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Jennings v. Fuller

United States District Court, E.D. Michigan, Southern Division

May 23, 2017

WILLIAM JENNINGS, Plaintiff,
v.
PATRICK FULLER, ROBERT NUCKOLLS, DAVID KENAMER, MARK WING and JASON WHITE, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' POST-TRIAL MOTIONS FOR NEW TRIAL AND JUDGMENT AS A MATTER OF LAW AND GRANTING DEFENDANTS' MOTIONS FOR A REMITTITUR OF COMPENSATORY AND PUNITIVE DAMAGES

          AVERN COHN, UNITED STATES DISTRICT JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ...................................................................................................... 1

         A. The Case and Disposition ............................................................................... 1

         B. Pretrial ............................................................................................................... 1

         C. Trial ................................................................................................................... 2

         D. Verdict Form and Jury Instructions ................................................................ 4

         E. Jury Verdict and Judgment ................................................................................ 6

         II. POST-TRIAL MOTIONS .......................................................................................... 6

         A. Motions ............................................................................................................. 6

         B. Remittitur .......................................................................................................... 7

         III. TRIAL EVIDENCE ................................................................................................ 8

         A. Description of Incident .................................................................................... 8

         B. Events at Jail .................................................................................................... 9

         1. Phase 1: Intake Room (two minutes) .......................................................... 9

         2. Phase 2: Sally Port and Hallway I (one minute) ........................................ 10

         3. Phase 3: Safety Cell I (one minute) ........................................................... 11

         4. Phase 4: Hallway II (twelve minutes) ......................................................... 11

         5. Phase 5: Safety Cell II (two and a half hours) ........................................... 13

         6. Phase 6: Continued Detention and Release (four hours) ........................ 15

         C. Injuries ............................................................................................................ 15

         1. Facial ............................................................................................................ 15

         2. Shoulder ...................................................................................................... 16

         3. Eye ............................................................................................................... 16

         4. Mental .......................................................................................................... 17

         5. Other ............................................................................................................ 17

         6. Continued Pain and Suffering ................................................................... 17

         7. Defense Medical Experts ............................................................................ 18

         8. Lack of Continued Treatment .................................................................... 18

         IV. MOTIONS FOR NEW TRIAL, JMOL AND REMITTITUR ................................... 18

         A. Summary ......................................................................................................... 18

         1. New Trial ...................................................................................................... 18

         2. JMOL ............................................................................................................ 18

         3. Remittitur ..................................................................................................... 19

         4. No Specified Amount .................................................................................. 19

         B. Legal Standards ............................................................................................. 19

         1. New Trial ...................................................................................................... 19

         2. JMOL ............................................................................................................ 20

         3. Remittitur ..................................................................................................... 20

         V. IMPROPER EVIDENTIARY RULINGS AS THE BASIS FOR A NEW TRIAL ........ 20

         A. Use of Force Policies ..................................................................................... 21

         B. Ross's Opinions ............................................................................................. 22

         C. Glaza - Video .................................................................................................. 22

         VI. IMPROPER VERDICT FORM AND JURY INSTRUCTIONS AS THE BASIS FOR A NEW TRIAL ............................................. 24

         VII. IMPROPER ARGUMENT OF COUNSEL AS THE BASIS FOR A NEW TRIAL ................ 25

         VIII. QUALIFIED IMMUNITY AS THE BASIS FOR A JMOL ..................................... 26

         IX. EXCESSIVE COMPENSATORY DAMAGES AS THE BASIS FOR A NEW TRIAL OR, IN THE ALTERNATIVE, REMITTITUR ...................................................... 26

         A. New Trial Versus Remittitur .......................................................................... 26

         B. New Trial ......................................................................................................... 28

         C. Remittitur ........................................................................................................ 29

         X. ATTACK ON THE AWARD OF PUNITIVE DAMAGES ......................................... 31

         A. The Award of Punitive Damages as the Basis for a JMOL ......................... 32

         1. Relevant Law ............................................................................................... 32

         2. Defendants' Arguments ............................................................................. 32

         3. Conduct of Defendants .............................................................................. 33

         a. Nuckolls ....................................................................................................... 33

         b. Fuller ............................................................................................................ 33

         c. Kenamer ...................................................................................................... 34

         d. Wing ............................................................................................................. 34

         e. White ............................................................................................................ 35

         B. Excessive Punitive Damages as the Basis for a New Trial ......................... 35

         C. Excessive Punitive Damages as the Basis for a Remittitur ........................ 36

         XI. DEFENDANTS' ABILITY TO PAY ...................................................................... 38

         XII. CONCLUSION .................................................................................................... 39

         I. INTRODUCTION

         A. The Case and Disposition

         This is a 42 U.S.C. § 1983 excessive force case. William Jennings (Jennings), age 43, sued Robert Nuckolls (Nuckolls), Patrick Fuller (Fuller), David Kenamer (Kenamer), Mark Wing (Wing) and Jason White (White) all employed by the Genesee County Sheriff's Department (Department), for mistreatment while in their custody at the Genesee County Jail on September 18-19, 2010 after being arrested for drunk driving.

         For the reasons which follow, the defendants' motions for a new trial and judgment as a matter of law (JMOL) are DENIED. Defendants' motions for a remittitur of compensatory and punitive damages are GRANTED. See pp. 7-8.

         B. Pretrial

         Defendants previously moved for summary judgment and dismissal based on qualified immunity. The Court denied the motion, Jennings v. Fuller, 2015 WL 4075057 (E.D. Mich. 2015), (Doc. 51). On appeal, the Sixth Circuit affirmed. Jennings v. Fuller, 659 F. App'x 867 (6th Cir. 2016), (Doc. 89). The Sixth Circuit decision denying qualified immunity is a condensed version of what occurred in the Genesee County Jail on the night in question.

         At the final pretrial conference on October 18, 2016, the parties were given copies of a draft verdict form and jury instructions based on their submissions to the Court. (Doc. 128 at 4). They were told to review these papers during the course of the trial. (Id.). This was the first time the parties were given copies and told of their opportunity to object. See below for further occasions. See pp. 3-4.

         Before trial, defendants filed motions in limine which the Court ruled on as follows:

• Doc. 109 - Memorandum and Order Denying Defendants' Motion for Apportionment of Liability and Damages, and
• Doc. 112 - Order Relating to Motions In Limine (denying in relevant part defendants' motion to preclude use of force policies (Doc. 73))

         The Court denied the motion to apportion liability and damages because defendants' conduct was a continuous stream of activity producing an indivisible harm in which each defendant's actions was a substantial factor, (Doc. 109 at 3). The Court granted in part and denied in part the motion to preclude in evidence the Sheriff's Department policies on use of force. (Doc. 112 at 1). Specifically, the Court permitted witnesses to be examined as to portions relating to the use of pepper spray, tasers and restraints. (Id.).

         C. Trial

         The case went on to a 12-day jury trial, extending from October 19 to November 2, 2016, on liability and damages. The events at the jail were reflected in a video obtained from surveillance cameras inside the jail. At trial, in addition to testimony from Jennings and the defendants, [1] the jury heard from nine witnesses called by Jennings:

• Kenneth Glaza (a forensic video expert) - qualified as expert; testified as to his interpretation of contents of the video;
• William Katsaris (Jennings's expert on police practices) - qualified as expert; testified as to his interpretation of officers' actions in the video;
• Dale Hanson (Jennings's treating physician) - testified as to his medical treatment of Jennings;
• John Waters (Jennings's treating ophthalmologist) - testified as to his medical treatment of Jennings;
• Gerald Shiener (Jennings's examining psychiatrist) - qualified as expert; testified as to his mental examination of Jennings and officers' actions in the video;
• Magdalena Jennings (Jennings's mother) - testified as to her interactions with Jennings and the impact of the incident on him personally;
• Sharon Jankowski (Jennings's girlfriend, mother of child) - testified as to her interactions with Jennings and the impact of the incident on him personally;
• Stephanie Tompkins (a nurse at the jail during the incident) -testified as to her physical examination of Jennings at the jail; and
• Francis Hartner (Flint Township Police and arresting officer) -testified as to his observations of Jennings in arresting him and in the intake room

         At the close of Jennings's case in chief, defendants moved for JMOL under Fed.R.Civ.P. 50(a) based on qualified immunity. (Doc. 115 at 6-9). The Court denied the motion. (Doc. 138 at 19).

         The Court discussed with the parties the draft of the verdict form and jury instructions at the close of the case in chief. (Id. at 123-24). The parties were told to raise any objections in writing by the next day, with proposed additions, deletions or modifications redlined. (Id.). Neither party raised an objection. (Docs. 139, 140).

         The jury heard from four witnesses called by defendants:

• Darrell Ross (defendants' expert on police practices) - qualified as expert; testified as to defendants' actions in the video;
• William Kohen (defendants' expert orthopedist) - qualified as expert; opined as to Jennings's claimed shoulder injury from defendants' acts;
• Thomas Byrd (defendants' expert ophthalmologist) - qualified as expert; opined as to Jennings's claimed cataract injury from defendants' acts; and
• Kirk Stucky (defendants' expert psychologist) - qualified as expert; opined as to Jennings's claimed PTSD injury from defendants' acts

         At the close of evidence, the Court gave another draft of the verdict form and jury instructions to each party. (Doc. 140 at 3). No objection was raised. (Id.).

         D. Verdict Form and Jury Instructions

         Defendants contest details of the verdict form and jury instructions. The verdict form is attached, Exhibit A, and the relevant jury instructions are set out below.

         Prior to final argument, the Court distributed a copy of the verdict form to each juror and acquainted the jury with it. (Id. at 9-11). Liability was to be considered separately as to each defendant. Compensatory damages were to be assessed in the collective. Punitive damages were to be assessed separately as to each defendant.

         After final argument, a copy of the jury instructions was given to each juror. (Id. at 70-91). As to the use of excessive force and compensatory damages, the Court said in part:

Under the Fourth Amendment of the Constitution of the United States, every citizen has a right to be free from unreasonable search and seizure, which includes the right to be free from excessive use of force or unlawful force . . . .
. . . The use of force is considered a seizure under the Fourth Amendment. You must keep this in mind when I use the term "excessive force[”] . . . or “unlawful force” in these instructions. . . .
There is no precise definition or formula available for determining whether the force is unlawful in a particular case. In determining whether a defendant used unlawful force, the relationship between the need and the amount of force that was used, whether the person poses an immediate threat to the safety of a defendant or others, and whether he is actively resisting detention. . . .
Whether the force used by a defendant was reasonable must be judged from the perspective of an objectively reasonable law enforcement officer. It is your decision what force a reasonable law enforcement officer would have used which controls, not the state of mind of a defendant himself. . . .
Damages must be reasonable. If you should find that William Jennings is entitled to a verdict, you may award William Jennings only such damages as will reasonably compensate William Jennings for such injury and damage as you find was sustained as a proximate result of a defendant's acts or omissions. . . .
You are not permitted to award speculative damages. So you are not to include in any verdict compensation for such prospective loss which, although possible, is not reasonably certain to occur in the future. . . .
No evidence of the value of such intangible things as mental or physical pain and suffering has been or need be introduced in that respect. It is not the value you are trying to determine, but an amount that will fairly compensate William Jennings for the damage he has suffered. There is no exact standard of fixing compensation to be awarded on account of such elements of damage. Any such award should be fair and just in light of the evidence.

(Id. at 81-83, 85-86). As to punitive damages, the Court said in part:

In addition to actual damages, the law permit[s] the jury under certain circumstances to award the injured person punitive damages in order to punish the wrongdoer for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct.
If you find from a preponderance of the evidence that William Jennings is entitled to a verdict for compensatory damages and you further find that the act or omission of a defendant proximately causing actual injury or damage to William Jennings was maliciously or wantonly or oppressively done, then you may add to the award of actual damages such amount as you shall agree to be proper as punitive damages. . . .
Whether or not to make an award of punitive damages in addition to actual damages is a matter exclusively within the province of the jury if you find from a preponderance of the evidence in the case that a defendant's act or omission which proximately caused actual damage to William Jennings was maliciously or wantonly or oppressively done. . . .
You should also bear in mind not only the conditions under which and the purposes for which the law permits an award of punitive damages to be made but also the requirement of the law that the amount of such extraordinary damages when awarded must be fixed with calm discretion and sound reason and must never be either awarded or fixed in an amount because of any sympathy or bias or prejudice with respect to any party in the case.

(Id. at 86-88).

         E. Jury Verdict and Judgment

The jury returned a verdict, (Doc. 119), finding each of the defendants liable and awarded an aggregate of $36.63 million in damages, broken down as follows:

Compensatory:

Punitive:

• $10.42 million (past and present)

• $5 million (Nuckolls)

• $7.21 million (future)

• $5 million (Fuller)

• $4 million (Kenamer)

TOTAL: $17.63 million

• $3 million Wing)

• $2 million (White)

TOTAL: $19 million

         The Court entered a judgment reflecting the verdict, (Docs. 122, 153).

         II. POST-TRIAL MOTIONS

         A. Motions

         Defendants have filed nine post-trial motions as follows:

• Doc. 142 - Motion for New Trial Based on Evidentiary Rulings [See Part V, infra]
• Doc. 150 - Motion for New Trial Based on Improper Verdict Form, Improper Standards and Improper Argument of Counsel [See Parts VI-VII, infra]
• Doc. 143 - Motion for JMOL Based on Qualified Immunity [See Part VIII, infra]
• Doc. 144 - Motion for New Trial or, Alternatively, Remittitur Based on Excessive Compensatory Damages [See Part IX, infra]
• Doc. 149 - Motion for New Trial, JMOL or Alternatively Remittitur Based on Excessive Punitive Damages as to Nuckolls [See Part X, infra]
• Doc. 145 - Motion for New Trial, JMOL or Alternatively Remittitur Based on Excessive Punitive Damages as to Fuller [See Part X, infra]
• Doc. 147 - Motion for New Trial, JMOL or Alternatively Remittitur Based on Excessive Punitive Damages as to Kenamer [See Part X, infra]
• Doc. 148 - Motion for New Trial, JMOL or Alternatively Remittitur Based on Excessive Punitive Damages as to Wing [See Part X, infra], and
• Doc. 146 - Motion for New Trial, JMOL or Alternatively Remittitur Based on Excessive Punitive Damages as to White [See Part X, infra]

         Jennings responded, (Docs. 165-66, 168-74). Defendants replied, (Docs. 178-82).[2]

         B. Remittitur

         The Court suggests a remittitur of $12.63 million as to compensatory damages, reducing the award from $17.63 million to $5 million, and a remittitur of ...


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