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Restivo v. Hessemann

United States Court of Appeals, Second Circuit.
Jan 19, 2017
846 F.3d 547 (2d Cir. 2017)


holding that experts may testify "about what minimally accepted police practices required and about his opinion that [the officer's] conduct departed from accepted police practices"

Summary of this case from Thomas v. Lambert


Docket No. 14-4662-cv August Term, 2015


John RESTIVO, Dennis Halstead, Plaintiffs-Appellees, v. Carolann HESSEMANN, as executrix of the Estate of Joseph Volpe aka Joseph Volpe, Defendant-Appellant.

ANNA BENVENUTTI HOFFMANN (Alexandra Lampert, on the brief), Neufeld Scheck & Brustin, LLP, New York, NY, for Plaintiffs-Appellees. RICHARD M. LANGONE (Peter J. Tomao, on the brief), Garden City, NY, for Defendant-Appellant.

ANNA BENVENUTTI HOFFMANN (Alexandra Lampert, on the brief), Neufeld Scheck & Brustin, LLP, New York, NY, for Plaintiffs-Appellees.

RICHARD M. LANGONE (Peter J. Tomao, on the brief), Garden City, NY, for Defendant-Appellant.

Before: POOLER, PARKER, LIVINGSTON, Circuit Judges.

Judge Livingston concurs in part and dissents in part in a separate opinion.

POOLER, Circuit Judge:

Appeal from United States District Court for the Eastern District of New York (Joanna Seybert, J .) judgment in favor of plaintiffs-appellees John Restivo and Dennis Halstead following a jury trial. Defendant-appellant Carolann Hessemann, as executrix of the Estate of Joseph Volpe, ("Volpe") challenges the district court's grant of Restivo and Halstead's motion for a new trial; several evidentiary rulings at second trial; the district court's holding that Volpe was not deprived of a fair trial because his counsel was allegedly operating under a conflict of interest; the district court's denial of Volpe's motion for remittitur and a setoff of damages; and the district court's grant of attorneys' fees to counsel for Restivo and Halstead. For the reasons that follow, we affirm the judgment of the district court.


In 1984, sixteen-year-old Theresa Fusco was raped and murdered in Nassau County. As will be described in greater detail below, then-21-year-old John Kogut confessed to the Nassau County Police, stating that he, John Restivo, and Dennis Halstead had participated in the rape of Ms. Fusco, and then murdered her. All three men were charged with the rape and murder. Restivo and Halstead were tried jointly, and in 1986, a jury found both men guilty of rape and second degree murder; they were sentenced to 33-and-one-third years to life. Kogut was tried separately, and was convicted by jury; he was sentenced to an indeterminate term of imprisonment of 37-and-one-half years to life. But in 2003, DNA testing was conducted on a slide containing cells taken from a swab of the victim's vagina after her body was found. The testing revealed the presence of DNA from two individuals: Ms. Fusco and an unknown man. The testing excluded Kogut, Halstead, and Restivo from having contributed that DNA. The DNA also did not match that of 86 other individuals known to Ms. Fusco. Based on this evidence, Halstead, Restivo, and Kogut's convictions were vacated. The State went to trial again against Kogut, primarily based on his confession, but, when he was acquitted, the State dropped the charges against Restivo and Halstead. Ultimately, Halstead and Restivo spent eighteen years in prison—two pretrial and sixteen following conviction—for these crimes. This civil suit, alleging malicious prosecution and denial of fair trial claims, among other claims, followed.

I. The Crime, Investigation, and Criminal Trial

In 1984, sixteen-year-old Theresa Fusco went missing. She was last seen on November 10, 1984 at 9:47 PM, when she clocked out of her job at Hot Skates, a roller rink, in Lynbrook, New York. A missing persons investigation began the next day, with then-Nassau County Homicide Detective Joseph Volpe acting as lead detective. Several weeks after Ms. Fusco went missing, on December 5, 1984, her body was found, naked, near the Lynbrook railroad tracks. As the medical examiner testified, the autopsy showed that she had been raped and that the cause of death was ligature strangulation. The medical examiner also determined that Ms. Fusco was most likely strangled with a rope, approximately one inch thick. On cross-examination, the medical examiner testified, based on the injuries to Ms. Fusco, that she believed that Ms. Fusco was strangled with pressure applied to the front of her neck with "rope or ligature, going from the back toward the neck, possibly crisscrossing with a lot of movement, and then both hands extending in the back of the neck." Trial Tr. at 719. She further testified that the rope "should be less than six feet, depending on how it was applied" because "both ends of the rope never touched the skin in the back," and that she would expect that there would be blood on the rope visible to the naked eye. Trial Tr. at 720-22. On redirect, she testified that, considering that thickness of the rope, it would have been easier to strangle Ms. Fusco if the rope were shorter, but clarified, "I don't know the length of the rope. I have no idea." Trial Tr. at 726.

In late January 1985, Volpe heard that a man named Harry Smyle had been making suspicious statements about the murder. After an eleven hour interrogation and being told that he was a suspect, Smyle told police that Restivo had made a suspicious statement to him about the murder. Volpe then picked up Restivo. Volpe and Robert Dempsey, another Nassau County detective, interrogated Restivo for approximately eight hours over March 5, 1985 and March 6, 1985 and allegedly physically assaulted him. Restivo then signed a statement, which stated that he heard Halstead make admissions about the Fusco murder but that did not implicate Restivo. Specifically, the statement said:

I would like to say that sometime back possibly November, December 1984, I stopped by my friend Dennis Halstead's apartment. He lives above the store on Atlantic Avenue.


When I saw him, I realized that he was also high. We were talking about 10 to 15 minutes and at this point and kind of out of the blue Dennis started to talk strange.

He started talking about a broad. Dennis said he was with a broad, a girl, and that he was either by a cemet[e]ry, in a cemet[e]ry, across from the cemet [e]ry.

He said he tried to fuck her. Then he had to fuck her up. But when he said that, he didn't tell me how he fucked her up. He then told me that he strangled her and killed her.

Appellees' Supp. App'x at 270. After Restivo was released, he contacted his attorney, Theodore Robinson, who called the homicide bureau and informed them he was representing Restivo and Halstead, and objected to the interrogation as coercive.

On March 21, 1985, police officers came to the home of John Kogut, who worked with Restivo and Halstead, and asked him to come to the police station for questioning in relation to Ms. Fusco's murder. Kogut complied; he denied knowledge of the crime, but agreed to come back on March 25. He returned on March 25, and was interrogated through the night. Kogut testified that Volpe and Dempsey screamed at him, threatened him, and told him that they had scientific evidence, witnesses, and statements demonstrating that he committed the crime. According to Kogut, Volpe stated to him, "I'm going to tell you how you did it because I already know how it happened." Appellees' Supp. App'x at 197. Volpe then told various stories, until Kogut finally gave in and agreed; Volpe wrote out a confession, which Kogut signed at approximately 9:00 AM on March 26. The written statement said:

My name is John Kogut[.] I am 21 years of age, being born on 11-29-63. I live with my girlfriend Lisa Price and her father at 161 Traymore BLVD, Island Park. I am currently employed by Frank Bertini Landscaping, 2988 Bay View Court, Oceanside, phone RO-4-7483.

I have been told by the detective that I have the right to remain silent and that any statements I make may be used against me in court. I have been told that I have the right to talk with a lawyer before answering any questions or to have the lawyer present at any time. Further, I have been advised that if I cannot afford to hire a lawyer, one will be furnished [to] me and I have the right to keep silent until I have had the chance to talk with a lawyer.

I understand my rights and make the following statement freely and voluntarily. I am willing to give this statement without talking with a lawyer or having one present.

I would like to say that sometime back in Nov 1984, about a week or two before my birthday I was with these two guys. One was John Restivo, who I worked for[,] and the other was Dennis Halstead, a guy from Lynbrook I know, who also worked for Restivo. On this night, it

was between 8:00 pm and 10 pm, I was with John Restivo and Dennis Halstead in John's van. It's a blue [F]ord step van, with a side door that opens. This door is located back from the right front passenger door. I seem to remember that we were coming down from a moving job, possibly Hempstead, and we were drinking beer and smoking pot. John was driving, Dennis was in the right front passenger seat, and I was sitting on a cushion seat right behind the passenger seat. We were coming from East Rockaway where John keeps his trucks up Ocean Ave. [A]t the intersection of Merrick Road John turned left. We were heading west on Merrick Road and the cemet[e]ry was on our right side. At this point there's a girl walking on Merrick Road by the cemet[e]ry and heading towards McDonalds. John pulls up and stops along side her. John and Dennis were saying let[']s see if she wants to party, meaning maybe smoke or have some beers. I felt that one of them knew her by the way they were talking, but I can't remember her or their exact words. When I heard this conversation, I moved up in the seat to see the girl and hear what[']s happening. Either John or Dennis invited her in, not to party, but for a ride home. I then opened the side door and I see this girl. She was about 15 or 16 years old, dark hair, medium long. She had on a blue denim dungaree jacket, I think a dark top, dark pants and white high top sneakers.

She knelt down in between Dennis and John. I was sitting behind her. Dennis, as John's driving around, says to the girl "You want to party," "forget about getting fired," "do you want to do the right thing." Do the right thing on the street means to get laid. With that she said, "stop the fucking van," let me out. Dennis then jumped out of his seat and grabbed her. The girl started screaming "leave me alone, let me out." She was fighting Dennis, but he was to[o] big for her and had a good grip on her. As I moved up to where she and Dennis were, she turned on me and smacked me in the face. With this I freaked out, I got crazy and I punched her with my left fist, hit her on the right side of her face. She falls out of Dennis'[s] grip to the floor of the van. I would like to say that I hit her with a left and a right before she fell from Dennis['s] grip. I jumped on her upper body and she was trying to throw punches and kicks. At this point Dennis started taking off her pants and underpants, and I was taking her jacket shirt and bra. I'm telling her to shut up, calm down, and I realize that Dennis had put his penis inside of her. While Dennis fucked her I held her upper body down. At this point she wasn't fighting to[o] much. By this time, I mean after Dennis fucked her, we were already in the cemet[e]ry. John had stopped the van and yelled back to me and Dennis, "let me get a piece." I looked down at her and she was almost unconscious, I mean, she was fainting. Dennis pulled his pants up and was sitting in a seat by the passenger seat, John was now fucking her while she was unconscious, and I got out the side door and I took a blanket out that was in the van. I spread it out on the ground. This blanket was quilted with a different color border. Dennis and John then carried her out of the van and laid her face up on the blanket. I remember she had some jewelry on. I recall seeing a gold colored chain with what looked like a double heart on it with a piece broken off of it. I think there were other charms on the chain but I don't remember what they looked like. I then ripped the heart and chain off and I put it in my pocket.

John was in the van pulling his pants up and putting his shoes on, and Dennis was taking the rest of her jewelry and rings off. Now she starts to regain consciousness. She was a little dazed, but she was saying "I gotta tell," "I gotta tell," and she was crying. She was still laying on the blanket with no clothes on. Dennis, John and I decided she had to be killed. We were afraid she would tell on us. She started to come to and she was getting frantic. I got on top of her, put my knees on her shoulder, and covered her mouth. My back was to John and Dennis and one of them threw me a rope. One of them said "Do what you gotta do," but first, before the rope was thrown to me Dennis, while standing over her told her, "You have to die." They both went back to the van. I took the rope, which was a hard nylon type. I wrapped it double around her neck, then I twisted it like a cork screw. I twisted it for a few minutes until her body went limp, and I felt she was dead. I rolled her body up in the quilt and I threw her over my shoulder and to the van. I threw the rope into the van and then I dropped the body into the floor of the van. I got into the van, closed the door, and John took off out of the cemet[e]ry. Dennis was sitting up front. As we were leaving the cemet[e]ry we discussed that we had to get rid of the body. While we were driving and talking, I was putting the clothing into a plastic garbage bag. In addition to her clothing, I took her pocketbook and put it into the bag. It was maroon or black with a strap. I don't remember what I did with the rope, and I left the plastic bag with her clothing in it behind the driver[']s seat. I told John he had better get rid of the clothing and he said he'd take care of it. We then went down a street across from the cemet[e]ry that dead ends by the railroad tracks. I don't remember who picked out the street but it was dark there. John [and] Dennis took her body out the side door and still wrapped in the quilt, they walked into the wooded area along the tracks and I was behind them. It was very dark and very heavy brush. John was carrying her by her head and walking backwards and Dennis had her feet. It seemed like 5 or 10 minutes to walk in before we got to an opening. At this opening we saw some wooden [pallets]. When they put her down, they both pulled the blanket and she rolled out. She ended up face down. We all started kicking leaves on her and I suggested we cover her with the [pallets], which we did. At this point I told Dennis and John I was leaving. As I started out from where her body was, I threw the jewelry I had by the tracks. I walked along the tracks until I came to a street. I turned right and I was on Sunrise [Highway].

I walked down Sunrise to Union Ave. I crossed over Sunrise on Union to Oakland. At this time I was living with my friend Brian Skellington at 66 Oakland Ave, Lynbrook. The front door was open, I went and went to sleep.

I am presently at the Homicide Squad, I have given this statement to Det. Volpe who has written it for me, I've read it and it is the truth.

App'x at 314-20; see also First Trial Tr. at 1383-1413. Kogut also gave a videotaped confession, confirming that he had been advised of and understood his constitutional rights and repeating the above story in material part. Kogut was then arrested and indicted on three counts: first-degree rape; second-degree murder in the course of rape; and intentional second-degree murder. Following a jury trial, Kogut was convicted on all counts and was sentenced to serve 37-and-one-half years to life in prison.

However, even with Kogut's confession, police recognized that they would have a very weak case against Restivo and Halstead unless Kogut were ultimately to testify against them at trial (which he did not). See Appellees' Supp. App'x at 225-26 (Detective Spillane, Volpe's supervisor, testifying that, as of March 26, after Kogut confessed and was arrested, the case against Halstead and Restivo was "very weak if not nonexistent"). Restivo's van was seized pursuant to a warrant soon thereafter. Certain hairs were allegedly found in Restivo's van pursuant to this search. Several of these hairs, the "questioned hairs" or "Q hairs," were determined to be consistent with Ms. Fusco's hairs. These hairs provided the only forensic evidence linking Restivo and Halstead to the crime.

Restivo and Halstead were then also arrested and indicted with counts of first-degree rape, second-degree murder in the course of rape, and intentional second-degree murder. Restivo and Halstead were tried jointly. As will be discussed below, Kogut's confession was inadmissible against Halstead and Restivo at their criminal trial, because Kogut did not testify. Nor was Restivo's statement implicating Halstead introduced at trial. Instead, the State introduced the Q hair evidence and evidence of statements allegedly made by Restivo or Halstead to third parties. Restivo and Halstead were convicted of all counts, and each was sentenced to 33-and-one-third years to life.

II. The DNA Evidence

Beginning in 1993, samples of semen obtained from Ms. Fusco's body were subjected to DNA testing. Initial tests excluded Halstead, Restivo, and Kogut as the source of the semen, but plaintiffs' motions to vacate their convictions were denied. A new round of DNA testing was conducted in 2003, which again demonstrated that neither Halstead, nor Restivo, nor Kogut was the source of the semen found in Ms. Fusco's body. Thereafter, on June 11, 2003, all three men's convictions were vacated. The Nassau County District Attorney retried Kogut, based on his confession and, in December 2003, Kogut was acquitted. The District Attorney then moved to dismiss the indictment against Restivo and Kogut, on the ground that the DNA evidence disproved the state's theory of the case. The indictments were dismissed on December 29, 2005.

III. Civil Suit

Kogut filed suit on December 19, 2006, and Restivo and Halstead filed suit on December 21, 2006. The district court consolidated the suits, which alleged numerous constitutional claims pursuant to 42 U.S.C. Section 1983, as well as state law claims related to the Fusco investigation and their prosecution.

A. First Trial

Following an extensive Daubert hearing, which will be discussed below, and motion practice, the case proceeded to trial on claims that defendants Joseph Volpe, Robert Dempsey, Frank Sirianni, Thomas Allen, Wayne Birdsall, and Charles Fraas maliciously prosecuted Restivo, Halstead, and Kogut and deprived them of their constitutional right to a fair trial, as well as a failure to supervise claim against defendant Shaun Spillane and a municipal liability claim against Nassau County. The jury found for defendants on all counts.

Thereafter, all three plaintiffs moved for a new trial on various grounds. The district court granted Restivo and Halstead's new trial motion, but denied Kogut's. In particular, the district court ruled that it had erred in its treatment of Kogut's confession as to Restivo and Halstead. At trial, the confession was admitted without any limiting instruction to establish probable cause for the prosecution of Restivo and Halstead. The district court concluded that it was error to allow the jury to consider the confession to establish probable cause for Restivo and Halstead's prosecution because the confession was inadmissible against them in their criminal trials, relying on Boyd v. City of New York , 336 F.3d 72 (2d Cir. 2003). The district court read Boyd as holding that defendants cannot use evidence that was inadmissible in a criminal case to establish probable cause to prosecute. The court concluded that its error affected Restivo and Halstead's substantial rights, given that the confession "was arguably one of the central pieces of evidence in this case." Special App'x at 62.

B. Second Trial

The case then proceeded to a second trial, at which Restivo and Halstead greatly narrowed their claims. At the second trial, plaintiffs claimed that Volpe and Fraas, the hair evidence technician who worked on the Fusco investigation, unconstitutionally deprived them of a fair trial under Section 1983 and that Volpe and Fraas maliciously prosecuted them under Section 1983 and New York state law. Both claims were based on the same two factual theories: that Volpe suppressed exculpatory evidence and/or that Volpe, either independently or with the assistance of Fraas, planted the hairs allegedly found in Restivo's car.

Pursuant to its ruling that "in attempting to show probable cause, Defendants [are] limited to evidence that was both included in their interrogatory responses and admissible in Halstead and Restivo's criminal proceedings," Special App'x at 61, and finding the confession irrelevant to the fair trial claims, the court excluded Kogut's confession from coming into evidence at the second trial. The court also excluded Restivo's statement to police regarding inculpatory statements allegedly made by Halstead on the ground that the statement was inadmissible in the criminal trial.

Ultimately, the jury found that Volpe, but not Fraas, maliciously prosecuted plaintiffs and deprived them of their right to a fair trial. A special verdict was not requested, and the jury therefore did not specify whether it found against Volpe on the theory that he suppressed exculpatory evidence, planted the hair evidence, or both. Following a separate damages trial, the jury awarded each plaintiff a damages award of $18 million.

1. Evidence at Trial

We turn now to the evidence presented at trial. a. Plaintiffs' Claims of Innocence

Plaintiffs were not required to prove their innocence to win on their claims at trial. However, the evidence of their innocence provides an important backdrop for their claims at trial. As noted, the DNA testing in 2003 demonstrated that neither Restivo, nor Halstead, nor Kogut contributed the semen found in Ms. Fusco after her death. Volpe asserts that this does not establish plaintiffs' innocence, and speculates that plaintiffs raped the victim without ejaculating or while wearing condoms and that the sperm came from a consensual sexual partner. Volpe baselessly speculates that, although there was no evidence that Ms. Fusco was sexually active, she may have been having sex with her boyfriend, who was black, and she may not have told her friends because "it was socially unacceptable for white girls to date black guys on Long Island in the 1980s." Appellant's Reply Br. at 4. However, not only does this speculation lack any basis in record evidence, it is also rendered implausible by testimony at trial.

First, plaintiffs' expert witness, Dr. Charlotte Word, testified about the DNA evidence in this case. She testified that vaginal swabs and smears taken from Ms. Fusco at her autopsy and later put on slides showed DNA from two sources. First, there was Ms. Fusco's DNA, demonstrating that these slides were taken from her and were not mislabeled or misplaced. Second, there was semen from only one male donor. As noted, the testing on the semen definitively excluded Restivo, Kogut, and Halstead as a source. The semen was also tested against DNA profiles of 86 individuals known to Ms. Fusco, including various people she had dated, and there were no matches. Nor was there a match when the semen was tested against the Combined DNA Index System database kept by the Federal Bureau of Investigation. Further, Dr. Word testified that there was a large quantity of sperm present and that the DNA in the sperm head was well preserved. The quantity of sperm indicated that the "murder occurred very soon after the deposition of the sperm." Trial Tr. at 435. Additionally, Dr. Word testified that the Nassau County medical examiner's office records indicate that a very large number of sperm were collected from the vaginal cavity on the swabs and, "when looked at microscopically, two different individuals were able to see that the tail portion of the sperm was also still attached to the sperm head." Trial Tr. at 436. Dr. Word testified that "the presence of tails on the sperm means that the sperm had not been in the vaginal cavity for a very long time[,] [b]ecause normally, in a normal healthy female, probably within six hours or less, maybe at the outside ten to twelve hours, those sperm tails are lost." Trial Tr. at 436. In sum, she testified that the sperm was deposited "[p]robably no more than eight to twelve hours, but more likely less than six" hours of the time of her death. Trial Tr. at 443. Furthermore, the physical evidence rebutted defendants' hypothesis that plaintiffs raped Ms. Fusco while wearing condoms after a consensual sexual partner deposited the semen. In particular, Dr. Word gave the following explanation:

[T]he physical act of two [or] more, or whatever more of vaginal penetration and sexual intercourse with her [even with condoms] would ... contribute to the loss of sperm from the vaginal cavity. So under that scenario, my expectation would be that we would have a much smaller number of sperm present on the samples collected. It wouldn't be consistent with that hypothesis.

Trial Tr. at 444.

Nor is there any evidence that Ms. Fusco was sexually active. The undisputed evidence, based on notes from the investigating detectives, Ms. Fusco's diary, Ms. Fusco's mother, and Ms. Fusco's best friend, was that Ms. Fusco was a virgin prior to the rape. Moreover, as noted, DNA testing done on 86 individuals, including various boyfriends and ex-boyfriends of Ms. Fusco, did not reveal a match.

Further, defendants introduced only limited evidence at trial to establish Restivo and Halstead's guilt. Indeed, the primary evidence they sought to introduce to establish plaintiffs' guilt was Kogut's confession and Restivo's statement implicating Halstead; as discussed in detail below, both of these statements were hearsay that the jury could not consider for the truth of the matters asserted, that is, for the truth of whether Halstead and Restivo committed the crimes. The only other evidence introduced at trial tending to show their guilt was the testimony of Restivo's friend Michael Cockerel, who testified that, before Ms. Fusco's body was found, Restivo commented to him that the body would probably be found at Lynbrook Cemetery; that Restivo's brother assaulted him, and was then charged with witness tampering; that, when he asked Restivo if he committed the crime, Restivo responded, "Didn't matter who did it. She was a black person lover," Trial Tr. at 2430; and that, the day after Ms. Fusco's disappearance, Restivo told him that he "got his dick wet" the prior night, Trial Tr. at 2431. But on cross-examination, Cockerel admitted that he gave various statements to police that had contradictory information, that he lied to the grand jury, and that he was interviewed by police for more than ten hours, during which time police accused him of being involved in the crime.

b. Suppression of Exculpatory Evidence

We now turn to the theories underpinning plaintiffs' malicious prosecution and denial of fair trial claims. First, plaintiffs claim that Volpe suppressed exculpatory evidence regarding a lead that Volpe developed—the "French lead."

Volpe testified at his deposition that, when she went missing, Ms. Fusco was wearing dark and light striped blue jeans with stripes two to three inches apart, and that the jeans were tapered at the ankles with cuffs. Accordingly, a missing person flier, which stated that the victim was wearing striped blue jeans when she went missing, was posted around town.

Shortly after Ms. Fusco's body was found, a man named John French called to alert the police that his car had been stolen near Hot Skates around the same time of Ms. Fusco's disappearance. Specifically, the report, which was made on December 6, 1984, stated that French's car had been stolen between 9:30 PM and 11:05 PM on November 10, 1984 less than a mile away from Hot Skates. French found his car about a week later, before Ms. Fusco's body was discovered. He found the car near railroad tracks in Lakeview, near Woodfield Road, approximately one and one-half to two miles away from where it had been stolen. When he found the car, the license plates had been changed. Additionally, his sister, Lori French Gabberty, found a pair of women's or girls' jeans with stripes under the right passenger seat; at least one leg of the pants was inside out. These jeans were not in French's car before it was stolen. The jeans were discarded inadvertently by the Lynbrook Police before Ms. Fusco's body was found. French also stated that, when he found his car, a rope that had previously been there was missing. The car was taken for processing, and was combed for forensic evidence. Volpe's handwritten notes indicate that he got hair samples from people who may have had access to French's car, and that investigators found a hair that was "more than 50% similar to deceased & less than 100% similar" to Ms. Fusco's in the car. Appellees' Supp. App'x at 1569.

Two documents were created as a result of Volpe's investigation, Plaintiffs' Exhibits 161 and 163. Exhibit 161 is a report providing information about the location and time of the theft of French's car, where the car was found, and the discovery of women's blue jeans with stripes, inside out under the seat. Exhibit 163 is a statement from French, wherein he describes being shown a length of rope and a brown felt pouch, which he identified as belonging to him. See App'x at 375 (photograph of rope).

At his deposition, Volpe testified that he thought that the French lead was Brady material, but that he turned it over to the District Attorney. There is evidence, however, that Volpe in fact did not turn over the French lead material. This evidence included testimony from Restivo that he did not know about this evidence at the time of his trial, testimony from Restivo's criminal trial counsel that he did not know about this evidence at the time of trial, evidence that Volpe did not disclose that striped jeans were found in French's car or that a rope was missing when he informed his supervisor, Lieutenant Spillane, that he was closing the French lead, testimony from the Assistant District Attorney on the case that he did not remember whether Volpe had told him about the French lead, and testimony from Judge Edward W. McCarty, who was the Assistant District Attorney on the case, that he did not remember being told about the French lead at the time of the investigation and that he never saw Exhibits 161 or 163 or learned the information contained therein before the civil trial. The parties also stipulated that Nassau County District Attorney's Office Chief of Appeals Bureau Peter Weinstein, who oversaw the State's response to Halstead and Restivo's requests for post-conviction relief would testify that "[t]o the best of [his] knowledge, th[e] information about the French car/striped jeans lead was never disclosed by police to the prosecutors." Appellees' Supp. App'x at 1736. And the county attorney previously representing defendants in the civil suit testified that when she received the DA's files and reviewed them, she did not recall seeing Exhibits 161 or 163 or other evidence about the French lead.

Further, although Volpe admitted at his deposition that he knew the French lead was exculpatory, his attorney now argues that it was not, relying on the following evidence. First, at the civil trial, Gabberty testified that the jeans she found in 1984 had stitching, and she could not remember if there were stripes. But in 1984 she told police that the jeans were striped, and she testified at the civil trial that her memory was much fresher at the time she first spoke to detectives than at the civil trial decades later. Volpe also argues that the rope could not have been used in the murder because it had no blood on it and the medical examiner testified that the rope was too long, relying apparently on the image of the rope in evidence. But at trial, as noted, the medical examiner testified that although using a shorter rope would have been more efficient at killing Ms. Fusco, she "[doesn't] know the length of the rope; [she] [has] no idea." Appellees' Supp. App'x at 568. Further, the rope went missing at some point and was not tested for blood.

The materiality of the French lead was also reinforced by testimony from plaintiffs' police practices expert, Russell Fischer. Fischer worked in law enforcement for 33 years, ultimately achieving the rank of chief of criminal investigations in the Miami-Dade Police Department, one of the seven largest police departments nationwide. Fischer now works as an expert witness and assists in training law enforcement officers. At trial, Fischer testified to minimally accepted police practices, "a baseline type of behavior or protocols that law enforcement officers follow," which differ from best practices. Trial Tr. at 1776. He testified that these minimally accepted police practices derive from a number of sources including court decisions, articles written by police practitioners, model policies produced by the International Association of Chiefs of Police as well as other groups, as well as practices from major police departments.

Fischer testified that, based on the evidence he had, the French lead was clearly exculpatory, and should have been documented and sent to a prosecutor, based on minimally accepted police practices in the 1980s. In particular, Fischer concluded that based on the time and location of the theft, the fact that the car's license plates were removed, the fact that a rope was in the back seat at the time of the theft and a rope was used as a ligature to strangle Ms. Fusco, and the fact that a pair of women's or girls' striped jeans were found in the back seat of the vehicle, with at least one leg turned inside out, this lead was clearly exculpatory. Fischer testified that under minimally accepted practices, exculpatory evidence does not need to definitively prove innocence in order for it to have to be documented and disclosed, and that the combination of all of these factors meant that the evidence should have been disclosed under minimally accepted police practices.

c. Planting of Hair Evidence

The second theory underlying plaintiffs' malicious prosecution and fair trial claims was that Volpe, either alone or with the assistance of Fraas, planted the Q hairs belonging to Ms. Fusco that were allegedly found in Restivo's van. According to plaintiffs' theory of the case, Volpe removed several hairs from an envelope containing hairs removed at Ms. Fusco's autopsy and planted them in an envelope containing hairs collected from Restivo's van. By contrast, Volpe contends that Restivo and Halstead are actually guilty of the crime, and Ms. Fusco's hairs fell out in Restivo's van during the commission of the crime. Several pieces of evidence support plaintiffs' theory of the case. When Ms. Fusco's body was brought to the Medical Examiner's office, after photographs were taken, her hair was washed with water and the debris and leaves were removed. One of plaintiffs' experts testified that there was no significant mechanical damage to the Q8 or Q4 hairs or any debris on the hairs. Ms. Fusco's known hairs removed at the autopsy were in the same condition, basically without debris or mechanical damage. By contrast, the other hairs removed from Restivo's van, which were not consistent with Ms. Fusco's hair, "had some mechanical damage, which is typical[ly] what happens to hair when it is laying around in an area where people work or walk or travel through, etcetera," and "also had some debris on it." Trial Tr. at 921.

Additionally, extensive expert testimony was given regarding the presence of post-mortem root banding ("PMRB") in the Q hairs, which testimony was the subject of a five-day Daubert hearing. PMRB is a type of decomposition that occurs in hairs that are attached to dead bodies. Plaintiffs sought to introduce expert evidence that the Q hairs displayed PMRB and that PMRB takes days, if not weeks, to develop. This evidence would tend to show that the Q hairs were planted autopsy hairs; because the medical examiner testified that Ms. Fusco was placed where she was found within an hour of her death, even if Ms. Fusco was in Restivo's van after she had been killed, according to plaintiffs' experts, the Q hairs still must have been planted because PMRB could not develop in her hair within an hour of her death.

2. Verdict and Damages

On April 11, 2014, following the presentation of evidence and being charged, the jury found that Volpe, but not Fraas, unconstitutionally deprived Restivo and Halstead of their right to a fair trial and maliciously prosecuted them. A separate damages trial was then held, where extensive testimony was given about the effects of the incarceration on the men. The jury was instructed to determine an award that fairly compensates each plaintiff for the damages they suffered. The jury was instructed to award only compensatory damages, and only for the injuries that plaintiffs proved were proximately caused by Volpe's wrongful conduct. Further, the court instructed: "Although defendant Volpe was found liable for two causes of action, each plaintiff is entitled to one recovery. The damages that you award must be fair compensation for all of the plaintiff's damages, no more and no less." Damages Trial Tr. at 579. On April 17, 2014, the jury awarded $18 million each to Restivo and Halstead.

C. Post-Trial Issues

1. Motions to Reduce the Jury Award

Following the trial, Volpe moved to reduce the jury's damages award on several grounds, each of which was rejected by the district court.

Volpe first claimed that he was entitled to relief based on a prior settlement between plaintiffs and New York State. Before bringing suit in federal court, plaintiffs brought suit against New York State in the New York State Court of Claims pursuant to the Unjust Conviction and Imprisonment Act, New York Court of Claims Act Section 8-b. Under this law, individuals who can demonstrate that they were wrongly convicted of state crimes are entitled to compensation, regardless of whether there was any wrongdoing by a government official. Accordingly, plaintiffs sought compensation for the sixteen years they spent in jail following their convictions. Plaintiffs settled with the State for $2.2 million each. As is relevant on appeal, Volpe argued that allowing each plaintiff to keep the $18 million awarded by the jury, while also keeping the $2.2 million awarded in the State settlement, violates the rule against double recovery, and that the $18 million awards should be reduced by the amount of the settlements. The district court rejected this argument, concluding that a setoff in this case would violate federal policies underlying Section 1983.

Volpe also argued that the damage award was excessive and moved for remittitur. The district court considered both the federal and state standards for excessiveness, and concluded that the award was not excessive under either standard.

2. Attorneys' Fees

3. Indemnification

Before passing away, Volpe agreed to have the County Attorney represent him. Initially, the Nassau County Police Indemnification Board determined that Volpe and all other officer-defendants were acting within the scope of their employment during the Fusco investigation and therefore were fully indemnified, and attorneys from the law firm Freeman Nooter & Ginsberg were hired by the County to represent all defendants. At a March 2015 hearing, long after the second trial and the jury verdict against Volpe, the district court was alerted that Nassau County might take the position that it was not obligated to indemnify Volpe's estate. At the hearing, the district court held that "[b]ecause the estate and the County's interest[s] were aligned at trial, it was appropriate for the County and the estate to put on a joint defense. However, it appears that the interests of the County and the estate have now diverged." Appellees' Supp. App'x at 1819. The district court therefore disqualified Freeman Nooter & Ginsberg from representing Volpe's estate, based on the "unwaivable direct conflict" due to the law firm representing Volpe while at the same time contending that the County did not need to indemnify the estate. Appellees' Supp. App'x at 1810. Thereafter, plaintiffs, the conflict counsel for the estate, and counsel for the County of Nassau entered into a binding agreement, so ordered by the district court on July 1, 2015, that the County would fully indemnify the estate.


I. Ruling on Rule 59(a) Motion for a New Trial

Volpe first challenges the district court's grant of Restivo and Halstead's motion for a new trial under Federal Rule of Civil Procedure 59(a) following the defense verdict at the first trial.

In general we review for abuse of discretion a district court's denial of a motion for a new trial pursuant to Rule 59, but where the basis of the Rule 59 motion is an erroneous jury instruction, we review the jury instructions de novo. A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law. An erroneous jury instruction requires a new trial, unless the error is harmless.

Velez v. City of New York , 730 F.3d 128, 134 (2d Cir. 2013) (internal quotation marks and citations omitted).

Because a malicious prosecution plaintiff must show the absence of probable cause for prosecution, see Torres v. Jones , 26 N.Y.3d 742, 47 N.E.3d 747, 760 (2016), whether the police defendants had probable cause to proceed with the prosecution of Restivo and Halstead was of central importance at both the first and second trials in this case. The district court's decision to grant the Rule 59(a) motion turned precisely on this point. It first held that, because Kogut's confession was inadmissible at the criminal trial against Restivo and Halstead, pursuant to Boyd v. City of New York , 336 F.3d 72 (2d Cir. 2003), Volpe could not use that confession to defend against Restivo and Halstead's assertion that probable cause for the prosecution was lacking. The district court concluded that it had erred in framing the jury instructions so broadly as to imply that Kogut's confession, even if admissible at the first trial for other reasons, could, in fact, be used for this purpose. It therefore granted Restivo and Halstead's Rule 59(a) motion for a new trial.

We conclude that the district court's reading of our limited holding in Boyd was incorrect. Nevertheless, the court was correct in concluding that, in the context of this case, the instruction on probable cause at the first trial was inadequate, and in a manner implicating the fairness of that proceeding. We therefore affirm the district court's ruling on an alternative ground. Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc. , 560 F.3d 118, 126 (2d Cir. 2009).

II. Evidentiary Rulings at the Second Trial

Next, Volpe challenges a number of evidentiary rulings at the second trial, and contends that a third trial is required. In particular, Volpe challenges (1) the district court's exclusion of several inculpatory statements by Kogut, Restivo and Halstead; (2) the district court's admission of plaintiffs' expert testimony on PMRB analysis; (3) the district court's exclusion of Volpe's expert Kadane who sought to testify about PMRB analysis; and (4) the district court's admission of testimony from plaintiffs' police practices expert, Fischer.

A. Exclusion of Inculpatory Statements by Kogut, Restivo, and Halstead

Volpe first argues that the district court denied him a fair trial by refusing to admit Kogut's confession and certain admissions allegedly made by Restivo and Halstead. To be admissible, evidence must be relevant, under Federal Rules of Evidence 401 and 402, and even relevant evidence may be excluded under Rule 403 if "its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." We apply "abuse-of-discretion review to a trial court's evidentiary rulings." Lore v. City of Syracuse , 670 F.3d 127, 155 (2d Cir. 2012). "The hallmark of abuse-of-discretion review is deference...." Id. In particular, when assessing claims of relevance and undue prejudice, our review "is highly deferential in recognition of the district court's superior position to assess relevancy and to weigh the probative value of evidence against its potential for unfair prejudice." United States v. Coppola , 671 F.3d 220, 244 (2d Cir. 2012) (internal quotation marks omitted). We will therefore only hold that the district court abused its discretion in making an evidentiary ruling where "the ruling was arbitrary and irrational." Id. Further, as noted, "an erroneous evidentiary ruling warrants a new trial only when a substantial right of a party is affected, as when a jury's judgment would be swayed in a material fashion by the error." Lore , 670 F.3d at 155 (internal quotation marks omitted).

First, Volpe challenges the fact that eight alleged statements that tend to show that Restivo and Halstead were guilty of the crimes were not admitted at the second trial. However, as Volpe himself admits, he never sought to introduce these pieces of evidence. Volpe claims that he did not offer the alleged statements or call the relevant witnesses at the second trial because the district court precluded all but the evidence admitted at the criminal trial. But Volpe misstates the court's ruling. The district court did not rule that only evidence actually admitted at the criminal trial could be admitted in this civil case; rather, the district court clearly ruled that only evidence that would have been admissible at the criminal trial, regardless whether it was actually admitted, could be admitted in the civil trial in order to prove probable cause. See Special App'x at 60-61 (agreeing with plaintiffs' arguments that " Boyd ... assert[s] that probable cause to commence proceedings means the belief that the prosecution would succeed based on admissible evidence ," and holding, therefore, that "Defendants were limited to evidence that was both included in their interrogatory responses and admissible in Halstead and Restivo's criminal proceedings"). If Volpe failed to offer evidence based on his misinterpretation of the district court's clear ruling, he has only himself to blame.

B. Expert Witness Rulings

Volpe next challenges several rulings by the district court on testimony of expert witnesses, specifically (1) the district court's admission of plaintiffs' expert testimony on post-mortem root banding ("PMRB") analysis, (2) its exclusion of the proposed PMRB defense expert, and (3) its admission of testimony from plaintiffs' police practices expert, Fischer.

1. Admission of Plaintiffs' Expert Testimony on PMRB Analysis

As noted, the only physical evidence linking plaintiffs to the crime were the Q hairs that were allegedly recovered during a search of Restivo's blue van on March 26, 1985, almost five months after the murder. At trial, plaintiffs' experts testified that the presence of PMRB, as well as the extent of the PMRB in the hairs, indicated that the Q hairs were hairs taken from Ms. Fusco during her autopsy and then placed in an envelope containing hairs found in Restivo's van. Volpe raises two challenges with respect to plaintiffs' experts' PMRB testimony. First, he argues, because the court found that the timing of PMRB had not been established to a degree of scientific certainty, the court was not permitted to compromise and allow the evidence to come in so long as the experts did not testify to a degree of scientific certainty. Second, Volpe claims that two of the experts—Dr. Houck and Petraco—did not comply with the limitation set by the court.

The same abuse-of-discretion standard of review applies to rulings on "the admissibility of expert testimony." Lore , 670 F.3d at 155. Again, this is a highly deferential standard, and "a ruling on the admissibility of expert testimony ‘is to be sustained unless manifestly erroneous.’ " Id. (quoting Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962) ). "Significantly, the abuse of discretion standard ‘applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion.’ " Amorgianos v. Nat'l R.R. Passenger Corp. , 303 F.3d 256, 265 (2d Cir. 2002) (quoting Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ). "Thus, in analyzing the admissibility of expert evidence, the district court has broad discretion in determining what method is appropriate for evaluating reliability under the circumstances of each case." Id. "Further, an erroneous evidentiary ruling warrants a new trial only when a substantial right of a party is affected, as when a jury's judgment would be swayed in a material fashion by the error." Lore , 670 F.3d at 155 (internal quotation marks omitted).

Under the Federal Rules of Evidence, expert witnesses may testify under the following conditions:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court ruled that Rule 702 assigns to district courts the gatekeeper function—"ensur[ing] that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589, 113 S.Ct. 2786. Under Daubert , factors relevant to determining reliability include "the theory's testability, the extent to which it ‘has been subjected to peer review and publication,’ the extent to which a technique is subject to ‘standards controlling the technique's operation,’ the ‘known or potential rate of error,’ and the ‘degree of acceptance’ within the ‘relevant scientific community.’ " United States v. Romano , 794 F.3d 317, 330 (2d Cir. 2015) (quoting Daubert , 509 U.S. at 593–94, 113 S.Ct. 2786 ). But the inquiry is a "flexible one," Daubert , 509 U.S. at 594, 113 S.Ct. 2786, and the "factors [Daubert ] mentions do not constitute a ‘definitive checklist or test.’ " Kumho Tire Co. , 526 U.S. at 150, 119 S.Ct. 1167 (quoting Daubert , 509 U.S. at 593, 113 S.Ct. 2786 ).

In Kumho Tire Co. , the Supreme Court ruled "that Daubert 's general holding—setting forth the trial judge's general ‘gatekeeping’ obligation—applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge." 526 U.S. at 141, 119 S.Ct. 1167 (quoting Fed. R. Evid. 702(a) ). When determining the admissibility of non-scientific expert evidence, "a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability." Id. "But, as the Court stated in Daubert, the test of reliability is ‘flexible,’ and Daubert 's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." Id ."Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. at 142, 119 S.Ct. 1167.

Volpe claims that, because the district court concluded that certain aspects of PMRB had not been established to a degree of scientific certainty, the district court should not have permitted plaintiffs' experts to testify about PMRB at all. We disagree. Rule 702"makes no relevant distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge," and "makes clear that any such knowledge might become the subject of expert testimony." Kumho Tire Co. , 526 U.S. at 147, 119 S.Ct. 1167. There is no basis in the rule or in our case law to suggest that a scientist whose testimony could not pass muster under Daubert as "scientific knowledge" could not testify to their technical or other specialized knowledge, so long as that testimony was reliable under Rule 702 and Kumho . "Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called ‘general truths derived from ... specialized experience.’ " Id. at 148, 119 S.Ct. 1167 (quoting Learned Hand, Historical and Practical Considerations Regarding Expert Testimony , 15 Harv. L. Rev. 40, 54 (1901) ). And, just as non-scientist experts can testify about their opinions, so too can scientists, when their opinions are based on reliable technical or specialized knowledge, though not scientific fact. As explained in In re Ephedra Products Liability Litigation , 393 F.Supp.2d 181 (S.D.N.Y. 2005), "[t]he Court in Kumho Tire rejected the view that Rule 702 sets a lower standard for witnesses with ‘technical or other specialized knowledge’ than for scientists. But its reasoning cuts both ways: if art appraisers, handwriting experts or economists may express professional opinions that fall short of definitive proof, so may scientists." Id. at 188 ; see also id. at 190 (reasoning that Daubert was "never intended to keep from the jury the kind of evidence scientists regularly rely on in forming opinions of causality simply because such evidence is not definitive," and holding that " Rule 702, a rule of threshold admissibility, should not be transformed into a rule for imposing a more exacting standard of causality than more-probable-than-not simply because scientific issues are involved"). Thus, if a scientist wants to testify to an opinion or conclusion that has not been established to a degree of scientific certainty under Daubert , the court may admit the testimony as non-scientific expert testimony under Rule 702 and Kumho Tire . That is, the court must still assess whether the expert employs "the same level of intellectual rigor that characterizes the practice of an expert in the relevant field," Kumho Tire Co. , 526 U.S. at 152, 119 S.Ct. 1167, and may consider the Daubert factors in making this determination or other relevant factors, id. at 141–42, 119 S.Ct. 1167. In particular, we have held that a "trial judge should exclude expert testimony if it is speculative or conjectural or based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison." Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC , 571 F.3d 206, 214 (2d Cir. 2009) (internal quotation marks omitted). By contrast, "other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony." Boucher v. U.S. Suzuki Motor Corp. , 73 F.3d 18, 21 (2d Cir. 1996) (internal quotation marks omitted). Additionally, the district court may consider the gap between the data and the conclusion drawn by the expert from that data, and exclude opinion evidence where the court "conclude[s] that there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Frequently, though, "gaps or inconsistencies in the reasoning leading to [the expert's] opinion ... go to the weight of the evidence, not to its admissibility." Campbell ex rel. Campbell v. Metro. Prop. & Cas. Ins. Co. , 239 F.3d 179, 186 (2d Cir. 2001).

With that background, we turn to the question whether the district court abused its discretion in admitting plaintiffs' experts' testimony, while prohibiting those experts from testifying to a reasonable degree of scientific certainty. The district court, having found that the timing of PMRB was not scientifically established, applied the Daubert factors and found that they overall supported the admissibility of plaintiffs' experts' testimony. The district court found that there was evidence that PMRB can be distinguished from other types of environmentally caused banding within an acceptable rate of error—99.5% accuracy when one person worked alone, or 100% when two examiners double checked each other's work. See Kogut , 894 F.Supp.2d at 235. This was reinforced by Domzalski's thesis, which stated that although environmental factors can cause changes to scalp hair roots, environmental banding is visually different, occurring at a different place on the hair than PMRB. Id. Additionally, the experts' opinions were consistent with the academic literature on the topic, and PMRB, as plaintiffs' experts described it, is a generally accepted phenomenon within the forensic science community. Id. In sum, the court concluded that "although these facts do not add up to scientific proof, they supply a reasonable basis for forensic experts to conclude that PMRB is an artifact of decomposition and that, consistent with the speed at which other effects of decomposition appear on a corpse, it does not appear immediately after death." Id. at 244. The district court, before the second trial, also considered the Koch study, which, as noted, involved a test of roughly 24,000 hair roots from 23 human cadavers permitted to decompose in varying environmental conditions. In cadavers outside on the ground, PMRB generally did not develop until 6-10 days after death. The earliest development of PMRB in the study, which occurred in a cadaver placed in the trunk of a car in August, occurred after 4 days. Based on this evidence, we find no abuse of the district court's discretion in holding that this evidence was sufficiently reliable to be admitted, and the analytical gaps in the reasoning of Plaintiffs' experts were not too great.

Finally, we find no reversible error with respect to Volpe's claims that Dr. Houck and Petraco violated the court's instruction not to state that their testimony was to a degree of scientific certainty. To the extent that Dr. Houck or Petraco violated this instruction, any error was harmless. With respect to Dr. Houck, the district court gave an instruction that he was not testifying to a reasonable degree of scientific certainty, and Petraco testified on cross-examination that he was not testifying to a reasonable degree of scientific certainty. Finally, to the extent that Volpe's argument on appeal turns on the fact that these experts testified to their opinion on an ultimate issue, that is, whether the hairs were planted, Federal Rule of Evidence 704(a) instructs that "[a]n opinion is not objectionable just because it embraces an ultimate issue."

2. Exclusion of Defense Expert on PMRB

Volpe next claims that the district court incorrectly precluded him from introducing testimony from his proposed expert, Dr. Joseph B. Kadane. Dr. Kadane, a statistician, sought to testify that (1) post-mortem root banding could not be distinguished from various types of ante-mortem root banding and that (2) the academic research that had been done to that point was insufficient to establish how long it took after death for PMRB to appear.

3. Police Practices Expert Testimony

III. Conflict of Interest

Next, Volpe argues that a conflict of interest deprived him of a fair trial. In particular he claims that because counsel represented both Volpe and Fraas, counsel did not argue that, if anyone planted the hair evidence, it was Fraas. Volpe also claims that there was a second conflict because counsel also represented the county, which had agreed to indemnify both Volpe and Fraas, and thus preferred the argument that no evidence was planted, rather than the argument that Fraas and not Volpe planted evidence. Volpe argues that this prejudiced him at trial and that this prejudice is not remedied by Nassau County indemnifying him because the county could again deny indemnification and because Volpe's family has an interest in restoring his reputation.

Volpe relies primarily on Dunton v. Suffolk County , 729 F.2d 903 (2d Cir. 1984), amended on other grounds , 748 F.2d 69 (2d Cir. 1984), for this argument. In Dunton , a Suffolk County police officer defendant, Officer Pfeiffer, allegedly assaulted the plaintiff, Dunton, after the plaintiff allegedly made improper advances toward Officer Pfeiffer's wife. See id. at 905. Dunton brought suit against Officer Pfeiffer, his wife, and Suffolk County. Under local law, Suffolk County provides for representation of employees sued under Section 1983. The county attorney's answer to Dunton's complaint raised the affirmative defense that Officer Pfeiffer was "acting in good faith pursuant to his official duties and responsibilities," but at trial, the county attorney's theory of the case was that Officer Pfeiffer was acting as an "irate husband rather than a police officer." Id. at 906 (internal quotation marks omitted). The county attorney's position at trial was therefore against Officer Pfeiffer's interest. "Specifically, Officer Pfeiffer claim[ed] that it was in his interest to assert his immunity from section 1983 liability based on good faith actions within the scope of his employment." Id. at 907. By contrast, the attorney undermined the good faith immunity defense by repeatedly stating that Pfeiffer acted not as a police officer but as an irate husband, a defense that would help the county escape liability. Thus, at trial a serious conflict actually surfaced "when the County Attorney stated that Pfeiffer was not acting under color of state law but rather as an ‘irate husband.’ " Id. at 907. Our Court reasoned,

As soon as the County Attorney began to undermine Officer Pfeiffer's good faith immunity defense by stating that Pfeiffer acted as an "irate husband" and not as a police officer, he was not only failing to act as a conscientious advocate for Pfeiffer, but was acting against Pfeiffer's interest. The seriousness of this conflict made disqualification appropriate.

Id. at 908. Further, this conflict was prejudicial because the jury did not consider Officer Pfeiffer's good faith defense and the county indemnified Officer Pfeiffer only for compensatory damages, not punitive damages, and "[i]f the jury found that Pfeiffer was acting in good faith as a police officer, it might not have awarded punitive damages." Id. at 909.

We find no actual and serious conflict requiring a new trial here. First, the "particular conflict cited in Dunton as inherent in Section 1983 actions against municipalities, namely that the municipality can escape liability by arguing that its employees were not acting within the scope of official employment while the employee can escape liability by arguing the opposite, is simply not present here." Patterson v. Balsamico , 440 F.3d 104, 115 (2d Cir. 2006). Unlike in Dunton , in this case the County was not a party at trial facing a Monell claim, and thus would not benefit from the argument that Volpe was acting outside the scope of his employment. Further, prior to trial, Nassau County had taken the position that it was fully indemnifying Volpe, and there was no indication that it might not until after the trial ended. At trial, therefore, the County and Volpe's interests aligned. Unlike in Dunton where counsel argued a theory that benefited one defendant and harmed another, counsel's defense theory—that there was no suppression of exculpatory evidence or planting of evidence—was a unified theory of defense benefitting Volpe, Fraas, and the indemnitor, the County. Finally, we find unpersuasive Volpe's argument that an unconflicted attorney would have pointed the finger at Fraas and that this necessitates a new trial. Indeed, defense counsel argued that, if someone had planted the hair, it could not have been Volpe, as he lacked the necessary access to do so.

IV. Setoff

We now turn to issues related to the jury's damages award. Restivo and Halstead each received $2.2 million in compensation in a settlement with New York State pursuant to New York Court of Claims Act Section 8-b, which provides for compensation by the State upon a showing of wrongful conviction without proof of wrongdoing by any government official. Volpe argues that the jury's damages award should be set off by the amount received in the State settlement.

As to Restivo and Halstead's recovery on Section 1983 claims, we first must decide what law to apply in deciding whether a setoff is available. Under Section 1988 of Title 42, jurisdiction over Section 1983 claims

shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.

42 U.S.C. § 1988(a) ; see also Davis v. Rodriguez , 364 F.3d 424, 433 n.7 (2d Cir. 2004) ; Valley Disposal Inc. v. Cent. Vt. Solid Waste Mgmt. Dist. , 113 F.3d 357, 362 (2d Cir. 1997) (" Section 1988... provides that where there are gaps in federal law with respect to the availability of suitable remedies for civil rights violations, the courts should look to state law insofar as it is not inconsistent with federal law.").

This statutory scheme establishes a three part test for finding substantive law. First, if federal law is neither deficient nor inapplicable, it will apply. Second, if federal law does not apply, state law does apply, unless, third, state law would be inconsistent with the Constitution and laws of the United States.

Dobson v. Camden , 705 F.2d 759, 762 (5th Cir. 1983), modified on other grounds on reh'g , 725 F.2d 1003 (5th Cir. 1984) ; see also Robertson v. Wegmann , 436 U.S. 584, 588, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978).

Turning to the first question, we find that federal law is deficient because federal statutory law is silent on the question of the effect of a settlement on the damage award against a non-settling defendant in a Section 1983 case, and because federal common law is not clear on this point. Compare Miller v. Apartments & Homes of N.J., Inc. , 646 F.2d 101, 110 (3d Cir. 1981) (holding in a Fair Housing Act and Section 1982 case, that, under the federal common law, "where one or more defendants have settled with a plaintiff, the damages recoverable by that plaintiff shall be reduced by the amount of the settlement received"), with Dobson , 705 F.2d at 768 (holding, in a Section 1983 case, that a settlement by one tortfeasor has no effect on the liability of another, with "each nonsettling tortfeasor" being responsible for a "proportional share of the damages"); see also Dobson , 705 F.2d at 762 (finding federal law deficient on this issue); Johnson v. Rogers , 621 F.2d 300, 304 n.6 (8th Cir. 1980) ("In the instant case, as federal law does not answer the question of the effect of a plaintiff's settlement with one defendant on an award of damages against a non-settling defendant, state law should serve as the federal rule of decision unless inconsistent with the policies underlying a [Section] 1983 cause of action."); Mason v. City of New York , 949 F.Supp. 1068, 1077–78 (S.D.N.Y. 1996) (finding federal law deficient due to inconsistent pronouncements); Hoffman v. McNamara , 688 F.Supp. 830, 833 (D. Conn. 1988) (same). The dissent, in contrast, concludes that federal law is not deficient because some federal caselaw suggests that setoff is appropriate in the context of certain Section 1983 actions. We disagree with the dissent, and continue to find federal law is deficient and inapplicable, for three basic reasons: (1) federal caselaw makes clear that the State of New York is not a proper defendant in a Section 1983 action and, therefore, whether and for what amount the State of New York has settled claims with the Section 1983 plaintiffs is irrelevant with respect to other defendants' liability for plaintiffs' Section 1983 claims; (2) no federal caselaw suggests that setoff is appropriate where a settling party's liability is never considered at trial by a jury; and (3) federal caselaw prohibiting double recovery is inapplicable where no total amount of loss can be ascertained.

First, it is axiomatic that a state is not a proper defendant in an action brought pursuant to Section 1983. Will v. Mich. Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that a "State" is not a "person under [Section 1983 ]"). At trial, the jury awarded Restivo and Halstead $18 million each from Volpe pursuant to Section 1983. Supp. App'x at 1528. None of that amount could even theoretically have been attributable to the State of New York, whether or not the State of New York had previously settled, because the State of New York is not a proper party under Section 1983. The dissent's reliance on cases that address setoff in situations where the settling party could have been held liable under the same theory or theories of liability as those considered at trial are therefore wholly inapposite to the situation here.

Second, none of the cases to which the dissent points address the issue of settlement before trial of a party in a Section 1983 action where the liability of the settling party is then never considered by the jury at trial. This distinction is crucial—the settling defendant, here the State of New York, was never included in the charge to the jury as a liable defendant. See Supp. App'x at 1332-33. This is in no small part because the State of New York is not a proper defendant in a Section 1983 action. Assuming, arguendo , that the State was a proper party vis à vis the claims on which the jury rendered its damages award, however, federal law would still be deficient here. This is because New York Court of Claims Act Section 8–b, under which the State of New York settled, has no fault requirement. Plaintiffs' Section 8–b action did not turn on a wrongful or malicious conviction (as would be required for a finding of liability under Section 1983 ), but simply on an incorrect one. The State, therefore, never admitted liability and so could not have been found liable by the jury unless it had been included as a defendant, which it was not.

The absence of the State of New York from the instant action at any phase of the case, as well as the inability of the State to be held liable under plaintiffs' asserted causes of action, also distinguishes the instant case from McDermott, Inc. v. AmClyde , 511 U.S. 202, 205–06, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994) on which the dissent relies. In McDermott , the jury considered the fault of and apportioned damages between all parties to the action, including the petitioner and a group of defendants with which the petitioner had already settled, who had all been sued under the same causes of action. Id. Here, in contrast, the jury never considered what fault, if any, it might have attributed to the State. This is in part because the State could not have been held liable under the causes of action presented to the jury, and in part because the liability-phase jury verdict sheet in the instant trial shows that only the liability of Volpe and Fraas was considered by the jury, not the liability of either the State of New York or of Nassau County (which would have been a proper defendant). See Supp. App'x at 1332-33. Further, once the jury had found at the liability phase that only Volpe was liable to Restivo and Halstead, then, at the damages phase, all that the jury considered was the amount of damages that Volpe, as an individual , owed to Restivo and Halstead as a result of their eighteen-year incarceration. See Supp. App'x at 1528. Thus, the dissent's background rule of no double recovery for Section 1983 and state-law claims arising out of the same operative facts, or even the rule that defendants' share of damages may be reduced by those of settling defendants, has no application to the instant facts where the settling party was not a proper defendant under Section 1983, never admitted liability, and was wholly absent from the trial. On this issue, federal law is deficient.

Third and lastly, the dissent also posits that federal common law barring double recovery in order to ensure that the victim does not receive more than he or she lost is applicable here. See United States v. Nucci , 364 F.3d 419, 423 (2d Cir. 2004). We disagree. Nucci , emblematic of this line of cases, based its holding in part on the observation that the "effect of joint liability in a tort context is to excuse one defendant from paying any portion of the judgment if the plaintiff collects the full amount from the other." Id. (internal quotation marks omitted). This holding, however, is based on the premise that there is a known "full amount" of loss to be reimbursed through restitution. There is no known full amount of loss here. The jury's determination that Volpe owed Restivo and Halstead each $18 million is not the same as finding that the total amount of damages that Restivo and Halstead were owed for the eighteen years each spent in prison was $18 million. Instead, the jury could have determined that that was the amount which Volpe alone owed each man under Section 1983 . Since there is no way to know the amount of Restivo and Halstead's "loss," it is inappropriate to apply rules ensuring an individual does not recover in tort or after a criminal case more than he "lost" where one defendant is neither included in the trial nor could be held liable under the same cause of action as the one on which the jury based its damages award.

Accordingly, we hold that federal law is deficient with respect to a scenario in which an absent settling party settles a claim distinct from the claim which is sent to the jury, the jury was never asked to consider or determine the liability of the absent settling party, and the full amount of loss is unknowable.

Finding federal law deficient on this point, we turn to New York state law and the question whether New York law is inconsistent with federal policy underlying Section 1983. See Robertson , 436 U.S. at 590, 98 S.Ct. 1991 ("In resolving questions of inconsistency between state and federal law raised under [Section] 1988, courts must look not only at particular federal statutes and constitutional provisions, but also at ‘the policies expressed in [them].’ " (alteration in original) (quoting Sullivan v. Little Hunting Park, Inc. , 396 U.S. 229, 240, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) )). New York General Obligations Law Section 15-108 provides:

When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or

wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest.

N.Y. Gen. Oblig. Law § 15–108(a). This law, which provides for either a pro tanto (dollar for dollar) setoff or a setoff of the settling tortfeasor's equitable share of damages, whichever is greater, is inconsistent with federal policy underlying Section 1983.

"The legislative history of [Section] 1983... demonstrates that it was intended to create a species of tort liability in favor of persons who are deprived of rights, privileges, or immunities secured to them by the Constitution." Carey v. Piphus , 435 U.S. 247, 253, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (alteration and internal quotation marks omitted); see also Hardin v. Straub , 490 U.S. 536, 539 n.5, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989). "Thus, [Section] 1983 addresses constitutional principles that reach profoundly to the core of our notion of justice and underpin our legal system's groundings on the rule of law." Banks ex rel. Banks v. Yokemick , 177 F.Supp.2d 239, 260 (S.D.N.Y. 2001). Accordingly, the policies underlying Section 1983 include not only compensation of injured parties, but also "deterrence of future abuses of power by persons acting under color of state law." City of Newport v. Fact Concerts, Inc. , 453 U.S. 247, 268, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) ; see also Owen v. City of Independence , 445 U.S. 622, 651, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) ("[Section] 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well."); Robertson , 436 U.S. at 590–91, 98 S.Ct. 1991 ("The policies underlying [Section] 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law."); Ciraolo v. City of New York , 216 F.3d 236, 243 (2d Cir. 2000) (Calabresi, J. , concurring) (noting that Section 1983 was "designed to deter constitutional torts by making the tortfeasors liable in damages to their victims"); Weaver v. Brenner , 40 F.3d 527, 532 (2d Cir. 1994) ("The goal of [Section] 1983 is to deter public officials from violating citizens' federal rights and to compensate victims of such official wrongdoing."); Dobson , 705 F.2d at 765 (" Section 1983... embodies two policies: compensation of plaintiffs and deterrence of wrongdoers."). The deterrence goal of Section 1983 is best served by "internalizing to the violator the costs of violating federal rights." Dobson , 705 F.2d at 765 ; see also Ciraolo , 216 F.3d at 243 (Calabresi, J. , concurring) (discussing the importance of a wrongdoer internalizing the costs of his conduct to effectively deter future conduct). Moreover, "[a] rule that removes the burden of damages from the wrongdoer certainly conflicts with the policy of deterrence." Dobson , 704 F.2d at 766.

By contrast, New York General Obligation Law Section 15–108(a) has "two purposes: first, to encourage settlements, and, second, to ensure that nonsettling tortfeasors are not required to bear more than their equitable share of liability." Apple v. Jewish Hosp. & Med. Ctr. , 829 F.2d 326, 331 (2d Cir. 1987) (citation omitted). "At its most basic level, the driving force embodied in G.O.L. [Section] 15–108 is that of ensuring the compensation of victims while preventing their unjust enrichment." Banks , 177 F.Supp.2d at 260. "[T]he statute, in the interest of minimizing the potential for over-compensation, fosters equitable, financial and judicial economy policies that appear to convey more solicitude towards fairness to the nonsettling tortfeasor than to the injured party." Id.

The New York rule is inconsistent with the deterrent goal of Section 1983, as it allows nonsettling tortfeasors to bear less than the full cost of the harm they inflicted if settling tortfeasors settle for more than their proportional share of liability. "A rule that removes the burden of damages from the wrongdoer certainly conflicts with the policy of deterrence," and "[w]e must always be conscious that one of the functions of section 1983, if not the primary function, is therapeutic, seeking to eradicate the disease of violations of federal rights under color of state law." Dobson , 705 F.2d at 766. The district court was therefore correct in not applying the New York rule in determining whether Volpe was entitled to a setoff. See id. (holding that a pro tanto setoff provision under state law "would contravene the deterrence policy of section 1983, and thus is impermissible under section 1988"); Banks , 177 F.Supp.2d at 261 (holding that G.O.L. Section 15–108 is inconsistent with federal policy because it "allow[s] the nonsettling wrongdoer full credit for the amount others paid, thereby entirely relieving him from any obligation to compensate the extent of the injuries he caused" and "effectuate [s] a windfall to the defendant" "in the name of avoiding unjust enrichment for the plaintiff").

Having concluded that state law is inconsistent with federal policy, we now assess whether the district court was correct in applying a policy of proportional reduction based on the nonsettling party's proportionate share of liability. "Elemental notions of fairness dictate that one who causes a loss should bear the loss." Owen v. City of Independence , 445 U.S. 622, 654, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) ; see also Dobson , 705 F.2d at 769 ("The fairness of a tortfeasor paying an injured party rests not solely on the fact that the injured party deserves compensation, but also on the fact that the tortfeasor deserves to pay."). It follows therefore, that a nonsettling party is entitled to a setoff only of a settling tortfeasor's proportionate fault. See McDermott , 511 U.S. at 204, 114 S.Ct. 1461 (holding, under federal common law in admiralty suit, that the liability of the nonsettling defendants should be calculated with reference to the jury's allocation of proportionate responsibility, not a dollar for dollar setoff); Dobson , 705 F.2d at 767 ; Banks , 177 F.Supp.2d at 263–64.

V. Remittitur Motion

Volpe next argues that the jury award was excessive. Following the trial, the district court denied Volpe's motion for remittitur, reasoning that the award was reasonable under either the federal standard or the state standard. The federal standard provides that "we may set aside a jury's award only if it is so high as to shock the judicial conscience and constitute a denial of justice." Zeno v. Pine Plains Cent. Sch. Dist. , 702 F.3d 655, 671 (2d Cir. 2012) (internal quotation marks omitted). By contrast, New York state law provides that an appellate court "shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation." N.Y. C.P.L.R. § 5501(c). Although a federal district court sitting in diversity considering a jury award for a claim under New York law must apply the state law standard of review, see Gasperini v. Ctr. for Humanities, Inc. , 518 U.S. 415, 437–38, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), district courts within this circuit have differed in their approach for reviewing jury awards based on both state law and federal law claims. Compare, e.g. , Abel v. Town Sports Int'l, LLC , No. 09 Civ. 10388, 2012 WL 6720919, at *14 (S.D.N.Y. Dec. 18, 2012) ("As the jury in this case made its award under both federal and state law, and as the successful plaintiff should be paid under the theory of liability that provides the most complete recovery, the Court reviews the award under the federal standard." (citations, alteration, and internal quotation marks omitted)), with Mason v. City of New York , 949 F.Supp. 1068, 1075 (S.D.N.Y. 1996) ("Because the jury awarded lump sum damages encompassing both the federal and state claims, the Court must determine excessiveness under both federal and state law."). Because the result is the same whether we apply the state standard or the federal standard, we need not decide this issue here.

"We have long held that, when damages are awarded, calculation of damages is the province of the jury." Zeno , 702 F.3d at 671 (internal quotation marks omitted). Therefore, "in reviewing damages awards, we accord considerable deference to the factual findings of both judge and jury. Although a review of comparable cases is appropriate, we need not average the high and low awards; we focus instead on whether the verdict lies within the reasonable range." Id. (citation, alterations, and internal quotation marks omitted). "This Court's function upon review of the district court's decision is limited to determining whether the district court abused its discretion." Patterson , 440 F.3d at 119-20.

VI. Attorneys' Fees

Finally, Volpe argues that the district court's award of $4,997,914.55 in attorneys' fees to plaintiffs' attorneys from the law firm Neufeld Scheck & Brustin, LLP ("NSB") should be reduced to no more than $3,000,000. As discussed above, the district court compensated NSB attorneys at the Southern District of New York rates they had proposed, ranging from $250 an hour to $700 an hour for attorneys, and $125 an hour for paralegals, for 11,222.6 hours of attorney and paralegal work.

Section 1988(b) of Title 42 provides that, as is relevant here, in actions brought to enforce Section 1983, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." "[A] ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case." Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 552, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). The district court here derived the fee award through application of the lodestar method, multiplying the number of hours the court found that NSB attorneys reasonably spent litigating the case by hourly rates it found reasonable. The Supreme Court has held that "the lodestar method yields a fee that is presumptively sufficient to achieve [the] objective" of Section 1988(b). Id. ; see also Stanczyk v. City of New York , 752 F.3d 273, 284 (2d Cir. 2014). Volpe does not contest the method by which the court calculated attorneys' fees, but contends that both the hourly rates and the number of hours reimbursed were excessive.

The Supreme Court has emphasized that "the determination of fees ‘should not result in a second major litigation.’ " Fox v. Vice , 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011) (quoting Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ). Instead, it has instructed:

The fee applicant ... must, of course, submit appropriate documentation to meet the burden of establishing entitlement to an award. But trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees ... is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.

Id. (citations and internal quotation marks omitted).

Further, our review of the district court's fee award is limited and deferential, as we review only for abuse of discretion. See id. ("[A]ppellate courts must give substantial deference to these determinations [regarding fee awards], in light of the district court's superior understanding of the litigation. We can hardly think of a sphere of judicial decisionmaking in which appellate micromanagement has less to recommend it." (internal quotation marks and citations omitted)); Merck Eprova AG v. Gnosis S.p.A. , 760 F.3d 247, 265–66 (2d Cir. 2014) ("Given the district court's inherent institutional advantages in this area, our review of a district court's fee award is highly deferential." (internal quotation marks omitted)). "Indeed ‘abuse of discretion’—already one of the most deferential standards of review—takes on special significance when reviewing fee decisions." Goldberger v. Integrated Res., Inc. , 209 F.3d 43, 47 (2d Cir. 2000). The district court has presided from the filing of the complaint in 2008 until the appeal was filed at the end of 2014, overseeing two trials, a lengthy Daubert hearing, and numerous pre- and post-trial motions, and clearly has an intimate familiarity with the record and lawyering of this case; as such, we should be especially deferential to the district court's findings with respect to the reasonableness of attorneys' fees. Bearing in mind this background, we turn to Volpe's arguments regarding the district court's fee award.

A. Hourly Rates

First, Volpe contends that the district court erred in awarding attorneys' fees based on the higher rates typical of the Southern District of New York, where NSB is located, rather than the slightly lower rates awarded in the Eastern District of New York, where the case was tried.

When determining attorneys' fees under the lodestar approach, courts apply the forum rule. "According to the forum rule, courts should generally use the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee." Simmons v. N.Y.C. Transit Auth. , 575 F.3d 170, 174 (2d Cir. 2009) (internal quotation marks omitted); see also Gierlinger v. Gleason , 160 F.3d 858, 882 (2d Cir. 1998) (providing that, in calculating the lodestar amount, the rates used generally "are the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation" (internal quotation marks omitted)). "[I]n order to receive an attorney's fee award based on higher out-of-district rates, a litigant must overcome a presumption in favor of the forum rule, by persuasively establishing that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result." Simmons , 575 F.3d at 172 ; see also id. at 174 ("The court may apply an out-of-district rate (or some other rate, based on the aforementioned case-specific variables) if, in calculating the presumptively reasonable fee, it is clear that a reasonable, paying client would have paid those higher rates." (alterations and internal quotation marks omitted)). Indeed, the "touchstone" of the forum rule doctrine, as well as for awarding attorneys' fees in civil rights cases, is that "district courts should award fees just high enough to attract competent counsel." Id. at 176 (some internal quotation marks omitted) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany , 493 F.3d 110, 121 (2d Cir. 2007), amended on other grounds , 522 F.3d 182 (2d Cir. 2008), and 575 F.3d 170 (2d Cir. 2009). Therefore, to rebut the presumption that the forum rule applies, the party seeking higher fees "must make a particularized showing, not only that the selection of out-of-district counsel was predicated on experience-based, objective factors, but also of the likelihood that use of in-district counsel would produce a substantially inferior result." Id. Relevant factors include whether counsel has "special expertise in litigating the particular type of case, if the case is of such nature as to benefit from special expertise," whether any "in-district counsel possessed such expertise," and whether "local counsel possessing requisite experience were unwilling or unable to take the case." Id. at 175–76.

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Case details for

Restivo v. Hessemann

Case Details

Full title:John RESTIVO, Dennis Halstead, Plaintiffs-Appellees, v. Carolann…

Court:United States Court of Appeals, Second Circuit.

Date published: Jan 19, 2017


846 F.3d 547 (2d Cir. 2017)

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