Opinion
No. 84 C 10613.
September 15, 1989.
Edward Stein, Cecile Singer and Clifford Zimmerman, Singer Stein, Chicago, Ill., for plaintiff.
Sharon Baldwin, Terrence Moran, Asst. Corp. Counsel, Chicago, Ill., for defendants.
MEMORANDUM ORDER
This Court has scheduled this case, regularly assigned to the calendar of its colleague Honorable Charles Norgle, for trial as part of the Civil Task Force calendar recently established by our District Court. At the final pretrial conference held earlier this week to discuss procedural and other arrangements for trial, Assistant Corporation Counsel Sharon Baldwin tendered a previously-prepared motion in limine asking that a standard of proof higher than preponderance of the evidence should be applied by the jury in determining whether punitive damages are to be awarded in this 42 U.S.C. § 1983 ("Section 1983") lawsuit.
As chance would have it, that identical question was considered by our Court of Appeals just three weeks ago in Coulter v. Vitale, 882 F.2d 1286 (7th Cir. 1989). There an Oak Park police officer was found by the jury to have imposed seriously unreasonable and excessive force against the plaintiff while he was in police custody, therefore awarding $10,000 in compensatory and $20,000 in punitive damages. Only the punitive damages award was challenged on appeal.
After reconfirming the substantive standard that controls the award of punitive damages in Section 1983 actions ("conduct motivated by evil intent or callous indifference to the federally-protected rights of plaintiffs"), Coulter, 882 F.2d at 1289 confirmed that the issue of standard of proof was an open one:
To date, this circuit has not taken a position on the standard of proof required for punitive damages in a § 1983 case.
It adverted to an earlier dictum in Spanish Action Committee of Chicago v. City of Chicago, 766 F.2d 315, 318 n. 2 (7th Cir. 1985) as somehow casting some doubt on the use of the preponderance-of-the-evidence standard. But the ultimate result in Coulter, 882 F.2d at 1289-90 (as it had been with respect to the very different issue dealt with in Spanish Action Committee) was to find that the issue of the proper jury instruction on punitive damages was waived because it had not been properly raised at the trial-court level.
Coulter's reference to Spanish Action Committee is really puzzling. As reflected by the language from Spanish Action Committee, 766 F.2d at 318 that was quoted in Coulter, 882 F.2d at 1289, the objection to the punitive damages instruction in the earlier case was one made by plaintiff and not by defendant. And as might be expected from that fact, plaintiff's objection did not question — or even mention — the preponderance-of-the-evidence standard of proof that was contained in the instructions to the jury in that case. Instead the plaintiff there challenged (and was then held to have waived, because the same challenge had not been voiced to the District Court) the jury instruction's definition of the substantive standard for punitive damages liability: It was argued that the omission of "reckless or callous indifference" as a possible alternative to "evil motive or intent" represented a failure to follow the teaching of Smith v. Wade, 461 U.S. 30, 51, 103 S.Ct. 1625, 1637-38, 75 L.Ed.2d 632 (1983). It was in that frame of reference that the Court of Appeals said in Spanish Action Committee, 766 F.2d at 318:
Although we see some merit to SACC's [plaintiff's] arguments about the punitive damages instruction and special verdict question, and cannot recommend them for use in future cases, we do not order a new trial on punitives in this case because SACC failed to raise these objections to the instruction and special verdict question at trial.
That reluctance to recommend use of the same jury instruction for future cases thus had nothing whatever to do with the punitive damages standard of proof, which was not only not in issue in Spanish Action Committee but was not even the subject of passing mention there. Nonetheless Coulter must certainly be taken at face value in its accurate statement (just quoted in the text here) that the applicable standard of proof is an unresolved issue in this circuit.
What we are confronted with in light of Coulter is a still-open question — moreover, a question on which there is certainly room for differences of view. This Court has always been mindful of the consideration that underlies Fed.R.Civ.P. ("Rule") 51, the Rule on which the Court of Appeals relied in Coulter. As Coulter, 882 F.2d at 1289 put it:
We apply this Rule to allow trial judges the opportunity to correct any errors in charging the jury and to avoid costly and time-consuming appellate proceedings.
In this instance there can be no assurance that "errors in charging the jury" can be avoided, given the possibility that the Court of Appeals might differ with the standard this Court decides to adopt. But this Court has devised a means that will (a) minimize the risk inherent in that possibility and (b) maximize judicial economy if that possibility were to become a reality. It has concluded that under the circumstances prudence dictates the following procedure, which the parties are directed to reflect in their instructions tendered for trial:
1. In addition to the general verdict form, the jury will be provided with interrogatories requiring that it answer separately whether the substantive conduct that would be a prerequisite to any possible award of punitive damages has been proved as to each defendant (a) by a preponderance of the evidence or (b) by clear and convincing evidence.
2. Relatedly the jury will be instructed that it should not go on to consider the award of punitive damages unless it answers either or both of those interrogatories "Yes."
3. In the instruction dealing with what is meant by burden of proof, the jury will be instructed as to the definition and meaning of both "preponderance of the evidence" and "clear and convincing evidence."
4. To avoid the quite understandable jurors' confusion about just what's going on, this Court sees no reason why they should not be told as part of the instructions that the law is not yet settled on the standard of proof for purposes of awarding punitive damages.
This Court rejects the position asserted in defendants' in limine memorandum that proof beyond a reasonable doubt should be considered as an appropriate standard. Nothing in Coulter (or of course Spanish Action Committee) or common sense calls for importing that extraordinary burden — reserved for criminal convictions — into this or any other lawsuit for civil damages. In that respect defendants' memorandum misleadingly suggests that Professor Wheeler recommends such a standard in his The Constitutional Case for Reforming Punitive Damages Procedures, 69 U.Va.L.Rev. 269, 296-98 (1983). He does not — instead he is an advocate of a clear-and-convincing requirement. Only Colorado has gone to the extreme beyond-a-reasonable-doubt position, and that by legislative rather than judicial action. Of course, if and when the Supreme Court or our Court of Appeals might find the imposition of punitive damages presents an Eighth Amendment problem, the entire burden-of-proof issue (if not rendered entirely moot) might have to be revisited.
Once liability for punitive damages is established as to any defendant (that is, if the jury does not rule in favor of that defendant as to liability or if, having ruled in favor of plaintiff, it does not answer "No" to both interrogatories referred to in the text here as to that defendant), there should be no difference in the measure of those damages based on what level of proof was required to find liability to begin with. Accordingly only a single space will be provided as to each defendant for the entry of such punitive damages award as the jury may determine.
This procedure will assure that the open burden-of-proof question will have to be confronted by this Court (and hence the Court of Appeals, if necessary) in only one possible circumstance: the jury's finding that the requisite conduct has been proved by a preponderance but not by clear and convincing evidence. Every other permutation will simply moot the issue. And given what would seem to be the comparative improbability of a "Yes" answer to the preponderance interrogatory and a "No" answer to the clear-and-convincing interrogatory, this procedure will most likely foster the Rule 51 purpose of "avoid[ing] costly and time-consuming appellate proceedings," advancing the important interest of "judicial economy" ( Coulter, 882 F.2d at 1289). Finally, if the unlikely does come about — if the jury does give different answers to the two interrogatories and thus awards damages to plaintiff, the record will be such that an appeal will end the matter no matter which way the Court of Appeals rules on the burden of proof, avoiding any potential for a remand and retrial.