "policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or "pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-91. However, a municipality may not be held liable pursuant to a theory of respondeat superior. Id. at 691.

  A custom need not be the result of formally instituted policy. Id. at 691. The municipality's conduct must, however, be "the moving force of the constitutional violation." Id. at 694. The Second Circuit has held that municipal inaction, such as the persistent failure to discipline subordinates who violate civil rights, may support an inference of an unlawful municipal policy under Monell. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (citing Turpin v. Mailet, 619 F.2d 196, 201, 202 (2d Cir.), cert. denied, 449 U.S. 1016 (1982)).

  Mr. Martinez submitted evidence sufficient for a reasonable jury to conclude that his arrest was part of a Port Authority pattern or practice to conduct "sweep" arrests (which are also known as "directed enforcements") for the crime of public lewdness, without regard to probable cause. According to the testimony of Officer Robert Sbarra, who was the Operations Captain of PATH system police officers during the time of plaintiff's arrest, on the morning of February 1, 2000, the plaintiff was the first of seven men arrested for public lewdness between 6:05 a.m. and 8:30 a.m. (Trial Tr. at 212) Sbarra's responsibilities included deploying and monitoring the personnel under his supervision. (Trial Tr. at 207) The testimony of Sbarra, as related to arrest statistics for public lewdness, indicated a pattern in which public lewdness arrests peaked for brief periods of time, followed by several months in which no public lewdness arrests were made. During Sbarra's examination by the defendants' counsel, he testified that on one day in January 1997, 30 public lewdness arrests at one WTC PATH station restroom occurred in an eight-hour time period. (Trial Tr. at 238) Officer Sbarra also testified that during another directed enforcement in February 1997, 30 arrests occurred in an eight-hour period, and in March 1997, 25 arrests occurred in approximately eight hours. (Trial Tr. at 238-39) In 1999, there were no public lewdness arrests for the months of February through December at the WTC PATH station men's room. (Trial Tr. at 228) From January to April of 2000, there were 46 public lewdness arrests in the WTC PATH station men's room, including the seven arrests on the morning of February 1. (Trial Tr. at 228) Under the express terms of the statute, it is not sufficient that a person expose private or intimate body parts: they must do so "lewdly." N.Y. Penal L. § 245.00. As interpreted by the New York Court of Appeals, the crime of public lewdness "was aimed at protecting the public — in essence, unsuspecting, unwilling, nonconsenting, innocent, surprised, or likely-to-be offended or corrupted types of viewers — from the sight of offensive activities and materials." People v. McNamara, 78 N.Y.2d 626, 631 (1991) (holding that the interior of parked vehicle in well lit area was not a public place). To constitute public lewdness, the act must take place "(a) in a public place or (b) in private premises under circumstances in which he may be readily observable from either a public place or from other private premises, and with the intent that he be so observed." Prosecutions for public lewdness may arise from an act of masturbation or other sexual conduct undertaken in full public view. See, e.g., Matter of Paul R., 131 A.D.2d 764, 516 N.Y.S.2d 790 (2d Dep't 1987) (noting that if juvenile appellant had been an adult, he would have been guilty of a public lewdness offense for openly masturbating in the window of a private residence while uttering obscene comments); People v. Darryl M., 123 Misc. 2d 723, 726, 475 N.Y.S.2d 705, 709 (N.Y. City Crim. Ct. 1984) ("In the instant case, defendant's actions of repeatedly stroking his covered erect penis in public, in addition to rubbing his covered erect penis against the buttocks of three females, in public, is exactly the kind of behavior which the Legislature intended to encompass by utilizing the phrase `any other lewd act' in the context of § 245.00.").

  The jury considered evidence that the Port Authority conducted intensive sweeps that resulted in high numbers of public lewdness arrests during short bursts of time. While, as the defendants point out, there is nothing per se unconstitutional about law enforcement sweeps, the plaintiff's Monell claim was premised on the contention that the Port Authority had an established practice of arresting men for public lewdness in the men's room at the World Trade Center's PATH station concourse without regard to probable cause. Officer Nunziato, who arrested Martinez for public lewdness, testified that he personally observed Mr. Martinez openly and publicly masturbating at one of the men's room urinals. (Trial Tr. at 251) By contrast, Mr. Martinez testified that he merely urinated and had never masturbated in a public bathroom. (Trial Tr. at 69, 76) The jury credited the testimony of Mr. Martinez over the testimony of Officer Nunziato as to the circumstances of the arrest. From Mr. Martinez's testimony, the jury concluded that Mr. Martinez was arrested without probable cause.

  In his questioning of Officer Miller, the plaintiff's counsel pointed out that the documentation of the public lewdness arrests contained nearly identical descriptions of the circumstances surrounding the acts of public lewdness. (Trial Tr. at 289-91) Although Martinez was the only one of the seven individuals arrested on February 1 who testified, the jury had before it the documents pertaining to each of the arrests, and heard testimony pertaining to the circumstances of these arrests, which happened in rapid succession over approximately two-and-a-half hours.

  In addition, Mr. Martinez testified that while he was in police custody, Officer Nunziato explicitly stated that the arrests were made pursuant to a quota:
Q. Now, during the time that these things were going on, what was the general demeanor of the police officers, the three police officers in the room?
A. They humiliated us. . . . And he said, no, you're going to be here until we finish the paperwork and we make our quota.
Q. Were there any other conversations that you heard between — well, first of all, who was the police officer who said that?
  A. Nunziato. (Trial Tr. 79-80)*fn4 The jury was entitled to credit Mr. Martinez's testimony as establishing that the Port Authority had a custom of performing public lewdness arrests pursuant to a quota. Moreover, Mr. Martinez testified that Officer Miller said to Officer Nunziato, "oh, how fast, you caught one really fast," to which Nunziato replied, "well, I set a good trap." (Trial Tr. at 71) The jury also had before it documents describing each of the seven arrests. The jury was entitled to conclude that the testimony of the officers was not credible, and that based on the exhibits and testimony, these arrests occurred without probable cause.

  The jury also was entitled to credit the defendants' testimony that the Port Authority did not train its officers as to the procedures for conducting directed enforcements. Officer Sbarra testified that he did not personally provide training as to public lewdness arrests, and Officer Nunziato testified that he received no formal training on how to conduct directed enforcement actions. (Trial Tr. at 237, 243) Officer Callaghan indicated, however, that he received training from other officers and from assistant district attorneys. (Trial Tr. at 313)

  The defendants' post-trial motion argues that the officers' lack of training is immaterial to the Monell claim, a contention that has no basis in law. A municipality's policy or custom may be demonstrated in its failure to train or supervise officers. City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). Liability attaches "where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id. at 388. In Dodd v. City of Norwich, 827 F.2d 1, 5 (2d Cir. 1987), the Second Circuit held that a Monell claim arose when a city trained a police officer to handcuff a suspect while holding a gun, thus posing a risk that the gun could discharge against the suspect during an altercation. See also Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756 (2d Cir. 2003) (affirming district court's denial of defendant's summary judgment motion, since questions of fact existed as to whether the municipality's training or lack thereof caused officer's fatal shooting of a fleeing suspect). If a municipality is aware that inadequately trained employees will enforce a policy, but elects not to train them, the municipality may incur liability. Amnesty America v. Town of West Hartford, 361 F.3d 113, 125 (2d Cir. 2004) (citing City of Canton, 489 U.S. at 387).

  Nunziato's testimony made clear that the arrest procedures employed during a sweep differed from typical arrest procedures, with paperwork and processing performed on an expedited basis. (Trial Tr. at 276-77) The jury may logically have inferred that the practices of the Port Authority during the sweep differed from the practices used in a routine arrest, and that the officers were not trained to conduct arrests during a sweep so as to comport with the constitutional guarantee that a person not be arrested except upon probable cause to believe that he has committed a crime.

  Although the jury was supplied with evidence sufficient to conclude that the Port Authority had a custom that led to widespread public lewdness arrests without regard for probable cause, it may also have concluded that the Monell violation arose from a "decision officially adopted and promulgated by [the Port Authority's] officer?." Monell, 658 U.S. at 690. A single unconstitutional act may establish Monell liability, provided that it occurred under the direction of a person whose edicts or acts reflect official policy. Rookard v. Health & Hosp. Corp., 710 F.2d 41, 45 (2d Cir. 1983). As Judge Lumbard observed, "[t]he difficulty, of course, lies in identifying those officials whose actions, because they may fairly be treated as the municipality's own actions, establish policy. Where an official has final authority over significant matters involving the exercise of discretion, the choices he makes represent government policy. An official has final authority if his decisions, at the time they are made, for practical or legal reasons constitute the municipality's final decisions." Id. (citation omitted). Monell liability is not predicated on whether a given official is a policymaker, but rather, whether the official has been delegated authority in a manner that his or her decision may be "fairly attributable to the municipality." Id. at 45 n. 3.

  Nunziato and Miller testified that Sbarra — who held the title of commanding officer at the time — directed the sweep of February 1. (Trial Tr. at 245) Sbarra described his title as that of "assistant chief, police chief of patrol for the Port Authority Police." (Trial Tr. at 205) In his deposition, Sbarra testified that he was the commanding officer of the WTC PATH station at the time of Martinez's arrest; at trial Sbarra testified that he was the "operations captain" and reported to a commanding officer. (Trial Tr. at 205-06) At the time of the February 2000 sweep, Sbarra had 100 officers working under his command. (Trial Tr. at 206) He was responsible for police activity at 13 stations in the PATH system. (Trial Tr. at 207) Officer Sbarra testified as follows:
Q. Your job overall, one way of saying your job was you were in charge of addressing criminal activity that you suspected was going on or came to light in the PATH train stations?
A. Yes.
Q. You were in charge of directing operations to deal with specific criminal problems that might occur? A. Yes.
Q. One of those problems was public lewdness in some of the public bathrooms. Is that right?
A. That was one of the problems, yes.
Q. Now, part of your job was to review the arrest that officers under your command did make, correct?
A. Yes.
(Trial Tr. at 208) Given the evidence as to Sbarra's responsibility over the individual defendants and his decision to direct sweeps targeted to public lewdness arrests in the PATH station men's room, the jury, in the context of all other evidence, could reasonably conclude that he established a policy that prompted widespread public arrests without regard to probable cause.

  Therefore, considering the trial evidence as a whole, I conclude that a reasonable jury could have concluded that the Port Authority had a policy, custom or practice of initiating public lewdness arrests as part of "sweeps" to clear the restrooms of persons subjectively viewed by the Port Authority as undesirable, regardless of whether there was probable cause to make the arrests.

  B. Defendants were not entitled to an instruction regarding Mr. Martinez's pantomime at the criminal trial

  As part of his defense to the criminal charge, Mr. Martinez was asked by his lawyer at trial "to stand up and simply show us by pantomime, if you understand what I mean, the motions you made with your hand as you finished urinating before you zipped up your pants and left. Just show us how you urinated that day." (Criminal Trial Tr. at 64) Martinez mimicked the motions he made while securing his zipper at the men's room urinal. (Criminal Trial Tr. at 64) After the demonstration, his lawyer at the criminal trial stated as follows: "Let the record reflect that Mr. Martinez made a motion that could be misled [sic] as an up and down, back and forth motion with his hand as he's finished pretending urinating." (Criminal Trial Tr. at 65) I admitted Martinez's counsel's description of the pantomime from the criminal trial, but denied defendants' request to have Martinez engage in a reenactment of the pantomime. This, defendants assert, was error.

  The defendants conducted Martinez's deposition on January 28, 2004, at which point their attorney asked Mr. Martinez to reenact the pantomime he performed at the criminal trial. Plaintiff's counsel objected, and the parties telephoned Magistrate Judge Eaton for a ruling as to whether Mr. Martinez must perform the pantomime. Magistrate Judge Eaton ruled that it was sufficient for Mr. Martinez to verbally describe his gestures, and that a pantomimed reenactment was unnecessary. (Martinez Dep. at 434-5, 49-51)

  Thereafter, defendants' argued that the plaintiff's failure to perform the pantomimed demonstration was deliberate and that the defendants were entitled to have the court instruct the jury that it should draw a negative inference because the plaintiff did not perform the pantomime. Defendants also argued that Mr. ...


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