Opinion
Civil No. 06-1548 (RHK/JSM).
December 18, 2007
ORDER
This matter is before the Court on Defendants' Motion to Strike (Doc. No. 162), which the Court previously denied by Order dated November 20, 2007 (Doc. No. 165). All parties having consented to the relief requested in the Motion, IT IS ORDERED as follows:
1. The Court's November 20, 2007 Order (Doc. No. 165) denying the Motion to Strike is VACATED;
2. The Motion to Strike (Doc. No. 162) is GRANTED; and
3. The Clerk of the Court is DIRECTED to remove the Affidavit of Linda Loomis (Doc. No. 159) from the docket in this matter. The Clerk of the Court is further DIRECTED to remove Defendants' Reply Memorandum (Doc. No. 158) from the docket in this matter and replace it with the Reply Memorandum attached hereto (which was attached as an Exhibit to Defendants' Memorandum in Support of the Motion to Strike). DEFENDANTS' REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR NEW TRIAL OR IN THE ALTERNATIVE REMITTITUR
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Aljuan C. Hixon, Case No. 06-Civil-1548 Plaintiff, vs. City of Golden Valley and , Mario Hernandez, Defendants.ARGUMENT
I. Evidence Of Racial Discrimination Was Improperly Allowed.
Defendants were significantly prejudiced by the emphasis of race at trial. See, Sanders-El v. Wencewicz, 987 F.2d 483, 484 (8th Cir. 1993) (claim by black plaintiff against white police officers where credibility is at issue highlights significance of prejudice). Plaintiff claims he did not "Play the Race Card." The bulk of his argument was the evidence of a black male robbery suspect was essential to credibility in this case. Both Plaintiff and Ginny Jacobs testified Plaintiff was raised in Birmingham, Alabama during the height of the civil rights movement. Jacobs explained Plaintiff was a young black man in the segregated south who was taught to comply with police. Plaintiff's counsel in his closing stated, "you know far well what was going on in Birmingham." Plaintiff testified in the squad car, he stated, "If this is a Black thing, you have the wrong guy." Substantial time was also spent on the fact of a white bank robber and whether the officers knew a black male was associated with the getaway van.Contrary to Plaintiff's claim he did not imply racism, the cumulative effect of this evidence was highly prejudicial as it implied Officer Hernandez' actions were racially motivated, when the only issue before the jury was whether the officer(s) used excessive force in detaining and arresting Plaintiff. As in Sanders-El, the credibility of witnesses was at issue and this highlighted the significance of the prejudice. Furthermore, a curative instruction, if allowed, could have prevented this prejudice.
II. Plaintiff Was Improperly Allowed To Submit Good Character Evidence.
Plaintiff apparently claims because he was precluded from introducing all the evidence he wanted regarding his character, there was no error requiring a new trial. Under Federal Rule of Evidence 404(a), evidence of a person's character or trait of character is not admissible for purposes of proving action in conformity therewith on a particular occasion.
Plaintiff claims Jacobs' testimony that he grew up in the segregated south and was taught to comply with police was unprovoked, stricken and harmless. Plaintiff's counsel had a duty to advise his expert to refrain from improper character testimony excluded by the Court and he failed to do so. Counsel highlighted in his closing there was no negative character evidence of Plaintiff. He also improperly referred to Jacobs' improper character testimony by saying, "an upbringing is something that stays with you; you cannot change your upbringing." The introduction of this improper evidence was compounded because Defendants were precluded from rebutting this evidence.
III. Evidence Regarding Criminal Charges Was Improper and Prejudicial.
Plaintiff relied on the charges in presenting his case. See Pl.'s Memo. p. 7. Plaintiff also improperly implied a "cover-up" stating, "Defendants' bad-faith efforts to charge Plaintiff with a crime he never committed constituted a deliberate cover-up of their unwarranted use of force toward Plaintiff." Id. pp. 17-18. Evidence implying Officer Hernandez charged Plaintiff in bad faith and implying a "cover-up" was irrelevant to the force issue. This clearly confused the jury because there was a lawful arrest and complicated a simple issue: whether the use of force was reasonable. A new trial is warranted to provide Officer Hernandez a fair trial involving the only issue the jury should have considered — whether the force used to effectuate a lawful arrest, was excessive.
IV. Plaintiff's Experts Testified Without Proper Disclosure or Foundation.
Plaintiff failed to address a central issue in this motion: that his experts testified without foundation. His experts did not meet the Daubert requirements because their opinion was based on Plaintiff's perception of events. Dr. Shirriff had no foundation to discuss testing done by Dr. Johnston because he is neither an expert on nor familiar with MMPIs. Without foundation, or medical support, Jacobs testified she believed Plaintiff had a brain injury from lack of oxygen. Plaintiff claims Defendants are estopped from presenting this argument because an objection was not raised at trial. If an objection is not raised at the time of testimony, the court reviews the testimony under the plain error standard. U.S. v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988). "The plain error rule connotes error that has affected a defendant's substantial rights, resulting in a miscarriage of justice." Id. "The error is prejudicial unless the reviewing court can say with fair assurance that the judgment of the jury was not swayed by the error." Kotteakos v. United States, 328 U.S. 750, 765 (1946). "The crucial thing is the impact of the thing done wrong on the minds of other men, not on one's own, in the total setting. This must take account of what the error meant to them, not singled out and standing alone, but in relation to all else that happened." Id. at 764.
The jury clearly relied on Jacobs' testimony that Plaintiff's quality of life may never be the same because of the traumatic brain injury in finding substantial compensatory damages. The cumulative result of the prejudicial evidence was an excessive verdict and punitive damage award unsupported by the evidence. Additionally, in pre-trial motions, defendants argued Jacobs' lack of disclosure precluded her offering expert opinions.
V. Remittitur is Appropriate to Correct the Excessive Jury Award.
This is a case where the verdict is so grossly excessive as to shock the conscience of the court. See, Eich v. Bd. of Regents for Cent. Missouri State Univ., 350 F.3d 752, 763 (8th Cir. 2003). Plaintiff failed to cite any authority to support a verdict of this amount for PTSD injuries in a § 1983 case. The award represents more than 40 times the actual damages claimed (some caused by Officer McCarville who was exonerated).
Additionally, the punitive damage award is the result of passion and prejudice. The Court looks to the reasonableness of a punitive damage award including the reprehensibility of the defendant's conduct, and the ratio between actual harm inflicted and the punitive damage award. Thorne v. Welk Inv., Inc., 197 F.3d 1212 (8th Cir. 1999). The punitive damage award is over 58 times the claimed actual damages. The jury was influenced by improper evidence and arguments which led to its extreme punitive damage award.
There was no evidence Officer Hernandez used pepper spray with intent to harm. Under Stogsdill v. Healthmark Partners, L.L.D., 377 F.3d 827, 833 (8th Cir. 2004), consideration of punishing individuals other than the Defendants is improper and reflects bias. Plaintiff emphasized the dropping of his charges, alleged denial of medical care (which the Court dismissed) and Sgt. Arons' testimony he was proud of his officers' actions as evidence of malicious conduct. Pl.'s Memo. pp. 26-28. This is clearly improper and prejudicial under Stogsdill. The punitive damage award was excessive and the result of passion and prejudice.