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James Edward Payne v. Officer Brandon Jones

October 3, 2012


The opinion of the court was delivered by: Leval, Circuit Judge:

Argued: December 14, 2010

Amended: February 15, 2013

Before: JACOBS, Chief Judge, McLAUGHLIN and LEVAL, Circuit Judges.

16 Defendant Officer Brandon Jones appeals from a judgment of the United States District 17 Court for the Northern District of New York (Hurd, J.), entered pursuant to a jury verdict, 18 awarding compensatory and punitive damages to Plaintiff James Edward Payne on claims of 19 excessive force and battery against the defendant police officer. Defendant Jones challenges the 1 1 district court's denial of a continuance after a medical emergency prevented him from attending 2 the first three days of the five-day trial. He also contends that the $300,000 punitive damages 3 award is excessive. The Court of Appeals (Leval, J.) concludes that the district court did not 4 exceed its discretion in denying the continuance, but concludes that the punitive damages award 5 is excessive. Accordingly, the punitive damages award is VACATED, and the case is 6 REMANDED for a new trial on punitive damages, unless Plaintiff agrees to accept a reduced 7 punitive damages award totaling $100,000.

17 Defendant Brandon Jones, a former officer in the Utica Police Department, appeals from 18 the judgment of the United States District Court for the Northern District of New York (Hurd, 19 J.), entered pursuant to a jury verdict, awarding compensatory and punitive damages to Plaintiff 20 James Edward Payne on his claims against Jones of excessive force and battery. Jones contends 21 that the district court erred in denying a continuance to accommodate his inability to attend the 22 first three days of the five-day trial due to a medical emergency. Jones also argues that the 23 $300,000 punitive damages award is excessive.

24 We conclude that the district court did not exceed its discretion in refusing to grant a 25 continuance because the court's decision was neither arbitrary nor prejudicial to Jones's defense. 26 On the other hand, we agree with Jones that the punitive damages award of $300,000 is 27 excessive, and we conclude that a reduced award of $100,000 would more accurately reflect the 2 1 severity of Jones's misconduct. We therefore remand for a new trial on punitive damages, unless 2 Payne agrees to remit $200,000 and accept a punitive damages award totaling $100,000.*fn1


4 We view the facts in the light most favorable to Payne, who was the prevailing party at 5 the jury trial below. See Jacques v. DiMarzio, Inc., 386 F.3d 192, 195 (2d Cir. 2004). Payne is a 6 decorated Vietnam War veteran who suffers from severe post-traumatic stress disorder as a result 7 of his military service. In the early morning hours of September 11, 2007, Payne was taken by 8 his wife and son to the emergency room at Faxton-St. Luke's Healthcare hospital after 9 accidentally cutting his thumb. Payne was combative and disoriented when he arrived at the 10 emergency room.

11 Because of Payne's combativeness, responding officers Brandon Jones and John Abel 12 placed him under arrest pursuant to N.Y. Mental Hygiene Law § 9.41, which authorizes the 13 arrest of a person who appears to be mentally ill and acts in a manner likely to result in serious 14 harm to himself or others. The officers called for an ambulance to transport Payne to St. 15 Elizabeth Medical Center, the nearby hospital assigned to receive people arrested under § 9.41. 16 While a paramedic was examining Payne, Jones slapped the side of Payne's head. After a 17 struggle in which Payne resisted the officers' efforts to handcuff him and place him on a gurney, 18 Payne was loaded into the ambulance and taken to St. Elizabeth. Jones followed the ambulance 19 in his squad car.

3 1 At St. Elizabeth, Payne resisted Jones's efforts to move him from the ambulance gurney 2 into an individual room in the emergency room's mental health unit. Jones wrapped Payne in a 3 bear hug and pushed him into the room. As Jones was placing Payne on the bed, he noticed 4 Payne's Marine Corps tattoos and said "Marines are pussies." In response, Payne kicked Jones 5 in the groin area. Jones reacted by punching Payne in the face and neck seven to ten times and 6 kneeing him in the back several times. Payne, who was still handcuffed, defended himself by 7 putting his hands up to cover his face and rolling on the bed to turn his back toward Jones. A 8 nurse rushed forward and grabbed Jones, who then stopped punching Payne. The attack lasted 9 30 seconds or less. A doctor examined Payne and found that his face was bloody and swollen, 10 and that his upper back was reddened. Payne later testified at trial that the beating aggravated 11 his existing back pain and his post traumatic stress disorder.

There was no evidence of any other 12 injury. 13 The doctor reported Jones to the Utica Police Department, which conducted an 14 investigation into the attack. The Department's Professional Standards Unit found that Jones 15 had committed an egregious assault on Payne and had lied about the incident to police 16 investigators. Ultimately, Jones was terminated.

17 On February 7, 2008, Payne brought a civil action in the United States District Court for 18 the Northern District of New York against Jones, the City of Utica, Abel, and the chief of the 19 Utica Police Department. Payne alleged under 42 U.S.C. § 1983 that Jones used excessive force 20 in violation of the Fourteenth Amendment. Payne also alleged that Jones had committed a 21 battery in violation of state law. A jury trial was scheduled to begin on September 14, 2009. 4 1 At about 5:00 a.m. on September 14, Jones checked in to St. Luke's hospital complaining 2 of bleeding and an inability to control his bowels. Jones's attorney, Michael Getnick, Esq., 3 informed the court that Jones would be kept under observation for "at least two days," and that 4 surgery was a possibility. Payne v. Jones, No. 09-5201, Joint Appendix ("JA") 66 (Aug. 16, 5 2010). Getnick asked the court to delay the trial indefinitely to "wait to see what the doctor's 6 prognosis is, and what the schedule is to see if he will be confined, and if so, for how many days 7 ." JA 67. Getnick acknowledged that, at that point, his only source of information was 8 Jones's wife, but he offered to provide a treating doctor's affidavit describing his client's 9 condition. Payne's counsel opposed a continuance, asserting that Jones would not be prejudiced 10 if the trial proceeded in his absence. The district court decided to proceed with jury selection 11 and opening statements, but it delayed the start of testimony until the next day, September 15, to 12 give Getnick an opportunity to submit a medical affidavit. Getnick then asked the court to 13 inform the venire members that Jones was in the hospital. The court declined to mention the 14 hospitalization without evidence that Jones was indeed at the hospital. Instead, the court told the 15 venire members that Jones "is not here today through no fault of his own. We hope--he wanted 16 to be here, and we hope he will be . . . ." JA 69.

17 After the jury was impaneled and the opening statements were delivered, the court 18 dismissed the jury for the day. Getnick then presented the court with a doctor's affidavit, which 19 described Jones's illness and indicated that Jones might recover sufficiently to be able to attend 20 the trial by September 15 or 16 so long as he continued to improve and did not require surgery. 21 See JA 89. The district court stated that the trial would resume the following morning, 22 September 15, in the absence of further updates about Jones's status.

5 1 Before calling in the jury on the morning of September 15, the court inquired into Jones's 2 availability. Jones's attorney reported that he did not think that his client would be able to attend 3 the trial that day because "the doctors are not in agreement" about whether Jones would need 4 surgery. JA 91. Getnick continued: "So I think they will make a decision this morning. . . 5 [T]hree doctors . . . are making the decision, the surgeon, the internist, and the 6 gastroenterologist." JA 91. The court acknowledged this information and summoned the jury. 7 Payne began presenting his case. He called, among others, the doctor and the nurse who had 8 witnessed the attack at St. Elizabeth to testify.

9 The next day, September 16, the court again asked for an update on Jones before 10 summoning the jury. Jones's attorney said his client was expected to be released that afternoon 11 or evening, and would be present either September 17 or 18. He said that he was "hopeful that 12 [Jones] will be in court and ready to testify on" September 18, as long as Jones "has been 13 weaned off the medication that he is on." JA 136. The district court again decided to proceed 14 with the trial. Payne called a few more witnesses and rested. The parties and the court then 15 agreed that, in view of Jones's unavailability, Abel would put on his defense first. The court 16 explained to the jury that Abel would be presenting his defense out of order because "Mr. Jones 17 became ill Sunday evening, and it was too late to call off the trial . . . [W]e have learned that he 18 will be available either tomorrow afternoon or Friday [September 18] morning to be here and 19 testify." JA 169. The court then told the jury that, if Jones was still unable to testify on 20 September 18, Jones's attorney would be given permission to read the entire transcript of Jones's 21 pretrial deposition. 6

1 Jones was present at the trial the following day, September 17. The court introduced him 2 to the jury members, reminding them that, "as I told you yesterday afternoon, Mr. Jones was 3 somewhat ill for a couple of days, and I confirmed that he was, in fact, ill so there is no question, 4 but he has now fortunately joined us. And, Mr. Jones, would you please stand so that the jury 5 can -- okay." JA 196. That same day, Jones took the stand to testify in his own defense. The 6 court prohibited Getnick from asking about the nature and extent of Jones's illness, explaining 7 that "the jury has been advised that he was ill the last couple of days and confirmed. We don't 8 need to get into any details . . . . It is irrelevant." JA 208. Getnick then asked that Jones be 9 allowed to say that he had been in the hospital, but the court denied this request on the ground 10 that mentioning the hospital might cause the jury to feel sympathy for Jones and unfairly 11 prejudice Payne. After summoning the jury, the district court explained: "Members of the jury, 12 the next witness will be the defendant, Brandon Jones. I want to emphasize for you that the last 13 couple of days I have confirmed that he was ill, and he wanted to attend this trial. He was unable 14 to be here because of his physical condition for the last two or three days. . . . I am instructing 15 you that you should not in any way hold it against him because he was not here for the first 16 couple of days of trial." JA 209.

17 Witness testimony concluded on Friday, September 18, and the court charged the jury. 18 On September 21, the jury returned a verdict finding that Jones had used excessive force in 19 violation of the Fourteenth Amendment and had committed battery in violation of state law. The 20 jury awarded Payne $60,000 in compensatory damages and found that he was entitled to punitive 21 damages. Abel was found not liable.

1 The court reconvened the jury on September 24 to determine the amount of punitive 2 damages. Stephen Dolan, a prisoner at Oneida County Jail, testified that Jones had used 3 excessive force against him in 2004. Dolan stated that he had been ejected from a restaurant and 4 was sitting in the lobby waiting for a bus when Jones and another officer approached him and 5 asked to see identification. Dolan complied and Jones then began to pat him down. After Dolan 6 protested, Jones struck him in the face and knocked him to the ground, causing injuries that 7 required four stitches. Dolan was then placed under arrest for disorderly conduct and resisting 8 arrest. Two police officers called by Jones disputed Dolan's version of events. They testified 9 that Dolan had resisted arrest and that Jones had used appropriate force to subdue him. The jury 10 returned a verdict awarding Payne $300,000 in punitive damages.

11 Jones moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 12 50(b), or, in the alternative, for a new trial pursuant to Rule 59. JA 308. Jones contended that 13 the court had erred in denying his request for a continuance, which resulted in him missing three 14 of the five days of trial. The court denied the motion, stating that it found no prejudice to Jones. 15 The court also noted that witnesses scheduled to testify for Payne, including a doctor and a 16 nurse, "would have been difficult to reschedule." JA 309. 17 Jones also argued that the jury's awards of compensatory and punitive damages were 18 excessive and should be set aside. The court, however, found that the awards were within 19 permissible bounds because the beating was "severe," the victim was defenseless and mentally 20 ill, and the assailant was a police officer who had used excessive force in the past. JA 309. With 21 respect to the punitive damages award, the court added that "the five to one ratio of punitive to 22 compensatory damages is reasonable." JA 309.


2 I. Denial of the Continuance

3 A party's demand for an adjournment of a civil trial until the party can make a personal 4 appearance "is entrusted to the sound discretion of the trial judge." Davis v. United Fruit Co., 5 402 F.2d 328, 330 (2d Cir. 1968); see also United States v. Cusack, 229 F.3d 344, 349 (2d Cir. 6 2000) (per curiam) ("A district court has broad discretion to grant or deny a motion for a 7 continuance."). "This Court will affirm orders denying continuances unless there is a showing 8 both of arbitrariness and of prejudice to the defendant." Farias v. Instructional Sys., Inc., 259 9 F.3d 91, 100 (2d Cir. 2001). Because we find neither arbitrariness nor prejudice, we reject 10 Jones's claim of entitlement to a retrial based on the court's refusal to grant him an adjournment 11 of trial.

12 Jones has made no persuasive showing that he suffered any significant prejudice. As an 13 initial matter, we note that the absence of a party from part or all of a civil trial is not per se 14 prejudicial. See, e.g., Lamb v. Globe Seaways, Inc., 516 F.2d 1352, 1353 (2d Cir. 1975) ("This 15 Circuit has consistently upheld the practice of denying trial continuances in cases in which a 16 party or a witness was absent from the trial."); United Fruit, 402 F.2d at 330 (where the absent 17 plaintiff's deposition was used by his counsel in place of his live testimony, court rejected 18 plaintiff's claim that "his case was not presented 'in its best light' because of the court's refusal 19 to grant a continuance until [he] could make a personal appearance at his trial"). 20 In Morrissey v. National Maritime Union of America, 544 F.2d 19 (2d Cir. 1976) 21 (Friendly, J.), one of the defendants in a civil lawsuit fell seriously ill a few days before the jury 22 trial. See id. at 31. The district court denied his motion for a continuance, and he ultimately 9 1 missed the entire trial. See id. Given the defendant's absence, the court allowed the defendant's 2 pretrial deposition, which had been taken by the plaintiff, to be read in its entirety. See id. 3 Although claiming prejudice, the defendant failed to identify anything he would have testified to 4 that was not included in the deposition testimony that was read to the jury. Noting that the 5 "deposition seem[ed] to have covered the very topics on which [the defendant's] live testimony 6 presumably would have been most helpful to the defense," id. at 32, we concluded the defendant 7 had failed to establish any prejudice.

8 Jones, unlike the defendant in Morrissey, was present for two of the five days of trial and 9 took the stand in his own defense. He was able to provide all his material testimony to the jury 10 in person.*fn2 He makes no contention that his absence during the early days of trial in any way 11 impaired his ability to give testimony that would have aided his defense.*fn3 12 Jones contends he was prejudiced because the jurors must have formed unfavorable "first 13 impression[s]" of him from seeing his "empty chair" for three days, and that those negative 14 impressions "ultimately resulted in a finding of liability and a punitive damages award." Def. 15 Jones Br. at 24-25, 31. He asserts that the district court then exacerbated this prejudice by 16 refusing to tell the jury that he was hospitalized and describing him instead as "somewhat ill," 17 which may have raised doubts in the jurors' minds about the legitimacy of his absence.

1 We disagree. The court protected against any negative impressions that the jurors might 2 have formed by telling them several times that Jones was absent involuntarily due to illness. See 3 JA 69 (noting at the start of jury selection that Jones could not attend "through no fault of his 4 own"); 169 (explaining that Jones had fallen "ill"); 196 (same); 209 (same, and specifically 5 instructing the jury not to hold Jones's absence against him). We find no error in the court's 6 decision to omit details of Jones's illness and to bar him from testifying about the nature of his 7 illness. As the court observed, such details could evoke ...

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