Opinion
99 CIV. 10004 (DLC).
December 29, 2000.
Jonathan S. Abady, David H. Gans, EMERY CUTI BRINCKERHOFF ABADY PC, New York, NY. for the plaintiffs.
Michael D. Hess, Corporation Counsel of the City of New York Vivian Dole, Catherine Mirabile, Pamela Lynam Mahon, New York, NY., for the defendants.
OPINION ORDER
Defendants the City of New York (the "City") and Detective Anthony Leone ("Leone") move for (1) judgment as a matter of law, pursuant to Rule 50, Fed.R.Civ.P., (2) for a new trial pursuant to Rule 59, Fed.R.Civ.P., or (3) in the alternative, for remittitur of the damage awards. For the reasons given below, the defendants' motion for judgment as a matter of law is granted in part and denied in part. The defendants' motion for a new trial or, in the alternative, for remittitur is granted.
BACKGROUND
Plaintiff Irma Morales ("Morales") brought this action under 42 U.S.C. § 1983, alleging false arrest and excessive use of force by a police officer. She also brought analogous claims under New York State law. A jury trial was held from October 2 through 4, 2000; on October 5, 2000, the jury returned a verdict for the plaintiff on both causes of action, awarding compensatory damages of $250,000 and punitive damages of $500 on Morales' false arrest claim, and compensatory damages of $2,750,000 and punitive damages of $7000 on her excessive force claim.
At trial, Morales testified that as she was walking in the vicinity of 183rd Street and Prospect Avenue in the Bronx in the late morning of September 29, 1998, Detective Leone, wearing plain clothes, came up to her suddenly and grabbed her by the shoulders with both hands. Morales, who does not speak English and had no idea that Leone was a police officer, struggled and screamed. Leone tightened his grip on her shoulders, and then grabbed her arms, and tried to hold her legs still with his legs. Then, Detective Leone pulled her to a two-door unmarked car and, while she continued to struggle, forced her into the back seat of the car on the driver's side. Morales testified that she struggled with all of her strength, and that she "ha[s] no idea where [she] got so strong" as to resist so hard. When asked to characterize the amount of force used by Leone, Morales responded, "I was using all my force, so he used all his, the force he could as well."
When Morales' torso was inside the car, Leone handcuffed her behind her back; he then forced her legs inside. At that time, he searched Morales' purse. As Morales shouted, someone walked up to the car; Morales heard Leone tell that person he was a police officer. When Morales asked Leone if he were a police officer, however, Leone told her to "shut up."
Leone drove her a few blocks to 185th Street between Prospect and Southern Boulevard, where other people were gathered. There, Leone took her out of the car, removed her handcuffs and placed her against a wall. Another officer searched her and her purse, apparently for drugs. She was released, and refused an offer of a ride home.
Detective Leone had been working in plain clothes as part of a team of police officers on a drug "buy-and-bust" operation. His role as "ghost" was principally to shadow the undercover officer and to provide assistance if the undercover officer was in danger. Before Morales walked by, the undercover officer radioed the descriptions of at least five suspects involved in drug transactions at the time he purchased drugs in a building approximately 100 feet away from Leone. Leone did not take notes on these descriptions. Leone testified that the undercover officer described one suspect as "female Hispanic, red hair, white shirt, blue denim vest and blue jeans." The undercover officer, however, testified that he had described a white woman wearing a blue jean outfit and red shirt.
Moments later, Morales came by, walking towards Leone in the direction the undercover officer had said the suspect was walking. Morales is a light-skinned Hispanic woman, with red- blond hair. That day, she was wearing blue jeans and a blue jean vest, with a gray shirt. Finding that she met the description of one of the suspects, and seeing no other person meeting that description, Leone apprehended Morales. He testified that he grabbed her wrist, identified himself to her as a police officer, and showed her his badge. According to Leone, he then grabbed both of Morales' wrists or arms to guide her into the car. Leone testified, however, that although Morales initially resisted, she got into the car with very little resistance, having realized that she would be unable to resist him. Leone testified that he did not handcuff Morales.
Leone drove Morales approximately two blocks, to the 185th Street location where other officers on his team had gathered other suspects. At that time, the undercover officer performed a "drive-by," and indicated that while Morales "looked exactly or very similar to the description [he] had given over," she was not the suspect. Morales then was released.
While Leone and his fellow officers testified that normally the undercover officer will drive by the spot where a suspect is apprehended in order to confirm an identification, Leone transported Morales to the other location at his commanding officer's instruction, because several suspects had been apprehended and the undercover officer would be unable to reach Leone's location for a couple of minutes. Also, a crowd had gathered, no one was available to assist Leone with the crowd, and the undercover officer's identity might have been given away had he driven by that location.
Photographs taken in the days following the incident show dark bruises, principally along the outside of Morales' right arm and leg, and on the inside of her left leg. Morales went to the hospital the day after her seizure and was given Motrin for pain; she received no other treatment for her physical injuries. In the seven or eight months that followed, she was counseled about the incident by a Victims Services social worker, Graisy Pichardo, on a weekly and then biweekly basis. She stopped receiving counseling when Ms. Pichardo was given a new assignment, and other counseling services either were too costly or catered to children or adults who were more severely damaged than Morales.
STANDARDS
A. Judgment as a Matter of Law or a New Trial
A party may move for judgment as a matter of law pursuant to Rule 50(b), Fed.R.Civ.P., after having made such a motion during a trial at the close of all the evidence. Rule 50(b) states that
The defendants preserved this right as they moved for judgment as a matter of law as to all of the plaintiff's claims at the close of all the evidence. The Court reserved judgment on the motion.
[i]f, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury . . . . The movant may renew its request for judgment as a matter of law by filing a motion no later than ten days after entry of judgment. . . .
Fed.R.Civ.P. 50(b). The Second Circuit recently has discussed the standard for granting judgment as a matter of law:
In ruling on a motion for judgment as a matter of law, [a court] must . . . consider the evidence in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences from the evidence that the jury might have drawn in that party's favor. [The court] cannot assess the weight of conflicting evidence, pass on the credibility of witnesses, or substitute [its] judgment for that of the jury. The motion may be granted only if there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise or conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against the moving party.Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000) (internal quotations and citations omitted).
The standard for granting a new trial, pursuant to Rule 59, Fed.R.Civ.P., is also well-settled. "`A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Atkins v. New York City, 143 F.3d 100, 102 (2d Cir. 1998) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997)). See also Piesco v. Koch, 12 F.3d 332, 344 (2d Cir. 1993) ("seriously erroneous" standard reaffirmed as the standard of Second Circuit). Under this standard, the Court "is free to weigh the evidence [itself] and need not view it in the light most favorable to the verdict winner." Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992) (internal quotation omitted). Even if there is substantial evidence to support the jury verdict, a new trial may be warranted. Id. Nevertheless, the Court must bear in mind that
where the resolution of the issues depended on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial. Piesco, 12 F.3d at 345 (internal quotation omitted).
B. Remittitur
Remittitur is the "process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1990) (internal quotation omitted). See also Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998). A verdict may be excessive where an identifiable error caused the jury to include a particular amount that it should have excluded, or where the award is "intrinsically excessive in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error." Id. (internal quotation omitted). In the latter case, "a jury's damage award may not be set aside as excessive unless the award is so high as to shock the judicial conscience and constitute a denial of justice." Id. (internal quotation omitted). See also Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996) (in federal question case, district court has discretion to find award excessive if it "shock[s] the judicial conscience").
New York law applies a stricter standard to a court's review of a jury's damages award, instructing a court to determine whether the award "materially deviates from what would be reasonable compensation." N.Y. Civ. Prac. Law Rules § 5501(c). See also Consorti v. Armstrong World Indus., 72 F.3d 1003, 1011 (2d Cir. 1995), vacated on other grounds, 518 U.S. 1031 (1996) (New York standard is "less deferential to the jury's verdict than the federal standard"). While a court should apply federal law in determining the excessiveness of a damages award on a federal cause of action; it should apply New York law to test damages awards on claims governed by New York law. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 430-31 (1996); Consorti, 72 F.3d at 1011-12. Here, where the plaintiff may be compensated for injuries resulting from the use of excessive force during her arrest under both federal and state causes of action, I will apply the more deferential federal standard in evaluating the jury's award.
While it is properly within the province of the jury to calculate damages, see Earl, 917 F.2d at 1328, there is "`an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law,'" Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 435 (1996) (quoting Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2d Cir. 1961)). Moreover, "[w]hile a jury has broad discretion in measuring damages, it may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket." Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993) (internal quotation omitted).
To determine whether the award is excessive, it is appropriate to examine awards in similar cases. See Lee v. Edwards, 101 F.3d 805, 812 (2d Cir. 1996); Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990). A court should determine whether the award is "within reasonable range," not just "balance the number of high and low awards and reject the verdict in the instant case if the number of lower awards is greater."Ismail, 899 F.2d at 187. Additionally, in reviewing a damage award, it is important to examine the particular facts and circumstances of other cases and compare them to the current case. Scala, 985 F.2d at 684. Finally, a district court should not limit its comparison of awards to Section 1983 claims, but should look as well to awards under comparable state laws. See Ismail, 899 F.2d at 186; Zarcone v. Perry, 572 F.2d 52, 54-55 (2d Cir. 1978). If it determines that the jury's award is excessive, "[the] district court should remit the jury's award only to the maximum amount that would be upheld by the district court as not excessive." Earl, 917 F.2d at 1330.
DISCUSSION
A. Rule 50(b)
1. Judgment as a matter of law in defendants' favor is appropriate on plaintiff's false arrest claim.
Under New York law, a false arrest is an intentional confinement without consent and without justification. Covington v. City of New York, 171 F.3d 117, 122 (2d Cir. 1999); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). "`A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law.'"Covington, 171 F.3d at 122 (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
"Under New York law, probable cause to arrest is a complete defense to a claim of false arrest." Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999).
Officers have probable cause to arrest when they "have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime."Id. (quoting Weyant, 101 F.3d at 852). A defendant bears the burden of showing probable cause. Raysor v. Port Authority, 768 F.2d 34, 40 (2d Cir. 1985).
Where a team of officers working on a case are in communication with each other, the determination of whether probable cause to arrest exists can be based on the collective knowledge of all of the officers involved. United States v. Cruz, 834 F.2d 47, 51 (2d Cir. 1987); see also Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) ("[I]t is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness."). "The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers."Weyant, 101 F.3d at 852.
Here, even if the facts are viewed in the light most favorable to the plaintiff, Leone had probable cause to arrest Morales as a matter of law. Assuming the undercover officer described a white woman wearing a blue jean outfit and a red shirt, rather than a Hispanic woman with red hair wearing a blue jean outfit and a white shirt, Leone nevertheless was reasonable in believing that Morales fit the description he had been given. Morales could easily be mistaken for a white woman; as a consequence, the only inconsistency between the undercover officer's description and Morales' appearance is that the undercover officer described his suspect as wearing a red shirt, while Morales' shirt was white. The fact that Leone recalled the undercover officer saying that the suspect had red hair suggests that he simply misheard the undercover officer, who was giving descriptions of at least five individuals over his transmitter as he walked from the building in which he had participated in the drug transactions to his car. Morales was coming towards Leone from the area in which the drug transaction had occurred, and the undercover officer had told Leone that this suspect had headed in Leone's direction. Leone spotted Morales just after the undercover officer indicated the suspect had left the spot 100 feet away. Morales was the only person Leone saw fitting the suspect's description.
The plaintiff points out that Leone did not take notes on the descriptions he received. Even if, in the circumstances he faced, Leone was negligent in failing to take notes, this failure would not support a conclusion that Leone was not reasonable in believing that Morales fit the description he had been given. There is no evidence in the record that Leone intentionally or recklessly disregarded information inconsistent with there being probable cause to arrest Morales. In light of the substantial similarity between the description the undercover officer recalls giving, and the description Leone recalls hearing, Leone had probable cause to arrest Morales.
Based on all of these circumstances, which are not in dispute, Leone was reasonable in concluding that Morales was the suspect identified by the undercover officer. Because he had reliable information from a fellow officer that this suspect had been involved in an illegal drug transaction, Leone had probable cause to arrest Morales. Cf. People v. Sharpe, 687 N.Y.S.2d 652, 652-53 (2d Dep't 1999) ("The police had reasonable suspicion to pursue, stop, and detain the defendant based upon the contents of a police dispatcher's radio broadcast providing a general description of the perpetrator and his location, the close proximity of the defendant to the site of the crime, and the short passage of time between the crime and the observation of the defendant.").
Probable cause is a complete defense to a false arrest claim, whether under Section 1983 or under New York law. Accordingly, the defendants' motion for judgment as a matter of law is granted with respect to Morales' false arrest claim.
2. Judgment as a matter of law is inappropriate on plaintiff's excessive force claim, with the exception of the award of punitive damages.
Under the Fourth Amendment,
[a] claim that excessive force was used in the course of a seizure is subject to an objective test of reasonableness under the totality of the circumstances, which requires consideration of the specific facts in each case, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of others and whether he is actively resisting arrest.Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir. 2000).
The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer.Id. at 165-66 (emphasis in original).
Here, there is a stark factual dispute regarding the manner in which Morales' arrest was effected, and the degree of force that was used. Morales testified that she resisted violently when Leone attempted to subdue her and force her into his car. Although Morales could not explain the source of the most serious bruises seen in the photographs taken later, the bruises, which are concentrated along the outside of her right arm and leg, and the inside of her left leg, are entirely consistent with her being restrained as she fought and then forced into the back of a two-door car from the driver's side and against her will.
Notably, the defense did not offer a theory that Leone simply used the minimum force necessary to get Morales into the car despite her struggling. Instead, Leone testified that he held Morales only by the wrists, and that she had ceased to struggle by the time he put her in his car. The defense took the position that Morales' bruises simply were not caused by the incident at issue.
Obviously, the jury credited Morales' version of these events over Detective Leone's, and found that Leone used force against Morales. Moreover, in the absence of any testimony from Leone regarding the need for the amount of force used, the jury found that that amount was excessive. Viewing the evidence in the light most favorable to the plaintiff, the Court cannot conclude that there was only a single verdict to be reached, that the jury's findings could only have been based on surmise and conjecture, or that the evidence in the defendants' favor was so overwhelming that no "reasonable and fair-minded" jury could have returned a verdict for the plaintiff.
The defendants argue that it was error for the Court to exclude a Memorandum containing the findings of the Civilian Complaint Review Board regarding Detective Leone's actions. The Court ruled that it expected the Memorandum and the findings therein would be admissible under Rule 803(8), Fed.R.Evid., which creates an exception to the hearsay rule for certain factual findings contained in records and reports of public agencies. The Court excluded this evidence, however, under Rule 403, Fed.R.Evid., based on its determination that the admission of the Memorandum would confuse the jury by offering conclusions regarding the factual issues the jury was to determine, and prolong the proceedings by putting into issue the details of the investigation supporting the findings, and that these risks substantially outweighed the probative value of the Memorandum. The exclusion of the Memorandum on this basis was entirely within the Court's discretion. See Paolitto v. Brown, 151 F.3d 60, 64 (2d Cir. 1998).
Punitive damages, however, are not appropriate in this case. "Punitive damages may be awarded for violations of federal law where a defendant acts with reckless or callous disregard for the plaintiff's rights, and intentionally violates federal law." Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 909 (2d Cir. 1993) (internal quotation omitted). Here, there is no evidence in the record that Leone's conduct approached the degree of reprehensibility necessary to merit punitive damages. At most, Leone was unnecessarily rough in subduing Morales as she struggled, and in forcing her into his car. Morales described no conduct by Leone in which he deliberately or willfully injured her. Accordingly, the defendants' motion for judgment as a matter of law on Morales' excessive force claim is granted with respect to the award of punitive damages, but is otherwise denied.
B. Remittitur; New Trial
The jury's damages awards on the excessive force claim, however, were grossly out of proportion to the injuries demonstrated by Morales. Accordingly, either the plaintiff shall consent to a remittitur award, or a new trial shall be held on this claim.
1. Remittitur of Compensatory Damages
Having found the defendants liable for both false arrest and use of excessive force, the jury awarded compensatory damages in the aggregate amount of $3 million. The Court then required the jury to allocate the award between damages for false arrest and damages for use of excessive force. The jury allocated $2,750,000 to the excessive force claim.
Such an award is completely unsupported by the evidence presented at trial. Morales' physical injuries were limited to deep bruises. Although Morales testified that she was in pain the day after the incident, except for being held tightly on her upper arms, she could not identify the specific sources of her bruises. Most notably, she did not describe any force being used wantonly, maliciously, or even unnecessarily. She did not remember being punched, struck, or hit with any object. For example, although the plaintiff's expert testified that one bruise was consistent with being struck by a heavy object, such as a police radio, Morales could not recall being struck by any object. Morales required no serious medical treatment; her bruises soon healed; and she sustained no permanent physical injury.
Morales' emotional suffering was much greater. Morales testified that for a long time after the incident she was afraid to go out alone; the plaintiff's expert in clinical psychology opined that Morales suffered from post-traumatic stress disorder. Morales' emotional suffering, however, was due principally to the arrest itself, rather than to the use of force during the arrest. It is clear that the emotional trauma was due to the fact that Morales was accosted by a stranger with no provocation or warning whatsoever. She was attacked by a person wearing plain clothes, and forced into an unmarked car. She testified that she feared she would be raped or killed. Because she does not speak English, she was unable to communicate with Leone, and, as she described for the jury, did not realize that Leone was a police officer until she was in his car.
Moreover, Morales was an extremely sympathetic victim. The jury heard testimony regarding her caring for her adopted and foster children, and about her having been a victim of spousal abuse. That day, she had been involved in no illegal or wrongful activity; she simply was a victim of mistaken identity. She is a small, slight woman. She went through an undeniably traumatic experience for which she bore no fault, and the jury — without any explanation from Leone for the bruising — felt her entitled to substantial compensation. Because Leone had probable cause to arrest Morales, however, compensation for her arrest is not available.
The jury obviously credited Morales' denial of wrongdoing and the undercover officer's statement that she was not the person he had seen involved in the drug transactions and disregarded, and was perhaps repulsed by, the testimony of the sergeant overseeing the buy-and-bust operation that he still believed Morales had participated in a drug transaction that day.
The plaintiff's summation asked the jury to "send a message" to the police by their verdict. While this plea was made in connection with the argument on punitive damages, the jury may not have appreciated that such an argument was only relevant to a determination of punitive damages.
The jury's $2.75 million award is far beyond any reasonable amount of compensation for the injuries Morales proved that she sustained on the excessive force claim. Other awards in this Circuit and in New York State make this abundantly clear. These cases show that damages awards for assaults that cause much greater injury than Morales sustained, or for assaults perpetrated maliciously and with greater violence, are rarely as large as the jury's award for Morales. By contrast, while perfectly analogous cases are difficult to locate, awards for simple batteries resulting in mild and non-permanent injuries tend to lead to awards substantially below $100,000.
In Bender v. City of New York, 78 F.3d 787 (2d Cir. 1996), plaintiff brought claims for false arrest, malicious prosecution, battery, and intentional infliction of emotional distress in connection with an arrest and prosecution. On her battery claim, the jury found one police officer liable for battery, and awarded compensatory damages of $10,000 for that claim. There, the plaintiff's only physical injury was a blow to the mouth that left no cut or bruise, much less permanent injury. Other injury related to the emotional trauma of the arrest and prosecution. Id. at 792. The defendants did not challenge the battery award in their appeal. Id. at 795.
In Blisset v. Coughlin, 66 F.3d 531 (2d Cir. 1995), the jury awarded $75,000 in damages to a prisoner plaintiff alleging use of excessive force by guards. There, the defendants had struck the plaintiff repeatedly with their hands and with a baton, some of which blows drew blood; handcuffed the plaintiff so tightly as to cut off circulation to his hands; and kicked the plaintiff while he was lying on the floor handcuffed. At one point, the plaintiff lost consciousness. Id. at 534-35. The plaintiff did not present any independent evidence of permanent injury, but did describe recurring problems with his right knee and his considerable emotional distress. Id. at 536. The Second Circuit upheld the $75,000 award.
In Rodney v. City of Schenectady, 1 F.3d 1341 (2d Cir. 1993), the defendants repeatedly beat the plaintiff in the course of arresting him in his home. The plaintiff fell down a flight of stairs during the struggle. Id. at 1343. The jury awarded the plaintiff $150,000 in compensatory damages, and $20,000 in punitive damages, for his excessive force claims. Id. at 1344. These awards were not at issue on appeal.
In Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992), the Second Circuit affirmed a $216,000 compensatory damages award for use of excessive force by a police officer where the plaintiff suffered a blow to his face — likely with a flashlight or other blunt object — that fractured his cheekbones, required surgery under general anesthesia, and left the left side of his face permanently numb. Id. at 361, 366.
In Ismael v. Cohen, 899 F.2d 183 (2d Cir. 1990), the Second Circuit vacated a remittitur and reinstated an award of $650,000 in compensatory damages, and $150,000 in punitive damages, for battery, false arrest, malicious prosecution and abuse of process. Id. at 186. There, the defendant police officer had struck the plaintiff in the back of the head without warning, causing him to lose consciousness briefly, and later jammed his knee into the plaintiff's back. The plaintiff suffered two displaced vertebrae, a cracked rib, and "serious head trauma." Id. at 185. The evidence, including expert medical testimony, showed that he continued to suffer from chronic and intermittent pain in his arms, torso and head. Id. at 186.
In Fiacco v. City of Rennselaer, 783 F.2d 319 (2d Cir. 1986), a jury awarded the plaintiff $75,000 in compensatory damages for her claim of excessive force during an arrest. There, as she exited a police car while handcuffed, the plaintiff was poked so that she fell to the ground, was kicked in the thighs and arms, and dragged along the ground by her handcuffs. She broke away, but then was shoved down, kicked in the back and legs, and punched. Id. at 321. When the handcuffs were removed, they were embedded in the plaintiff's wrists, and her hands were blue. She required surgery to repair a tendon in her finger, and her arm was placed in a brace from the wrist down. She also had scratches and bruises on her face and arms. Id. at 322. The district court ordered remittitur of $50,000, reducing the award to $25,000; that order was not reviewed on appeal. Id. at 324, 332-33.
In Wheatley v. Ford, 679 F.2d 1037 (2d Cir. 1982), during the course of his arrest, the plaintiff was struck with a "slapjack"; his bare feet were stomped on; and he was cuffed in the ears. Although the plaintiff complained of slight permanent ear damage, there was evidence that the ear injury was not related to the injury. Finding that, in any event, any lasting injury was "very minor," and that "[w]hile perhaps severe, [the plaintiff's] temporary discomfort did not last for long," the Second Circuit reduced the jury's $55,000 compensatory damages award to $25,000. Id. at 1039-40.
In King v. City of New York, No. 92 Civ. 7738 (JGK), 1996 WL 737195 (S.D.N.Y. Dec. 24, 1996), one plaintiff was beaten, kicked and hit with a walkie-talkie by a police officer, and had his head forced back with a nightstick. He received bruises, black eyes, abrasions, a gash in the head, and "other multiple blunt trauma." He was given medication that evening but required no further medical attention, and suffered no permanent physical injuries. Id. at *4. The jury awarded compensatory damages of $300,000, which included compensation for 30 minutes' wrongful confinement and two months' malicious prosecution, and emotional injury from the entire incident. The Court reduced the award to $200,000.
In Hogan v. Franco, 896 F. Supp. 1313 (N.D.N.Y. 1995), the Court upheld a $200,000 award of compensatory damages where the plaintiff suffered repeated blows by a police baton causing abdominal pain, vomiting and nausea, severe bruising, abrasions and lacerations. His more serious injuries included extended nerve damage; a permanent loss of sensation in one hand; painful and possibly permanent and back injury requiring physical therapy, medication, and wearing a back brace. Id. at 1325. InMendoza v. City of Rome, 872 F. Supp. 1110 (N.D.N.Y. 1994), the Court reduced a $200,000 compensatory damages award to $62,500. Id. at 1126. There, the plaintiff suffered only minor injuries resulting from his arrest: his knee was bruised and swollen; his forehead was bruised; his hands were numb and his wrists had red marks. The injuries healed within three weeks and the plaintiff required no medical care. Id. at 1120.
In Julmis v. City of New York, 598 N.Y.S.2d 312 (2d Dept. 1993), the Court reduced compensatory awards of $2 million for past pain and suffering and $2 million for future pain and suffering by one-half. There, the plaintiff was struck three times in the face in an unprovoked assault by a police officer. Id. at 313. The Court made reference to the plaintiff's "serious injuries," but did not provide any detail. Id. at 314.
These cases indicate that even an award one-tenth as large as that awarded by the jury would be excessive in this case. Hygh and Hogan, in which courts imposed or upheld awards of approximately $200,000, involved beatings that were much more brutal, and that resulted in permanent injuries. Where there were sustained beatings although no permanent injuries, as in Blisset, Rodney, Fiacco, Wheatley and King, the awards ranged from $25,000 to $200,000. Where there was a far more limited use of force and no serious injury, as in Bender and Mendoza, the awards were $10,000 and $62,500. Here, where there is virtually no evidence of a beating, where the plaintiff suffered only bruises, and where the plaintiff's much more severe emotional trauma was due principally to a lawful arrest and therefore is not compensable, an award of $50,000 is the maximum amount of compensatory damages that would not shock the judicial conscience. Accordingly, the plaintiff must consent to remittitur of compensatory damages in the amount of $2,700,000, or consent to a new trial on her excessive force claims.
In Blisset, the jury may have found that the plaintiff suffered from recurring knee problems.
2. New Trial
Finally, as an alternative to remittitur of the compensatory damages award, should the plaintiff so choose, the Court grants a new trial on both liability for use of excessive force and damages on that claim. When presenting a prevailing party with the option of remittitur or a new trial, courts must determine whether to grant a new trial on all issues, or on a discrete issue, bearing in mind that
a partial new trial may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.In re Joint E. Dist. S. Dist. Asbestos Litig., 995 F.2d 343, 346 (2d Cir. 1993) (internal quotation omitted). As the Second Circuit has noted, where
the same jury hear[s] the liability and damage phases of the trial, [it makes] partial reversal more problematic than it would be if separate juries had been impaneled.Id. Thus, the determination of the extent of any new trial rests on the separability of the issues.
In this case, the compensatory damage award was closely linked to the evidence of liability such that it would be difficult to re-try only the damages portion of the case. The compensation to which Morales is entitled cannot be separated from a determination of what amount of force Leone was entitled to use in effecting the arrest, what amount of force actually was used, and what injuries resulted from any use of force that was excessive. Because the issue of damages is not sufficiently distinct from the issue of liability, it would be inappropriate to re-try the issue of compensatory damages alone.
CONCLUSION
For the reasons given above, it is hereby ORDERED that defendants' motion for judgment as a matter of law with regard to the plaintiff's claim of false arrest is granted.
IT IS FURTHER ORDERED that the defendants' motion for judgment as a matter of law with regard to the plaintiff's claim for use of excessive force is granted to the extent of any award of punitive damages, but is otherwise denied.
IT IS FURTHER ORDERED that plaintiff's attorney may file with the Clerk of Court on or before January 12, 2001, an acceptance of a remittitur of $2,700,000 with respect to compensatory damages on her excessive force claim.
IT IS FURTHER ORDERED that in the event plaintiff's attorney does not file an acceptance of the remittitur on or before January 12, 2001, a new trial on liability and compensatory damages for the excessive force claim will commence on a date to be set by the Court.
SO ORDERED: