Opinion
Nos. 00-1840, 00-1996.
March 29, 2002.
On Appeal from the United States District Court for the District of Massachusetts; [Hon. Rya W. Zobel, U.S. District Judge].
Before Torruella, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge.
Thomas E. Sweeney, City Solicitor, with whom Christine P. O'Connor, Assistant City Solicitor, City of Lowell Law Department, was on brief for appellant.
Daniel S. Sharp, with whom Elaine Whitfield Sharp and Whitfield Sharp Sharp, were on brief for appellee.
This case requires us to apply plain error review to an award of punitive damages against the City of Lowell pursuant to 42 U.S.C. § 1983. Under City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), punitive damages are not available in § 1983 actions against a municipality.
I.
Appellee Craig Chestnut brought this § 1983 action against the City of Lowell (City) and two of its police officers, Stephen Ciavola and Steven Coyle, alleging inter alia that (1) Ciavola used excessive force against him; (2) Coyle, after having taken Chestnut into police custody, failed to protect him; and (3) the City improperly hired and retained Ciavola — who had an extensive criminal record, including two convictions for assault and battery — as a police officer. Upon the conclusion of a six-day trial, the jury awarded Chestnut $750,000 in damages: $500,000 in punitive damages against the City, $40,000 in punitive damages against Ciavola, and $210,000 in compensatory damages against both of those defendants. The City moved for a new trial (or alternatively to strike the punitive damages assessed against it) on grounds that punitive damages against a municipality are unavailable under § 1983. The district court denied this post-trial motion because of the City's repeated failure to raise this defense prior to the submission of the case to the jury. We affirm.
The jury did not find Coyle liable on either count.
II.
Based upon the evidence introduced at trial, the jury could have found the following facts. On the evening of February 7, 1997, Chestnut and his wife went to The Usual, a bar and lounge in Lowell, Massachusetts. Coyle and Ciavola were also present in the crowded lounge when a fight began near Chestnut and his wife. After a man pushing through the crowd knocked Chestnut's wife down, Chestnut verbally accosted him. As a result, the man punched Chestnut in the nose, prompting a return swing from Chestnut. Soon thereafter, Coyle arrested and handcuffed Chestnut and escorted him out of the bar. Once outside the bar, Ciavola struck Chestnut in the face, knocking him to the ground, and kicked him, still handcuffed, in the face. As a result of Ciavola's violent conduct, Chestnut required fourteen stitches around his right eye, which was damaged permanently. This eye injury has impaired Chestnut's long-range depth perception and precluded him from earning a living as a crane operator.
Ciavola had committed several assaults and batteries and a litany of other crimes (including shoplifting and being a minor in possession of alcohol) before the City hired him as a police officer. Moreover, at the time the City was conducting its pre-hiring background investigation of Ciavola, an active warrant was outstanding for Ciavola's arrest for failure to appear in court for violating his probation. Notwithstanding this extensive criminal history, the City hired Ciavola as a police officer.
As the trial drew to a close on May 22, 2000, the district court held a conference with the attorneys to discuss jury instructions and the verdict form, which included a question on punitive damages. The court raised with counsel the appropriateness of a punitive damages award against a city pursuant to § 1983. Chestnut's attorney said such an award was appropriate. Counsel for the City did not respond to the judge's inquiry, nor did it take issue with Chestnut's response.
During his closing argument later that day, Chestnut's counsel called the jury's attention to the final question on the verdict form regarding punitive damages. He vehemently urged the jurors to impose a sizable punitive damages award against the City, large enough to attract the attention of city officials, thereby prompting meaningful change in the City's policy on the hiring of police officers. The City's trial counsel did not object to this argument.
The district court then charged the jury on the § 1983 counts as well as state law negligence claims as to each defendant. It also gave an instruction, without objection, that authorized an award of punitive damages under § 1983 against each defendant, including the City. The court explained to the jury that punitive damages are "not to compensate the plaintiff but to punish the defendant" and should be considered only as to those defendants who are found to have "violated Mr. Chestnut's constitutional rights." The verdict form, distributed to the jury without objection, provided a blank space for punitive damages to be assessed against the City should it be found liable under § 1983.
The next day, May 23, 2000, the jury returned verdicts for Chestnut on both the negligence and § 1983 counts against Ciavola and the City of Lowell. As noted, the jury awarded Chestnut a total of $750,000 in damages: $500,000 in § 1983 punitive damages against the City of Lowell, $40,000 in § 1983 punitive damages against Ciavola, and $210,000 in compensatory damages against both defendants. The district court entered judgment accordingly, without any objection from the City.
The court made it clear to the jury that it could award punitive damages against a particular defendant only if that defendant was found liable under § 1983 (rather than for negligence).
Finally aware of its large oversight, the City filed on May 25, 2000, a motion for a new trial or, in the alternative, a motion to strike the $500,000 award of punitive damages on the ground that, under City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), punitive damages are not available in § 1983 actions against a municipality. At a motion hearing on July 12, 2000, the district court, ruling from the bench, denied the City's post-trial motion. In doing so, it recognized that the punitive damages award against the City of Lowell was indeed error in light of City of Newport. Nevertheless, the court denied the City's motion because of its failure to pose a timely objection to a possible award of punitive damages:
On June 5, 2000, the City filed an additional motion for a new trial on the ground of inconsistent verdicts. That motion — denied by the district court at the July 12 hearing — is not at issue in this appeal.
While it was certainly an error to charge the jury on punitive damages, I do believe that the matter was waived by the defendant's failure to bring it to my attention initially during the pre-trial conference, when we discussed damages. Although, I must say I'm embarrassed to see that I did not include the issue of damages in the pre-trial order. It was discussed. . . . [T]he City was present through its counsel. And it was waived by the City's failure to bring it to my attention in connection with the questions which were given to counsel before the charge conference. It was waived when it was not raised after the charge conference when I outlined what I intended to tell the jury. And it was waived, yet again, after I did charge the jury on the issue and the jury returned — that is, after I charged the jury and before the jury retired to deliberate. And it was waived the last time when the jury returned with the verdict that included punitive damages and it was not then brought to my attention until some months after that or some weeks after that. So for all of these reasons, I find that the issue was waived under Rule 51 and the motion is therefore denied.
The City now appeals, asking that we strike the punitive damages award entered against it.
III.
The parties do not dispute that the $500,000 punitive damages award is improper under City of Newport, 453 U.S. at 271, in which the Supreme Court held that municipalities are immune from punitive damages in § 1983 actions. Instead, the dispute focuses on the City's contention that this error cannot survive plain error review.
A. Standard of Review
Rule 51 of the Federal Rules of Civil Procedure provides in pertinent part that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." This rule applies to the form of the verdict, as well as the jury instructions. See Wilson v. Maritime Overseas Corp., 150 F.3d 1, 6 (1st Cir. 1998). In keeping with the "uncompromising language" of Rule 51, City of Newport, 453 U.S. at 255, we have rigorously enforced the rule that objections or requests for jury instructions not made in compliance with Rule 51 generally will not provide grounds for reversal. See Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 940 (1st Cir. 1995) (citing Roto-Lith, Ltd. v. F.P. Bartlett Co., 297 F.2d 497, 500 (1st Cir. 1962)).
Litigants in compliance with the dictates of Rule 51 may avail themselves of review under Fed.R.Civ.P. 61 in moving for a new trial or to set aside a verdict. Rule 61 provides in relevant part:
No error . . . in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
We have held, however, that a party who does not assert a timely objection pursuant to Rule 51 "does not have the benefit of review under Rule 61, either before the trial court (on a post-trial motion) or on appeal." Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 940 (1st Cir. 1995).
The only exception to this rigorous enforcement involves the plain error doctrine. Smith v. KMart Corp., 177 F.3d 19, 28-29 (1st Cir. 1999). Relying upon the Supreme Court's decision in United States v. Olano, 507 U.S. 725, 732-36 (1993), we have held that reversal under the plain error standard requires that (1) there be error; (2) the error was "plain" (i.e. obvious and clear under current law); (3) the error affected substantial rights; and (4) the error threatened a miscarriage of justice. Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 15 (1st Cir. 1999); Smith, 177 F.3d at 26 (same). Olano was a criminal case. We apply its test for plain error "even more stringently" in civil cases. Danco, 178 F.3d at 15. In that vein, we have held that Rule 51's strict mandate may be overlooked "only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice" or where "the error seriously affected the fairness, integrity or public reputation of judicial proceedings." Scarfo, 54 F.3d at 940 (citations and internal quotation marks omitted). We reserve reversal under the plain error standard "for the most egregious circumstances." Negron v. Caleb Brett U.S.A., Inc., 212 F.3d 666, 672 (1st Cir. 2000) (internal quotation marks omitted); Toscano v. Chandris, 934 F.2d 383, 385 (1st Cir. 1991) ("The plain error standard, high in any event, is near its zenith in the Rule 51 milieu."(citations omitted)).
Accord Elgabri v. Lekas, 964 F.2d 1255, 1259 (1st Cir. 1992) ("In the absence of compliance with the dictates of Rule 51, we review for plain error. However, the plain error rule should be applied sparingly and only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice.") (citations and internal quotation marks omitted); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 568 (1st Cir. 1989) ("If there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where the error has seriously affected the fairness, integrity or public reputation of judicial proceedings.") (quoting 9C Wright Miller, Federal Practice Procedure, § 2558, at 675 (1971)). See also Lash v. Cutts, 943 F.2d 147, 152 (1st Cir. 1991); Smith v. Massachusetts Inst. of Technology, 877 F.2d 1106, 1110 (1st Cir. 1989).
Chestnut argues that we are precluded from reviewing for even plain error because the trial court used the word "waiver" in denying the City's request for post-trial relief. In making this argument, he relies on Olano, 507 U.S. at 733-34, in which the Supreme Court elaborated on the concept of waiver:
Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake. Mere forfeiture, as opposed to waiver, does not extinguish an error under [Fed.R.Crim.P.] 52(b). . . . If a legal rule was violated during the district court proceedings, and if the defendant did not waive the rule, then there has been an "error" within the meaning of Rule 52(b) despite the absence of a timely objection.
(citations and internal quotation marks omitted).
Although we have on prior occasions suggested that the Olano distinction between waiver and forfeiture may apply in the civil context, see, e.g., Danco, 178 F.3d at 15 (recognizing possibility that litigants' affirmative consent to jury charge could constitute waiver not subject to plain error review), we have never extended the concept of waiver, as that term was used in Olano, to a civil case. See, e.g., Scarfo, 54 F.3d at 941 (declining to consider whether Olano waiver could be extended to the civil context, where no plain error found). Nor does this case require us to do so. The record illustrates clearly that the district court did not find waiver in the Olano sense.
As noted, a finding of Olano waiver would extinguish the error for the purpose of any review. See Olano, 507 U.S. at 733-34. Yet, at the post-trial hearing on the City's motion for relief from the punitive damages award, the court said that "the question is whether this was plain error such that it cannot be waived," and that "[t]he question is whether this was plain error, such that [this court], having committed plain error, need[s] to ignore the waiver."
These statements by the district court do not refer to "waiver" in the Olano sense of precluding any review of the error. Instead, the district court uses waiver to refer to the failure to make a timely objection, leaving only plain error review. Although we are moving away from that usage of the word "waiver" in favor of the Olano usage (the relinquishment of a known right, precluding review), our steps have been uncertain. See, e.g., Davis v. Rennie, 264 F.3d 86, 100-01 (1st Cir. 2001) (indicating that party's failure to object to omission of "deliberate indifference" instruction at post-charge conference constituted "waiver" of that objection, but still engaging in plain error review). Moreover, the association of "waiver" with "plain error" review is deeply entrenched in our precedents and others. Sexton v. Gulf Oil Corp., 809 F.2d 167, 168-69 (1st Cir. 1987) (finding "no basis for disregarding the waiver" because no plain error found to exist). See also Barnett v. Housing Auth. of the City of Atlanta, 707 F.2d 1571, 1580-81 n. 18 (11th Cir. 1983), overruled on other grounds, McKinney v. Pate, 20 F.3d 1550, 1558-59 (11th Cir. 1994); Black v. Stephens, 662 F.2d 181, 184 n. 1 (3d Cir. 1981) ("Failure to [comply with Rule 51] constitutes a waiver of any error in the instructions (except plain error. . .)"). The district court can hardly be faulted for using the word waiver in this more familiar sense. Most importantly for this case, we find nothing in the record to suggest that the City intentionally relinquished or abandoned its "known right" to object to an award of punitive damages. Olano, 507 U.S. at 733. To the contrary, all of the evidence presented supports the finding that the City failed to object because it was unaware of the City of Newport defense, rather than as a tactical maneuver. We thus review under the plain error standard.
B. Application of the Plain Error Standard
It appears that we have never reversed a civil case on plain error grounds under Rule 51. See Davis, 264 F.3d at 100-01; Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir. 1988). This case does not require a different outcome, even though allowing the jury to award § 1983 punitive damages against the City was an obvious error affecting the City's financial interests. To vacate the jury award because of plain error, we must also conclude that the punitive damages award was a "miscarriage of justice." Danco, 178 F.3d at 15; Smith, 177 F.3d at 26. We cannot draw that conclusion.
First, only because the ground of appeal requires us to do so, we must emphasize the City's role in fostering the error on punitive damages. Chestnut made his intention to seek punitive damages explicit in his complaint and then in two subsequent amended complaints. The City never pled an affirmative defense in its answer to punitive damages under § 1983 and did not raise its defense to punitive damages at the pretrial conference.
Prior to closing arguments, the district court held a charge conference with counsel where it specifically inquired about the availability of punitive damages against the City. Again, the City did not raise the immunity defense. Cf. Danco, 178 F.3d at 15 (deeming it relevant to plain error inquiry that legal matter at issue was "specifically discussed" before lower court). After the charge conference, the court took a lunch break before closing arguments, thus providing counsel with additional opportunity to review the jury charge and do the simple legal research.
In closing argument, Chestnut invited the jury to award punitive damages against the City. The City did not object. The court furnished counsel with the jury verdict form, which explicitly provided for punitive damages against the City. The City did not object to the form or otherwise raise any defense to punitive damages. The jury charge specifically included an instruction that authorized the jury to consider awarding punitive damages against the City. Jury deliberations did not begin until the next day, giving the City more time to examine the charge and verdict form and do some legal research. Again, the City failed to raise an objection to punitive damages. Instead, the City raised its immunity defense for the first time in a post-trial motion, after the district court had given it every procedural opportunity to make a timely objection to the availability of punitive damages. The invocation of a "clear miscarriage of justice" has little resonance when the invoking party bears so much responsibility for the challenged outcome.
Citing the injustice of an award of punitive damages against a municipality, the City argues that such an award punishes innocent taxpayers rather than the wrongdoer and therefore does not deter future conduct. See City of Newport, 453 U.S. at 267. While we are aware of the adverse effect that a punitive damages award may have on innocent taxpayers, this is an argument without any limiting principle. The innocent taxpayer will always be the victim in a case where a failure by the municipality's counsel to pose a timely and available objection at trial leads to a large damages award against the municipality. Viewed clearly, the innocent-taxpayer argument raised by the City and accepted by the dissent is an argument for a local-government exception to the plain error rule. It is not a "peculiar circumstance[ ]" to warrant noticing the error "to prevent a clear miscarriage of justice." Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir. 1966).
Similarly, the City's policy argument that the punitive damages award here would have no deterrent effect on the City police department is simply a restatement of one of the reasons cited by the Supreme Court in City of Newport for proscribing generally an award of punitive damages against a municipality pursuant to § 1983. See 453 U.S. at 268 ("[I]t is far from clear that municipal officials . . . would be deterred from wrongdoing by the knowledge that large punitive awards could be assessed based upon the wealth of their municipality."). That general point is not at issue here. Instead, the miscarriage-of-justice analysis must be grounded in the specifics of this case.
Further, "it counts heavily against finding plain error that the party on the other side would be unfairly prejudiced." Danco, 178 F.3d at 15. In seeking relief on appeal, the City requests that the punitive damages verdict be stricken, thus limiting the damages award to the compensatory damages awarded at trial. In its post-trial motion, the City moved more broadly to strike the punitive damages award or, in the alternative, for a new trial. That post-trial motion at least acknowledged the possibility that a new trial without the prospect of punitive damages might result in a different compensatory damages award. Indeed, if the City had renewed its request for a new trial on appeal, it may have been able to argue with considerable force that the prejudice to the defendant from simply striking the punitive damages award would be ameliorated by a new trial limited to the issue of damages.
Instead of taking that arguably more sensible approach, the City has opted for an all-or-nothing strategy on the assumption that the availability of punitive damages had no effect on the presentation of Chestnut's case and the amount of compensatory damages awarded by the jury. That assumption ignores the reality of how cases are presented by lawyers and considered by juries. The availability of remedies inevitably influences fundamental choices of counsel on important trial decisions, including the manner in which evidence is introduced and the degree of emphasis to place on that evidence.
The jury heard evidence that a police officer kicked Chestnut while he lay on the sidewalk handcuffed, unable to protect his face with his hands. The officer struck Chestnut's right eye, causing permanent loss of depth perception. Given such facts, it is not surprising that Chestnut placed considerable emphasis on punitive damages. For instance, in closing argument Chestnut omitted any mention of economic damages and instead gave virtually exclusive attention to punitive damages, stating that punitive damages are "meant to punish those who hurt others through reckless conduct or a reckless failure to act" and soliciting the jury to award punitive damages against the City of Lowell in an amount so large that no City Council members will be able to ignore it, that the City Manager will not be able to ignore it, and that the City of Lowell will have to change the way it hires police officers.
We obviously do not cite plaintiff's argument on punitive damages to praise it. Chestnut's counsel also failed to understand the law, thereby contributing to the error on punitive damages. However, there is no suggestion in the record that Chestnut's counsel knowingly misled the court about the availability of punitive damages against a municipality. Like counsel for the City, he apparently did not understand the law. However, we do not agree with the City that plaintiff's error on punitive damages should prevent him from arguing that he would be prejudiced if the punitive damages award is now stricken at the City's request. Chestnut should not be penalized on appeal for failing to protect the interests of the City, his adversary in litigation.
If the City had removed punitive damages from the case with a timely objection, Chestnut would have focused his evidence and his arguments exclusively on compensatory damages, including, most likely, increased emphasis on the economic loss resulting from the permanent eye injury, allegedly in the range of $880,000. The argument of the City that such a different trial would have resulted in the same compensatory damages award is simply unrealistic. We acknowledge that "[w]hether and how much [additional compensatory] damage [Chestnut] might have proven is speculative; but that is exactly why we cannot say for sure that there was no prejudice from the failure to raise the objection in timely fashion." Id. at 16.
Chestnut presented detailed evidence of the pay differential between his income as a crane operator and as a crane mechanic. In particular, he introduced expert testimony from an economist as to his past and future economic damages in various amounts ranging up to $880,000, taking into account inter alia overtime pay, wage growth, and adjustments for inflation, in various amounts. That expert prepared a report which was admitted into evidence regarding present value calculations of Chestnut's economic damages under various assumptions.
In accepting the City's "no prejudice" argument, the dissent distinguishes the prejudice identified in Danco from the prejudice here. See dissent infra n. 11. Whatever the merit of that distinction, the prejudice here would remain significant if we simply struck the punitive damages award.
Finally, there are precedents that support our unwillingness to vacate the punitive damages award. In Saldaña-Sánchez v. Lopez-Gerena, albeit in a different procedural posture, we rejected a city's attempt to raise a municipal defense to § 1983 punitive damages because it appeared to have failed to properly raise the issue before the district court. 256 F.3d 1, 12-14 (1st Cir. 2001) (refusing to affirm grant of protective order on grounds of City of Newport defense where record failed to show defendant had properly raised such defense before lower court). In addition, in Black, 662 F.2d at 184 n. 1, the Third Circuit, in affirming a § 1983 punitive damages verdict awarded against City of Allentown, barred the city from asserting a defense to § 1983 punitive damages under City of Newport, on account of its failure to raise that argument to the district court. Cf. Barnett, 707 F.2d at 1579-81 (refusing to excuse appellant's failure to object to the submission of the § 1983 punitive damages question to the jury and affirming punitive damages award against the Atlanta Housing Authority on account of that "procedural default").
But see Williams v. Butler, 746 F.2d 431, 443-44 (8th Cir. 1984) (affirming district court's decision to set aside § 1983 punitive damages award despite failure to object to punitive damages instruction at trial), on reh'g, 762 F.2d 73 (8th Cir. 1985) (en banc), vacated on other grounds sub nom. City of Little Rock v. Williams, 475 U.S. 1105 (1986), on remand, Williams v. Butler, 802 F.2d 296 (8th Cir. 1986) (en banc), vacated on other grounds sub nom. City of Little Rock v. Williams, 485 U.S. 931 (1988), on remand Williams v. Butler, 863 F.2d 1398 (8th Cir. 1988) (en banc), cert. denied, City of Little Rock v. Williams, 492 U.S. 906 (1989).
IV.
This is a difficult case. The issue of punitive damages should never have gone to the jury. The award of punitive damages against the City was clearly contrary to law. But the issue here is not whether an error was made by the court in submitting the punitive damages issue to the jury. The question is whether, pursuant to the plain error standard, there was a miscarriage of justice that requires us to vacate the punitive damages award. The answer to that question must be grounded in the specifics of this case. We find the following specifics dispositive: (1) The court gave counsel for the City every opportunity to pose an objection to the award of punitive damages prior to the jury's verdict; (2) There is no suggestion in the record that Chestnut's counsel knowingly deceived the court in arguing for the availability of punitive damages; (3) In combination with the compensatory damages awarded, the punitive damages awarded are within the scope of the compensatory damages sought by Chestnut at trial; and (4) Vacating the punitive damages award — the only relief sought by the City on appeal — would prejudice Chestnut. In addition, precedents establish that municipalities can lose the benefit of their immunity from punitive damages under § 1983 because of their conduct during litigation. That is what happened here. The punitive damages award against the City does not result in the "miscarriage of justice" required for plain error relief, Danco, 178 F.3d at 15, and thus we refuse to disturb the verdict.
Affirmed.
I write to express my disagreement with the majority's application of the plain error standard to this case. As the majority opinion correctly notes, the requirements for plain error are that there be error; that it be plain; that it affect substantial rights; and that the error threaten a "miscarriage of justice." Olano, 507 U.S. at 732-35. In applying this standard, the majority concedes that the assessment of punitive damages against the City of Lowell was a plain error that affected the City's substantial rights. Nevertheless, the majority concludes that the error is not reversible because the circumstances do not demonstrate a miscarriage of justice. I respectfully dissent.
The majority opinion cites two reasons for concluding that no miscarriage of justice has occurred: (1) the City's culpability for the punitive damages error; and (2) the prejudice to the appellee if the error were corrected. None of these justifications, however, diminishes the miscarriage of justice that occurs when a fully-compensated plaintiff receives a windfall from the wallets of blameless taxpayers who have no ability to deter similar non-feasance in the future.
First, though the City was negligent in repeatedly failing to object to this issue, the majority opinion completely disregards the effect of the judgment on the innocent taxpayer. "Indeed, punitive damages imposed on a municipality . . . are likely accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill." City of Newport, 453 U.S. at 267. It seems convoluted to impose the burdens of a punitive damages award on the same taxpayers and citizens for whose benefit the wrongdoer was being chastised. See id. Punishing innocent taxpayers for the ineptitude of the City's attorney is precisely the type of injustice and unfairness that the plain error doctrine allows us to rectify.
The majority criticizes this dissent as having "accepted" the innocent-taxpayer argument raised by the City. Indeed, I have accepted this argument because it was adopted by the Supreme Court in City of Newport, and its rationale applies no less equally to an award of punitive damages against a municipality on appeal.
Second, the majority argues that if we were to strike the punitive damages award, appellee would be prejudiced because the time he spent arguing for punitive damages at closing argument could have been spent elaborating on his compensatory damages. However, appellee introduced ample testimony at trial related to his compensatory damages. At closing argument, appellee reminded the jury of the physical pain he endured and the emotional distress he suffered. Thus, if we were to strike the punitive damages award, appellee would suffer only the negligible prejudice of not having had the opportunity to remind the jury — more than he already had — of evidence that had been previously presented at trial.
The majority opinion cites Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8 (1st Cir. 1999), as support for the proposition that appellee in this case would suffer unfair prejudice were we to strike the punitive damages award. I find that case to be inapposite for a quite conspicuous reason. In Danco, two plaintiffs, Guiliani and Danco, brought suit against Wal-Mart claiming, inter alia, discriminatory termination under section 1981. Plaintiffs relied exclusively on the discriminatory treatment that Guiliani received to make out their claim. This Court ruled, however, that since Guiliani was not a party to the employment contract between Danco and Wal-Mart, the district court erred in allowing the jury to consider the evidence of Guiliani's discriminatory treatment. We concluded, however, that there was no plain error, in part, because of the unfair prejudice that plaintiffs would suffer if we were to overturn the jury's verdict in their favor. More specifically, we found that plaintiffs would be unfairly prejudiced because they could have been allowed to have presented evidence that Danco received discriminatory treatment to make out their section 1981 claim if they had known of the error. Id. at 15-16.
Unlike the instant case, the prejudice in Danco came from the fact that plaintiffs might have been able to present evidence to prove a legally viable claim (Danco's discriminatory termination) had they known of the error. In the instant case, appellee was able to present — and the jury heard — all of the evidence he could gather on his compensatory damages. Thus, appellee's only argument for prejudice is that he was not able to remind the jury of this evidence during closing argument. This is not prejudicial in Danco's sense of not being able to present evidence on a viable claim.
Furthermore, in its charge to the jury, the district court clearly and elaborately set forth the factors to consider in calculating an award of compensatory damages. The court told the jury to consider appellee's physical pain, mental distress, lost earnings, and his diminished earning capacity. We are required to presume that the jury followed the district court's instructions, absent evidence to the contrary. See Yates v. Evatt, 500 U.S. 391, 403-04 (1991). Thus, the fact that the jury only heard a brief synopsis of appellee's compensatory damages during closing argument is not sufficient evidence from which to conclude that the jury abandoned its duty to calculate compensatory damages based on the evidence presented at trial.
In fact, the jury's finding of $210,000 in compensatory damages actually corresponds with one variation of the economic damages sought by appellee. This is conclusive proof that the jury was familiar with appellee's evidence of compensatory damages, assessed the evidence as instructed, and awarded the plaintiff an amount that corresponded to what the jury believed were his damages. Allowing a fully-compensated plaintiff to collect a windfall in punitive damages from unsuspecting taxpayers who are in no position to deter future non-feasance mars the "integrity [and] public reputation of judicial proceedings." Scarfo, 54 F.3d at 940.
The majority opinion cites several cases where procedural defaults barred reversal of punitive damages awards against municipalities. See Barnett, 707 F.2d at 1571; Black, 662 F.2d at 181; Saldaña-Sánchez, 256 F.3d at 1. I do not dispute that this general proposition is true. However, I believe that the circumstances presented by the instant appeal demonstrate plain error. Since none of the cases cited by the majority provides any guidance as to when the plain error doctrine would require the imposition of punitive damages to be reversed, I do not find the cases to be very instructive.
Moreover, any prejudice that appellee claims is a result not only of the poor legal advocacy of the City, but also of appellee's counsel. If appellee's counsel had properly performed the requisite legal research, he would not have made a claim for punitive damages against the City, since such damages are clearly prohibited under City of Newport. Although the majority finesses appellee's counsel's inadequate performance by stating that he had no duty "to protect the interests of the City, his adversary in litigation," this is beside the point. Appellee's counsel has a professional and ethical duty to not "assert or controvert an issue [in a proceeding], unless there is a basis for doing so that is not frivolous." Mass. R. Prof. C. 3.1. If appellee's counsel had engaged in the "preparation reasonably necessary for the representation," Mass. R. Prof C. 1.1, he undoubtedly would have discovered that an argument for punitive damages against a municipality is frivolous under City of Newport.
The majority seems to suggest that because Chestnut's counsel did not "knowingly deceive[ ]" the court, there has been no miscarriage of justice. I disagree. Defense counsel should have been able to rely upon the court to apply correct black letter law, regardless of the failings of the parties' attorneys.
Although, as a practical matter, courts are overburdened by their heavy caseload and often rely on counsel to inform them or refresh their memory on certain areas of the law. When one party thus misinforms the court on the law and the other party fails to object, I understand how this type of error can occur. Nevertheless, the error remains.
In the end, I believe it is a miscarriage of justice to give a fully-compensated plaintiff — facing negligible prejudice if the error were corrected — a windfall that comes from the purses of blameless taxpayers who have no ability to deter similar non-feasance in the future. I cannot emphasize enough that plaintiffs are receiving a sum of money for punitive damages to which they are not legally entitled and would not have received were it not for the negligence of the City's counsel in failing to object. I respectfully dissent.