The opinion of the court was delivered by: Hurley, Senior District Judge:
Presently before the Court is a motion by defendants seeking "to
decertify the class going forward now that the issue of common general
damages upon which the Court based class
certification has been resolved." (Defs.' Mem. at 1.)*fn1
Plaintiffs oppose the application, asserting that the Court
can (and should) compensate class members for damages stemming from
"garden-variety emotional distress, shame and humiliation that flow
naturally from being unlawfully strip searched," and that "these
general damages for garden-variety emotional distress, shame and
humiliation should be determined and awarded on a class-wide basis in
a single trial in this class action as soon as possible." (Pls.' Opp'n
at 5.) For the reasons that follow, defendants' application is
The background of this action is set forth in the prior decisions of this Court, familiarity with which is presumed. The Court will partially reiterate an abbreviated history in order to provide context for the Court's analysis and rulings, infra.
These consolidated actions were commenced in 1999 seeking damages due to the blanket policy of the Nassau County Correctional Center of strip searching newly admitted individuals arrested for misdemeanors or non-criminal offenses in Nassau County. Extensive pretrial motion practice ensued, including plaintiffs' numerous attempts to achieve class certification. In response thereto, defendants conceded liability. Based on that concession, this Court deleted liability from the certification analysis and denied class treatment. On appeal, the Second Circuit reversed and directed this Court "to certify a class on the issue of liability . . . and consider anew whether to certify a class as to damages as well." In re Nassau County Strip Search Cases, 461 F.3d 219, 231 (2d Cir. 2006). Accordingly, the Court certified a class as to liability and entered summary judgment on liability in favor of the class and each of its members. (Jan. 16, 2007 Order at 2.) After the Court sought input from the parties concerning damages certification, plaintiffs filed an application to certify the class as to plaintiffs' entire claims, i.e., to extend class certification to include damages.
March 27, 2008 Memorandum and Order
In a Memorandum and Order dated March 27, 2008, the Court addressed the question of whether a damages class could be certified pursuant to Rule 23(b)(3). (Mar. 27, 2008 Mem. & Order at 4.) Having previously determined that Rule 23(a)'s requirements of numerosity, commonality, typicality and adequacy had been met in this case, the Court considered whether plaintiffs sufficiently demonstrated both (1) that the damages questions of law or fact common to the members of the class predominated over any damages issues affecting only individual members; and (2) that a class action was superior to other available methods for the fair and efficient adjudication of the damages controversy. (Id.) Plaintiffs argued, and the Court agreed, that an injury to human dignity was necessarily entailed in being strip searched and thus was common to each member of the class as to its cause and the resulting general, or presumed -- as distinct from the special -- damages sustained. (Id. at 6.)
Over the objection of defendants, the Court, relying heavily by analogy on the Second Circuit's decision in Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004),*fn2 found that the issue of general damages due to the asserted injury to human dignity predominated (Mar. 27, 2008 Mem. & Order at 7-11), and concluded that where, as here, "class members were aggrieved by a single, admittedly unlawful policy [resulting in] a strong commonality between the strip search violation and the harm," there was "no reason [to believe] that a jury . . . could not determine an amount of general damages awardable to each member of the class." (Id. at 12.) That comment, however, was coupled with the caveat that "care would have to be taken to ensure that the amount awarded for general damages excludes all elements of special damages that individual class member[s] might [later] pursue." (Id. at 12-13 (emphasis added).) The Court noted, in closing, that "Plaintiffs are not asking this Court to select a particular damages model or to certify any subclasses for special damages as to do so would be 'premature.'" (Id. at 13-14 (emphasis added).)
March 16, 2009 Memorandum and Order
Subsequently, the Court held a conference in advance of the upcoming trial for general damages and, by Memorandum and Order dated March 16, 2009, addressed several issues that arose during that conference. In particular, the issue of whether the trial witnesses would be permitted to testify not only "as to the details of the strip search that he or she experienced[,] . . . but also any concomitant feelings of humiliation, embarrassment or other reaction experienced by the witness as a result of the process." (Mar. 16, 2009 Mem. & Order at 2.) The Court recognized that if trial witnesses "were permitted to testify concerning the humiliation and other effects" of the strip search that he or she individually experienced as distinct from those which may be presumed to have been inflicted on all persons so victimized, "the amount determined by the jury would be less likely to be representative of the general damage sustained by each member of the class." (Id. at 5-6.) The reason for that is, "if provided a choice, plaintiffs' counsel surely, and legitimately so, would call to the stand those plaintiffs among the 17,000 plus class members they believed to be the most severely impacted from being strip searched." (Id. at 5-6.) The Court reasoned that "excluding such specific impact evidence from this part of the proceeding" would "essentially eliminate[ ]" the "problem of a non-representative per plaintiff amount being returned by the jury." (Id. at 6.) Accordingly, each party was permitted to "call up to ten fact witnesses from the class . . . [to] testify solely concerning the details of the search without any information concerning the effect that the search had upon them" personally. (Id.)
The Court continued that "[t]his line of demarcation as to the parameters of permissible testimony will not negatively effect any individual plaintiff because to the extent such individual did sustain humiliation, embarrassment or emotional distress [beyond those presumed from being unlawfully strip searched], those items may be pursued during the special damages portion of the proceeding which will be held before another jury." (Id. at 7.) The March 16, 2009 decision concluded with the observation that the Court had "thus far only addressed general damage class certification; at the conclusion of this phase of the proceeding, the court and the parties will discuss what further damage subclasses should be certified, if any, and how the remainder of the case will be resolved." (Id. at 7 n.2.)
The Award of General Damages
The parties subsequently waived the right to a jury trial and submitted the issue of a general damages determination to the Court. A bench trial was held over eleven days, ending on December 16, 2009, with all post-trial submissions being filed by April 14, 2010. By decision dated September 22, 2010, general damages in the amount of $500 per strip search were awarded,*fn3 coupled with the observation that "the special damages sustained by class members is a subject for another day." (Sept. 22, 2010 Mem. & Order at 66.)
On October 2, 2010, a status conference was held to discuss, inter alia, "how to handle the second phase of the case, the special damages." (Tr. of Oct. 1, 2010 Status Conf. ("Tr.") at 21.) Specifically, the Court sought input from the parties regarding "whether the special damage part of the case should be bifurcated between what the attorneys call garden-variety . . . [and] some heightened type of special damage." (Id.) Plaintiffs expressed their view that for the "second phase" "there ought to be a single trial, either before a Judge or a jury, to try to fix an aggregate class award for the garden-variety emotional distress damage." (Id. at 34.) Plaintiffs contended that "[w]e have been defining special damages as those subjective feeling damages that are different from the general human dignity damages . . . And everybody in the [c]lass has those, or those can be determined on a class-wide basis for those." (Id. at 50-51.) After the status conference, the parties were directed to submit further briefing regarding, inter alia, whether a common trial for "garden-variety"*fn4 special damages may be held. (Oct. 8, 2010 Order at 1-2.) After reviewing the defendants' briefs submitted on the common special damages issue, the Court issued an Electronic Order dated January 25, 2011 stating that "Defendants have asked for leave to move to decertify now that the issue of general damages has been resolved," and set a briefing schedule for that motion. (Elec. Order, Jan. 25, 2011.)
I. The Parties' Contentions
Defendants assert that "there is no substantive justification for continuing class litigation of any remaining individual special damage claims now that the common class damages issue has been resolved." (Defs.' Mem. at 4.) Preliminarily, defendants contend that "while the Court and the parties have come to speak of a 'Phase 2' special damages proceeding as if it were a given, in its formal rulings the Court has held in abeyance the question of whether to litigate such damages in the present class action . . . Thus, it appears as if the Court would need to affirmatively certify a subclass or subclasses in order to continue the litigation, rather than need to formally decertify the class in order to bring it to a conclusion." (Id. at 3.) In any event, defendants argue that the Court should decline to certify (or decertify, as the case may be) any special damages subclasses because, as noted in this Court's previous decisions denying class certification, special damages are "too inherently individualized and variable to be tried on a class basis." (Id. at 4.)
Defendants assert that the resolution of the "sole predominant common issue" -- the common injury to human dignity -- leaves the litigation "without a sufficiently common injury to support class certification under Rule 23(b)(3)." (Id. at 1.)
In opposition, plaintiffs contend that this Court decided "to certify the damages class without limitation," and that the Second Circuit's opinion in In re Nassau County Strip Search Cases, 461 F.3d 219, 231 (2d Cir. 2006) "made no mention of bifurcating the damages class, or certifying the class for only some damages." (Pls.' Opp'n at 3.) Plaintiffs assert that the "Court's holding that class-wide damages may be determined and awarded for dignitary damages is also applicable to other general damages such as emotional distress damages." (Id. at 4.) According to plaintiffs:
While the Court has [ ] on occasion expressed the view that "special damages" may be excluded and pursued by individual plaintiffs, we continue to contend that such "special damages" do not include the garden-variety emotional distress which may be presumed to have been experienced from the unlawful strip searches in this case . . . but rather, that they refer to the more serious psychiatric injury that may be claimed by a minority of class members who, for example, may have required mental health treatment for psychological sequellae and symptoms which go beyond garden-variety emotional distress, shame and humiliation that flow naturally from being unlawfully strip searched. (Id. at 5.) Plaintiffs maintain that class members' emotional distress that was "necessarily produce[d]" by the "unlawful involuntary strip searches" performed in this case, "is compensable in general damages on a class-wide basis." (Id. at 8.)
II. The Court Does not Consider Damages for So-Called "Garden-Variety" Emotional Distress to be General Damages Plaintiffs incorporate by reference numerous prior submissions in support of their position on the present application. (See Pls.' Opp'n at 1.) Among them is plaintiffs' May 28, 2010 letter, which was submitted following a May 17, 2010 conference in order to "further amplify our views" on the following two issues: "(1) whether the Court could treat the class garden variety emotional damages within the rubric of general damages, and (2) whether garden variety emotional damages are susceptible to resolution on a class basis without selecting representative plaintiffs on a random sampling statistical basis." (Pls.' May 28, 2010 Letter at 1.) With respect to the first issue, plaintiffs agreed with defendants "that garden variety emotional distress damages actually suffered by the class should not be treated within the rubric of general damages." (Id. (emphases added).) Accordingly, plaintiffs requested that the Court "enter its general damages verdict and that we should then proceed to phase 2 to determine what additional award should be made to the class for garden-variety emotional distress damages." (Id.)
Plaintiffs, however, clarified their view that "the 'humiliation and mental suffering' component . . . is an appropriate part of the general damages verdict upon which the Court [was then] deliberating." (Id.) Relying on Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004), plaintiffs asserted that:
[E]motional damages (garden-variety or otherwise) actually suffered by an individual plaintiff is separate from general damages. But (and here is the confusing part) "humiliation and mental suffering" and other emotional damages actually suffered by the individual is different from the "humiliation and mental suffering" that may be inferred from the loss of liberty inherent in the false imprisonment itself, and it is the latter "humiliation and mental suffering" which Kerman held is a legitimate part of general damages. (Pls.' May 28, 2010 Letter at 2 (emphases in the original).) According to plaintiffs, therefore:
Garden variety emotional damages actually suffered by an individual class member forced to endure the unlawful strip search at the Nassau County Jail may not be treated within the rubric of general damages. But the humiliation and mental suffering that may be presumed to arise in a reasonable person subjected to such strip search is an integral component of general damages which may be awarded without proof. (Id. at 4 (emphases omitted).)
To the extent that plaintiffs maintain that a general damages award should include an element of "'humiliation and mental suffering' that may be inferred from the loss of liberty inherent in the false imprisonment itself" (Pls.' May 28, 2010 Letter at 2), the Court has already considered and taken into account this claim in rendering the $500 per strip search award. The above-quoted section of plaintiffs' May 28, 2010 letter suggests that they are of the impression that the damages trial dealt solely with compensating class members for the "loss of liberty" inherent in each strip search. As the Court made clear in its September 22, 2010 decision, however, such a loss of liberty, while implicated, was not the primary thrust of the wrong for which damages were awarded. Rather, the Court found that "[e]ach class member suffered the same injury to human dignity inherent in the loss of the right to determine which individual or individuals may visually inspect that member['s] naked body, particularly his or her sexual organs, and under what circumstances." (Sept. 22, 2010 Mem. & Order at 39; see also Mar. 27, 2008 Mem. & Order at 10-11 (noting class members are entitled to general damages to compensate for "serious intrusion" and "impairment of privacy" caused by unlawful strip search) (internal quotation marks omitted).) Thus, the $500 per strip search award necessarily included compensation for this form of presumed emotional distress damages. Plaintiffs cannot recover a second time for the same injury. Individuals claiming to have sustained emotional distress beyond those which have been presumed and, as such, included within the general damages award, may seek special damages but not, as plaintiffs urge, a duplicate award under a further subset of general damages. Simply put, the Court rejects the proposition that there is a meaningful distinction between plaintiffs' presumed "garden-variety" emotional distress on the one hand, and the shared emotional injuries presumed to flow from the affront to human dignity necessarily caused by being strip searched on the other. For present purposes, the concepts are essentially the same.
In urging a contrary conclusion, viz. that the scope of general damages should be enlarged to include the "garden-variety" emotional distress, shame, and humiliation that flow naturally from being unlawfully strip searched (see Pls.' Opp'n at 1, 5), plaintiffs cite the following passage of the Court's March 27, 2008 Memorandum & Order extending class certification to include general damages:
The Second Circuit has recognized, for example, that class-wide rather than individual assessments of monetary relief may sometimes be appropriate in class discrimination cases. See Robinson v. Metro-North, 267 F.3d 147, 161 n.6 (2d Cir. 2001). See also Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1138 (D.C. Cir. 1999) (holding that it was appropriate to presume that as a result of race discrimination those class members who were experienced rodmen suffered emotional distress by having to subject themselves to an unnecessary training program for up to two years before being permitted to take union entrance exam and therefore damages award was supported and appropriate). (Pls.' Opp'n at 4 (citing Mar. 27, 2008 Mem. & Order at 11-12).) Plaintiffs contend that "[b]y citing Robinson and Berger's holding that emotional distress damages could be presumed when class members were forced to endure racial discrimination, this Court effectively recognized that general damages for emotional distress could be awarded on a class-wide basis." (Id.)
The Court's citation to Robinson*fn5 and it brief parenthetical description of Berger*fn6 are not, plaintiffs' protestations to the contrary, incompatible with the Court's rejection of plaintiffs' arguments. The remainder of the passage from the March 27, 2008 Memorandum & Order, partially cited by plaintiffs, reads as follows:
Here, class members were aggrieved by a single, admittedly unlawful policy and there is a strong commonality between the strip search violation and the harm. There is no reason that a jury in this case, hearing the procedures used by Defendants for strip searches together with the testimony of a number of class members as to the circumstances of actual searches, could not determine an amount of general damages awardable to each member of the class.
Concededly, care would have to be taken to ensure that the amount awarded for general damages excludes all elements of special damages that individual class members might then pursue. But the task, albeit difficult, is doable. (Mar. 27, 2008 Mem. & Order at 12-13 (emphasis added).) The Court has always considered "special damages" to include emotional distress damages beyond those that are inseparable from the injury to human dignity, as well as more severe psychological damage, which might require expert testimony to prove.
Plaintiffs further contend that although "Defendants argue that emotional distress is a special damage, [ ] this is not correct in the context of an unconstitutional strip search." (Pls.' Opp'n at 6.) Plaintiffs cite a line of cases, purportedly in which "courts have repeatedly recognized that general damages are appropriately awarded in tort cases in which emotional distress is a foreseeable harm of the wrongful act." (Id. (collecting cases).) While, as a general proposition, that may be true, not one of the cases cited in plaintiffs' legal memorandum involves either a class action or an unconstitutional strip search, and the cases are not otherwise instructive for present purposes. (See id. at 6-7.)
III. Damages for Emotional Distress Beyond That Which is Inseparable From the Injury to Human Dignity Must be Proven by Each Individual Claiming Them and Cannot be Awarded to the Class as a Whole Defendants assert that "[t]he class should be decertified going forward now that the common general damages upon which the Court based class certification have been determined." (Defs.' Mem. at 2 (citing Fed. R. Civ. P. 23(c)(1)(C) ("An order that grants . . . class certification may be altered or amended before final judgment.")).) Plaintiffs oppose this request and contend that decertification "is contrary to the purpose the class action mechanism, which aggregates claims so that it is as a practical matter reasonable to bring these claims for which the recovery is likely to be modest." (Pls.' Opp'n at 13.)
A. Class Certification was Never Extended to the Issue of Special Damages, Including Emotional Distress Damages Beyond Those Which are ...