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Cruz v. Henry Modell & Co.

March 31, 2008


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge


After trial of this civil rights action, the jury rendered a verdict in favor of Plaintiff, Carmen Cruz. Defendants Henry Modell & Company, Inc. d/b/a and/or a.k.a Modell's Sporting Goods ("Modell's") and Gregory Kellerman (in his individual and official capacity, "Kellerman") (together with Modell's, "Defendants") have moved for a new trial, pursuant to Federal Rules of Civil Procedure 49(b) and 59(a). Plaintiff has moved for attorney's fees pursuant to 42 U.S.C. § 1988 and for taxable costs pursuant to Rule 54.1 of the Local Rules for the United States District Court for the Southern and Eastern Districts of New York. The decision on the motion for attorney's fees is set forth in an accompanying Order. For the reasons set forth below, Defendants' motion for a new trial is DENIED.


Plaintiff commenced this action alleging violations of 42 U.S.C § 1981, 42 U.S.C. § 2000a, the New York State Civil Rights Law, the New York State Executive Law, as well as claims of false imprisonment, negligence, defamation, intentional infliction of emotional distress, negligent infliction of emotional distress and vicarious liability. Plaintiff alleged that Defendants committed racially discriminatory acts against her which deprived her of her federally protected rights.

During the trial, evidence was presented that on March 18, 2004, Olga Sanders and the Plaintiff had decided to go shopping to purchase some sports jerseys for their daughters to wear to a 16th birthday celebration for one of the Sanders' cousins. Trial Transcript ("Tr.") at 39-41. Plaintiff and Olga Sanders were long time friends. Id. at 39. They decided to take a trip to the Tanger Mall Outlet in Riverhead, New York. Id. at 42. The two friends were accompanied by Tiffany Sanders who was 14 years old at the time. Id. at 41. When they were unable to find the sports jerseys they wanted at the Nike outlet store, a sales assistant there directed them to the Modell's store about half a mile away. Id. at 44. Plaintiff, along with Olga Sanders and Tiffany Sanders went to the Modell's store in search of the jerseys. Id. at 44-45, 289, 303.

Plaintiff testified that shortly after she arrived at the Modell's store, she was approached by Defendant Kellerman while in the men's jerseys section. Id. at 305-304. Defendant asked if she needed help. Id. Plaintiff testified that she asked "where is your children's section." Id. at 304. According to Plaintiff, she had not, up to this point, handled any merchandise in the store. Id. at 305. Defendant Kellerman testified that as he approached Plaintiff, he witnessed her "tugging, a pulling motion on the mid-chest section of the jersey." Id. at 666; see also 667.

Plaintiff then proceeded to the children's section where she was approached by Defendant Kellerman for a second time. Id. at 305. She located the jersey she was interested in, selected a matching hat and then located Olga and Tiffany Sanders. Id. at 307. The three of them had found what they needed and were about to proceed to the register when Plaintiff was approached by police officers. Id. at 50-51, 120, 308. The officers informed Plaintiff that she had been accused of shop lifting by Defendant Kellerman. Id. at 308. Plaintiff was handcuffed in front of her friends and led from the store. Id. at 51, 308. Neither Plaintiff nor Olga Sanders were permitted to purchase the items they had selected. Id. at 58-59, 148-49, 170. Ms. Sanders overheard Defendant Kellerman saying "why you people have to come down here and shop." Id. at 62.

Defendant Kellerman completed a civilian arrest form stating that he wanted Plaintiff arrested. Id. at 440. According to Riverhead Police Officer Benjamin Goodale, the complainant -- Defenant Kellerman in this case -- signed the bottom of the form attesting to the fact that he placed the person under arrest and what the person was being arrested for. Id. at 440-41. Because this was a civilian arrest, Defendant Kellerman signed the form and verbally announced to Plaintiff that she was being placed under arrest for petit larceny. Id. at 440, 443. Plaintiff was arrested and charged with attempted petit larceny and attempted criminal mischief. Plaintiff was taken by police car to the Riverhead police station. Id. at 321. Plaintiff was placed in a cubicle and handcuffed to a bar. Id. at 322. She was handcuffed for three hours. Id. at 312. Plaintiff remained in the police precinct for several hours, was required to use the bathroom while accompanied by an officer and felt she was ridiculed for attempting to steal a New York Jets football jersey. Id. at 324-25. Sometime later that day, Defendant Kellerman came to police headquarters at 210 Howell Avenue and signed the charges. Id. at 444. Police Officer Goodale testified that Plaintiff would not be released until Defendant Kellerman came to sign the charges. Id. at 444-45. Goodale handled processing of the arrest and the paperwork. Id. Approximately one year later, Plaintiff went to trial in Suffolk County on the criminal charges and was found not guilty on all counts. Id. at 334, 346, 622.

At the instant trial, Plaintiff offered testimony concerning the effect the actions of Defendants had upon her. Plaintiff testified that at the time of her arrest she was "confused . . . didn't know what was going on . . . devastated . . . embarrassed . . . [and] humiliated . . .being placed in handcuffs in front of all these police officers, in front of Tiffany, and she's a child." Id. at 311. After March 2004, Plaintiff "shut down," she was "afraid to go anywhere thinking something was going to happen to me." Id. at 347. She stopped dating, going to bible study and socializing in general. Id. at 348. Plaintiff testified that even "after the [criminal] trial, [she] was still depressed even though [she] was found not guilty." Id. at 346. Plaintiff further testified she experienced "night sweats, particularly thinking someone is coming to arrest me." Id. at 359. She experienced sleeping problems, anxiety and weight gain. Id. at 402. According to Plaintiff, she had difficulty going shopping for fear of being arrested. Id. at 420. In April 2005, Plaintiff sought treatment from Dr. James Lassiter, a clinical psychologist, at the urging of her mother, lawyer and doctor. Id. at 226, 229, 354. According to Plaintiff, her treatment "didn't go so good," because " [e]verytime [she] talk[s] about this, it's a reminder of what happened to [her] on that day." Id. at 355.

The testimony of Plaintiff was corroborated by the testimony of her friends and treating psychologist. Olga Sanders testified that Plaintiff's behavior changed significantly after her March 2004 arrest. Id. at 65-66. This testimony was corroborated by Tiffany Sanders. Id. at 173. According to Olga Sanders, Plaintiff "didn't bother to come outside at all," id. at 65, the incident "gets her depressed," "feeling very bad, nervous." Id. at 68. Olga Sanders also testified that she had observed a change in Plaintiff's relationship with her daughter. Id. at 75. Tiffany Sanders testified that after the incident, Plaintiff "didn't want to come outside much," "she was real mellow, into herself most of the time." Id. at 174.

Dr. James Lassiter, Plaintiff's treating psychologist, testified that Plaintiff "was having difficulty with feelings of anxiety with issues around avoidance and dissociation." Id. at 231. Dr. Lassiter stated that Plaintiff was "having some difficulties trying to manage her tension and her stress and was not able to handle it well. Id. He concluded that Plaintiff was suffering from a "generalized anxiety disorder." Id. at 240-41. When asked if he had made a determination at the time of treatment as to the source of Plaintiff's stress, he stated that "[i]t certainly appeared to be the experience that she had in the arrest at the department store and the following processing at the police department." Id. at 231. Dr. Lassiter testified further that Plaintiff did not continue with her treatment because "it just felt lousy to keep talking about it." Id. at 255-56.

Plaintiff alleged that the events which occurred in Modell's that day were racially motivated and that she was falsely arrested and falsely accused of criminal activity. Plaintiff asserted additional state law claims for false imprisonment, negligence, defamation and emotional distress. Defendants denied that the events which occurred in the Riverhead Modell's store in March of 2004 were racially motivated and asserted that there were sufficient grounds for the store manager to involve the police and to effect the arrest of Plaintiff.

Prior to the commencement of the trial, Plaintiff withdrew her claims for violations of 42 U.S.C. § 2000a, New York Civil Rights Law § 40 and negligent infliction of emotional distress. On March 5, 2007, the case went to trial before a jury. At the close of evidence, the Court dismissed the claim for intentional infliction of emotional distress. On March 13, 2007, after a six day trial, the jury returned a verdict. The jury awarded Plaintiff a total of $338,004.72 in compensatory damages and $150,000 in punitive damages on Plaintiff's claims of intentional discrimination under 42 U.S.C. § 1981, false imprisonment and negligence. Defendants were found not liable for violation of New York Executive Law § 296 nor for the state law defamation claim.


Defendants have moved for a new trial pursuant to Rules 49(b) and 59(a) of the Federal Rules of Civil Procedure. They argue that a new trial is warranted because: (1) the jury's verdict was inconsistent; (2) the compensatory damages were grossly excessive; (3) the punitive damages were not warranted and/or they were grossly excessive; and (4) the testimony of Dr. James Lassiter was improperly admitted. For the reasons discussed below, Defendants have not met their burden to establish that a new trial is warranted.

A. Standard For A New Trial

This Court should grant a motion for a new trial if it "'is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998)(quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988)), cert. denied, 526 U.S. 1130 (1999) . A court has the power to grant a new trial even if substantial evidence supports the jury's verdict. See Landau, 155 F.3d at 104. The trial court is free to weigh the evidence, including witness credibility, for itself, and need not view it in the light most favorable to the non-moving party. Id. "[W]here the resolution of the issues depend[s] on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial." Id. at 104-05 (quoting Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992)). "However, these principles of deference to the jury do not override the trial judge's duty to see that there is no miscarriage of justice." Id. at 105.

This is a less stringent standard than the standard applied to a motion for judgment as a matter of law, King v. Macri, 800 F. Supp. 1157, 1160 (S.D.N.Y. 1999) (quoting Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987)); however, "Rule 59 is not a vehicle for relitigating old issues . . . or otherwise taking a 'second bite at the apple'. . . ." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). Rather, "[a] motion for a new trial should be granted when, in the opinion of the district court, the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)). "On a motion for a new trial, the moving party bears the significant burden." Trinidad v. American Airlines, Inc., No. 93 Civ. 4430, 1997 WL 79819, at *1 (S.D.N.Y. Feb. 20, 1997).

B. Inconsistent Verdict

Defendants contend that the jury's finding that Defendants are liable under 42 U.S.C § 1981 for denying Plaintiff the right to contract, but not under New York Executive Law § 296 for denial of equal access to public accommodations based on race, cannot be reconciled. Because these two findings cannot be reconciled, Defendants argue, they are entitled to a new trial pursuant to Rules 59(a) and 49(b) of the Federal Rules of Civil Procedure.

Defendants quote Rule 49(b), General Verdict accompanied by answers to Interrogatories, to support their position. Fed. R. Civ. P. 49(b) provides:

(b) General Verdict with Answers to Written Questions.

(1) In General. The court may submit to the jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide. The court must give the instructions and

explanations necessary to enable the jury to render a general verdict and answer the questions in writing and must direct the jury to do both.

(2) Verdict and Answer Consistent.When the general verdict and the answers are consistent, the court must approve, for entry under Rule 58, an ...

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