The opinion of the court was delivered by: Ramon E. Reyes, Jr. United States Magistrate Judge
RAMON E. REYES, JR., U.S.M.J.
Plaintiff Shawn Lewis initiated this action against the City of New York ("City"), Police Officers Dean Anagnostos, Shakmawa Hafiz*fn1 ("defendants"), Sergeant John Marchello and other unknown officers, asserting claims under 42 U.S.C. § 1983 and New York common law. After certain of plaintiff's claims were dismissed, trial proceeded against all named defendants on the plaintiff's claims of excessive force under § 1983 and battery under New York law. On April 7, 2009, a jury found only the City vicariously liable for the battery committed by a nonparty, Officer Jason Boreman, and awarded Lewis approximately $4.6 million in compensatory damages.
On May 1, 2009, the parties filed post-trial motions. Defendant*fn2 moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50, or in the alternative, for a new trial pursuant to Rule 59. Plaintiff moved to amend the verdict, or in the alternative, for a new trial as to damages pursuant to Rule 59. On September 21, 2009, the Court heard oral argument on the parties' cross-motions, allowed additional briefing on the issue of reasonable compensation, and sua sponte raised the issue of plaintiff's counsel's failure to name Boreman as a defendant in this matter pursuant to 42 U.S.C. § 1983, and its consequences on Lewis's ability to recover attorney's fees pursuant to 42 U.S.C. § 1988(b). On October 30, 2009, plaintiff filed a motion to amend the complaint to add Boreman as a defendant pursuant to Federal Rule of Civil Procedure 15(c). For the reasons set forth below, all the motions are denied in their entirety.
This case involves serious injuries that plaintiff sustained on April 9, 2005 at 745/749 Pennsylvania Avenue ("premises") in Brooklyn, New York. The parties agree that plaintiff was at the premises to see Nadia Parsons, his ex-girlfriend; that Parsons had received an order of protection against plaintiff in February 2005; that Parsons called the police to complain about the plaintiff; that the defendants Marchello and Anagnostos and Officer Boreman (collectively "police") all responded to that call; that in order to evade the police, plaintiff ran up to the roof of the premises; that the police pursued plaintiff onto the roof; that plaintiff fell from the roof to the alleyway below; and that the fall was the cause of plaintiff's severe injuries. The material fact in dispute at trial was the cause of plaintiff's fall from the roof: was he pushed by Officer Boreman, or did he fall on his own?
Lewis testified that after reaching the roof, he originally considered going down a fire escape, but decided against it and walked back towards the center of the roof. (Trial Tr. 27, Mar. 26, 2009.) As he was walking back to the center of the roof of 749 Pennsylvania Avenue, Officer Boreman pointed a gun at him, asked why he was running from the cops, and gave him a "hard shove." (Id. at 28.) At that time, plaintiff was approximately three feet from the roof parapet, which was approximately two-feet high. (Id. at 29-30.) This shove was significant enough to cause plaintiff to stumble backwards over the parapet and fall to the ground in the alleyway below. (Id.)
II. Sergeant Marchello's Account
Marchello testified that upon reaching the roof, he followed one of his fellow officers around for a few moments and eventually stopped in front of the door to the roof of 749 Pennsylvania Avenue. (Trial Tr. 258-59, Mar. 23, 2009.) While standing near the door, Marchello said "he's not up here," to which Officer Boreman replied "Sergeant, he's up here." (Id. at 260.) Then Marchello saw a look of shock and surprise on Boreman's face, saw Boreman suddenly go to the rooftop's edge, and then heard Boreman yell, "get down there, get down there." (Id.) At that point, Marchello was aware that someone had fallen from the roof. Marchello testified that he never saw plaintiff on the roof at any time, did not see Officer Boreman or defendant Anagnostos push plaintiff off of the roof, and that the total time during which he could not see Boreman and Anagnostos while on the roof was three seconds. (Id. at 273-74, 284-85.)
III. Officer Anagnostos's Account
Anagnostos testified that once on the roof, he proceeded to the back part of the roof of 745 Pennsylvania Avenue. (Trial Tr. 149, Mar. 24, 2009.) After shining his flashlight down the fire escape, and seeing nothing, Anagnostos began walking back towards the door where Sergeant Marchello was standing. (Id. at 151.) As he was walking back towards Sergeant Marchello, Anagnostos heard Officer Boreman yell "He's over here." Immediately after Boreman uttered the word "here," Anagnostos heard a loud "thump." (Id. at 152.) Though Anagnostos could not see Boreman when he heard him yell, he testified that he had a general idea that Boreman was on the right side of the roof of 749 Pennsylvania Avenue. (Id.) Anagnostos then ran to the parapet overlooking the alley next to 749 Pennsylvania Avenue and saw Lewis lying in the alley below. (Id. at 153.) He then looked at Boreman and asked him what had happened, to which Boreman replied: "He jumped." (Id.)
IV. Officer Boreman's Account
Officer Boreman testified that once on the roof, he shined his flashlight and said "police, don't move," although he did not see anyone on the roof at that time. (Trial Tr. 322, Mar. 24, 2009.) After proceeding around the roof of 749 Pennsylvania Avenue, Boreman saw something move near the middle of the parapet on the alley side of 749 Pennsylvania Avenue, and then "simultaneously" heard a loud "bang" and a human voice. (Id. at 325.) Boreman then ran to the parapet, looked into the alley, and saw Lewis lying in the alleyway. (Id.) Boreman denied asking Lewis why he ran from the police, and also denied pushing Lewis off of the roof. (Id. at 333.)
Dr. Pugh, plaintiff's expert biomedical engineer, opined that Lewis was pushed from the roof ("plaintiff's theory"). In forming his opinion, Dr. Pugh focused equally upon the parts of Lewis's body that were and were not injured. (Trial Tr. 20-21, Mar. 27, 2009.) For example, Dr. Pugh testified that Lewis's injuries (i.e., compression fracture of the T-12 vertebrae and forearm fracture) were consistent with a lateral displacement from the roof (or, "tumble dynamic") that would not have occurred if Lewis had merely fallen along the side of the building after slipping from the terra cotta parapet, as the defendants claimed ("defendants' theory"). (Id. at 22-24, 35-36, 40-49.)
Dr. Pugh further testified that a fall according to defendants' theory would have been mainly vertical (i.e., without a significant lateral displacement from the wall), causing a significant injury to Lewis's lower extremities and/or lower lumbar spine. (Id. at 24-25.) However, Lewis had no such injuries. Dr. Pugh also testified that the lack of evidence that Lewis made contact with the side of the building (e.g., damage to the loose hanging cables, contact with the windowsills, road rash from the stucco), also undercut defendants' theory. (Id. at 40-43.)
Dr. Otis, defendants' expert biomedical engineer, opined that Lewis's injuries were consistent with the defendants' theory. According to Dr. Otis, Lewis impacted the ground in the following manner: he landed feet first, whereupon his leg joints bent forcing him into somewhat of a squatting position; his right arm then hit the ground, causing the multiple bone fractures in his arm; and then his buttocks hit the ground, causing the fracture of the T-12 vertebrae. (Trial Tr. 39, Apr. 1, 2009.) Dr. Otis further testified that: (1) a lack of injury to Lewis's lower extremities was not inconsistent with his opinion because the bend in Lewis's leg joints allowed his leg muscles to act as an energy absorber (Id. at 35, 39); (2) the lack of injury to Lewis's lower lumbar spine was not inconsistent with his opinion because (a) which vertebrae would have fractured depended on the orientation of Lewis's spine at the time of impact, and (b) the T-12 is a relatively small (i.e., weak) vertebrae. (Id. at 37.)
Dr. Otis also ruled out the probability that Lewis was pushed because there was a greater probability that the resulting "tumble dynamic" would have caused a head injury, rather than a spine injury. (Id. at 40.) However, on cross-examination, Dr. Otis did acknowledge the possibility that a push could have caused a spinal injury, rather than a head injury. (Id. at 41, 59-60.)
VII. Deliberations & Verdict
The jury began deliberating on Friday, April 3, 2009. Throughout the course of deliberations, the Court received numerous notes from the jury. Some of those notes indicated that the jury could not reach a unanimous verdict on liability (see e.g., Trial Tr. 105, Apr. 3, 2009).*fn3
These notes caused the Court to deliver two Allen charges, the second on the morning of Tuesday, April 7, 2009. Approximately one hour later, the jury indicated that it had reached a verdict. (Trial Tr. 63, Apr. 7, 2009.) With the jury, parties and attorneys present in the courtroom, the Special Verdict Sheet was read aloud.
Question 1 of the Special Verdict Sheet asked the jury to determine whether Lewis had proven by a preponderance of the evidence that a police officer(s) pushed him off the roof, and asked the jury to identify that officer(s). The jury answered "yes," and identified Officers Boreman, Anagnostos and Sergeant Marchello.*fn4 The remainder of the Special Verdict Sheet (questions 3-6) indicated that the jury awarded Lewis an aggregate of approximately $4.6 million in damages. While the jury was being polled, one of the jurors indicated concern over "they way [the Court] read" the Special Verdict Sheet. (Trial Tr. 67, Apr. 7, 2009.) Specifically, the juror expressed concern over whether the damages amounts were being awarded yearly or cumulatively. (Id.) The jury was then instructed to return to the jury room to confer and determine precisely what the verdict was, i.e., whether the amounts were being awarded cumulatively or yearly. (Id. at 68.) Shortly thereafter, the jury returned a note that read: "The wording of the special verdict sheet is confusing. Can we make changes to our answers?" (Id. at 70.) At this point, the defendant moved for a mistrial, arguing that the verdict was inconsistent with the evidence offered at trial. (Id. at 71.) I did not declare a mistrial, and instead called the jury back into the courtroom, further instructed them as to the damages issues,*fn5 and provided them with a second Special Verdict Sheet, rather than allowing the jury to modify the first. (Id. at 73-75.)
Shortly thereafter, the jury returned the second Special Verdict Sheet which contained changes to the verdict on liability. Question 1 of the second Special Verdict Sheet was again answered "yes," but only identified Officer Boreman. Question 2 of the Special Verdict Sheet asked the jury if Lewis had proven by a preponderance of the evidence that Sergeant Marchello was personally involved (by virtue of his status as a supervisor and his close proximity to the events) in the use of force identified in Question 1. The jury answered "no." The remainder of the second Special Verdict Sheet was answered in a manner identical to the way in which the first Special Verdict Sheet was answered, awarding Lewis approximately $4.6 million in damages.
The City had previously conceded that all the police officers at issue (including Boreman) were acting within the scope of their employment. (Trial Tr. 23, Apr. 2, 2009.) Thus, even though Boreman was not a defendant in this action, because the jury found that Officer Boreman had pushed Lewis, the City was found vicariously liable on a theory of respondeat superior.
On September 25, 2009, the Court heard oral argument on the parties' cross-motions for a new trial. At the oral argument, the Court sua sponte raised the issue of plaintiff's counsel's failure to name Boreman as a defendant in this matter pursuant to 42 U.S.C. § 1983, and how that failure effected plaintiff's ability to recover attorney's fees pursuant to 42 U.S.C. § 1988(b). On September 25, 2009, plaintiff's counsel was ordered to show cause why an order should not be issued precluding plaintiff's counsel from collecting from plaintiff as attorney's fees the amount plaintiff would otherwise have been able to recover pursuant to § 1988(b). On October 30, 2009, plaintiff ...