$1.50 million verdict for pain and suffering reduced to $50,000

The jury enters its verdict and everyone goes home. Except for the lawyers, the parties, and the judge. The jury goes home, unaware that the case will continue as the losing side petitions the court to ether vacate the verdict entirely or reduce the damages award. This case is a good example.

The case is White v. New York State Office of Children and Family Services, 2021 WL 282561 (N.D.N.Y. Jan. 28, 2021), a racial discrimination case brought under Title VII, in which the jury awarded plaintiff $1.5 million in pain and suffering, $183,000 in back pay and another $30,000 in lost pension income. What stands out is the pain and suffering award, for two reasons: first, Northern District juries usually do not award large damages awards like this, and second, lets face it - that's a lot of money for pain and suffering. Very few single-plaintiff seven-figure verdicts have survived in the Second Circuit.

The State asked the trial court to vacate the verdict entirely. Judge Scullin will not do so, noting that while the court "may weigh the evidence and the credibility of witnesses and need not view the evidence in the light most favorable to the verdict winner," "this is not a permission slip to ignore the jury's role in resolving factual disputes and assessing witness credibility." Moreover, "a court may only grant a motion for a new trial if the jury has reached a seriously erroneous result or [its] verdict is a miscarriage of justice." The court does not get into the facts here, but the judge finds there was enough evidence of racial discrimination to support the verdict.

Post trial, the State also asked Judge Scullin to reduce the damages. Initially, the pain and suffering award is immediately reduced to $300,000, the cap under Title VII. But that does not end the analysis. The State argues that even $300,000 is too much for the plaintiff, based on his actual evidence of pain and suffering. 

The trial court thus reviews verdicts over the last 10 years to gain a sense of the going  rate for so-called "garden-variety" pain and suffering cases, where the plaintiff has not received extensive psychological treatment or suffered permanent emotional injuries. If you are looking for recent cases on the pain and suffering value of discrimination cases, this case provides a good summary. Judge Scullin concludes:

After reviewing the factual situations in all of the above-mentioned cases and comparing them to the facts in this case, the Court, applying the "least intrusive standard," concludes that $50,000 is the maximum amount that would compensate Plaintiff for his emotional injuries without being excessive. Therefore, the Court conditionally denies Defendant's motion for a new trial on the issue of compensatory damages on Plaintiff's accepting a remittitur of the compensatory damages award to $50,000.

Divided Court rejects inmate's medical treatment claim

You don't see too many claims alleging that prison officials were deliberately indifferent to the medical needs of inmates. These cases are hard to win. To bring a constitutional claim, the inmate needs to show the officials were deliberately indifferent, and not merely negligent, in their treatment. As I have learned from handling these cases, it is difficult to survive a motion to dismiss under Rule 12 because the inmates do not have medical information or expertise to prove it was deliberate indifference and not negligence. This is one of these cases, and plaintiff loses.

The case is Darby v. Greenman, issued on September 16. The plaintiff was an inmate at Rikers Island. He began to experience inflammation and pain in his right cheek area, and dental clinicians fond a 3x3 centimeter bulge in his gums. Two dentists saw plaintiff. The first, Greenman, recommended a tooth extraction, which plaintiff said was unnecessary. The pain persisted, and plaintiff continued to request dental treatment. He says no one responded to his requests. Another dentist, Hamilton, later treated plaintiff and performed a dental cleaning, even as plaintiff continued to complain about the significant pain in his mouth. Those complaints were ignored. 

This case was dismissed under Rule 12, which is pre-discovery, on the basis that plaintiff did not plead that the dentists were deliberately indifferent. The Supreme Court devised that standard for inmate medical treatment claims and, in doing so, said that mere negligence does not violate the constitution. But the difference between deliberate indifference and negligence is a fine one, and it is tough to allege the latter when the inmate may not have the medical records or the expertise to properly allege deliberate indifference and not just negligence. Hence the few cases in the Second Circuit where the inmate prevails.

Plaintiff loses against Greenman. The Court of Appeals (Cabranes and Park) says:

Darby  does  not  claim  that  Greenman  denied  him  treatment  but instead disagrees with Greenman’s assessment of the severity of his condition and recommendation for treatment. This constitutes, at most, a difference of opinion about the proper course of treatment; it does not demonstrate deliberate indifference to a substantial risk of harm to Darby’s health. Even assuming that Greenman’s proposed treatment was inadequate, “mere medical  malpractice  is  not  tantamount  to  deliberate  indifference”  absent  a showing of “conscious disregard of a substantial risk of serious harm.”Thus,  Darby  has  not  alleged  that  Greenman  acted  with  deliberate indifference under the Fourteenth Amendment.

We have a similar analysis as to Hamilton, who gave plaintiff a dental cleaning over his objections about the pain in  his gums. The Court sees this as an allegation that Hamilton were merely negligent.

Judge Carney dissents, noting that inmates in the U.S. often receive lousy dental treatment, citing studies and other lawsuits to that effect. She thinks plaintiff has sufficient plead a deliberate indifference claim. She sums up this way:

For over four months while incarcerated at Rikers Island, Darby experienced severe gum pain from an almost golf-ball sized abscess in his mouth. He had trouble sleeping, eating, and talking, and lost twenty pounds as a result. As we have commented before, “Any person who has spent a night tossing and turning in suffering from an abscessed tooth knows that dental pain can be excru[c]iatingly severe.” Although he saw two prison dentists and filed over 15 sick call requests that described his symptoms in detail, Darby received no real care for a condition that was eminently treatable by gum surgery. Instead, one dentist offered a tooth extraction; the other, a dental cleaning.

I am concerned that the Majority’s decision affirming the district court’s dismissal of Darby’s complaint may work to immunize the relevant prison officials from liability in Darby’s and in other cases. In my view, the course of events specifically alleged by Darby could—if borne out by evidence—reasonably support a determination that the officials and dentists were deliberately indifferent to his serious medical needs.

 

 

 

Trial court is where the action is

When a party loses at trial, the first instinct is to consider an appeal. Surely the Court of Appeals will see that I got an unfair trial right? Maybe not. The appellate courts don't like to second-guess juries, even if the plaintiff had a good case. Trial judges also have discretion to make certain rulings at trial.

The case is Aponte v. Kanbur, a summary order issued on August 30. This is a police misconduct case, an issue that creates strong emotions on all sides. The plaintiff knows that many jurors sympathize with the police and may even have a relative in law enforcement. But we also know that attitudes have changed over time and that the public is more aware of police misconduct than ever before. 

Against that backdrop, this case went to trial. Plaintiff says the officer, upon arriving at this residence for a domestic violence issue, used "a martial arts lock choke hold" against him, slammed him against the wall and strangled him -- all without any provocation. The jury entered a verdict for the police officer.

It is not enough to claim on appeal that you had better and more logical witnesses than the other side. Jurors decide credibility, not the Court of Appeals. The best way to challenge an adverse verdict is to claim the trial court made evidentiary errors and issued a bad jury instruction. That's what Aponte does here. But the Court of Appeals (Parker, Lynch and Bianco) upholds the verdict.

One issue is whether the trial court should have allowed plaintiff to tell the jury that the officer was arrested for domestic violence in a separate incident against his wife. The charges from that arrest were dismissed, and an internal affairs investigation examined the incident. No, the Court of Appeals says, this is propensity evidence, and we can't tell the jury that the defendant has a tendency to use chokeholds in domestic incident when he is verbally challenged. This propensity evidence may make sense to the layperson, but the federal rules of evidence are clear that, for the most part, propensity evidence is inadmissible. 

Plaintiff also wanted to prove to the jury that the NYPD disapproves of chokeholds. The trial court denied that effort. Even if the trial court's ruling was an abuse of discretion, that is not grounds for a new trial, the Court of Appeals says, because it was harmless error. That's because the officer himself testified that the NYPD prohibits chokeholds, and he denied applying one to the plaintiff.The jury was entitled to believe the officer's testimony that he did not apply any chokehold, and it also heard evidence that chokeholds are improper under departmental policy. Harmless error.

What about the jury charge? Plaintiff wanted the judge to instruct the jury that officers need a warrant make an arrest inside someone's home. The trial judge rejected that charge. That was not error, the Court of Appeals said. While officers need a warrant to make an arrest, plaintiff did not bring a false arrest case, and in excessive force cases, the rules are different. The question in excessive force cases is whether the officer's use of force was objectively reasonable under the circumstances, not whether the officer had a legal basis to enter the house and arrest plaintiff.

Malicious prosecution case will go to trial

I have seen false arrest and malicious prosecution cases come and go in the Court of Appeals, which often dismisses such claims upon the finding that the police had probable cause to arrest the plaintiff, a solid defense to these cases. In this case, however, the Court of Appeals reinstates a malicious prosecution claim because the jury may find there was no probable cause to arrest the plaintiff.

The case is Kee v. City of New York, issued on August 30. Kee was arrested on drug charges after the detective claimed to see him smoking marijuana in a motor vehicle. Kee says he was never in the car and was not using drugs in or near the car. The detective's "observation" formed the basis for Kee's arrest, as he provided the "information" the prosecutor needed to proceed with the charges against Kee, which were ultimately dismissed on speedy-trial grounds. 

When the charges are dismissed, that opens the door for a federal lawsuit. A federal judge in White Plains used to say that all the time. But that is not always the case. If the police have "arguable" probable cause, there is no false arrest or malicious prosecution case. To win the case, the plaintiff essentially has to show he was set up or that the police were lying or that his conduct did not come close to a criminal violation.

The district court dismissed the malicious prosecution claim, ruling there were no disputed facts on probable cause. The Court of Appeals (Bianco, Lohier and Abrams [D.J.]) disagrees, and we've got ourselves a trial here. 

Plaintiff makes the case that the detective lacked probable cause in a common-sense and simple way: he argues he was never in the car that day, he was not using drugs that day, and his cell phone that the detective claimed to find in the car was actually taken from his person. In other words, plaintiff says, he did not commit any crime and was not even at the scene of the crime. "If the testimony of Kee and Tavares [the owner of the car] is credited, . . . there is insufficient evidence in the record from which a rational jury could find that probable cause to prosecute Kee for the drug offenses was lacking."

Court rules in union's favor on NLRB challenge

The Court of Appeals has sided with a labor union in its challenge to management's unilateral personnel decisions that imposed a mandatory six-day workweek for unionized technicians. This is one of those rare moments when the Second Circuit reverses a decision of the National Labor Relations Board.

The case is International Brotherhood of Electrical Workers v. National Labor Relations Board, issued on August 12. The employees worked for ADT in Syracuse, the company that manufactures security systems for home and the office. After ADA issued the six-day workweek order, the union objected, claiming the collective bargaining agreement disallowed that directive. The CBA does state that management has a general right to determine the amount of work required of its technicians. But it also states that the workweek shall be 40 hours during any one workweek, or 8 eight hours for each workday, noting further that the normal work schedule is 8.5 hours comprising of five consecutive days, Monday through Saturday, between 8:00 am and midnight. It also provides for a four-day workweek comprised of 10.5 hour workdays between 8:00 am and midnight, Monday through Friday. Under the CBA, some employees may have to work early in the morning to meet customer needs, starting at 7:00 a.m. 

When a private equity group purchased ADT in September 2016, it imposed a mandatory six-day workweek for service and installation technicians to meet customer demand. This new rule took effect without any bargaining with the union, which brought its case to the National Labor Relations Board, which in turn upheld the directive and said no bargaining was necessary.

The Court of Appeals (Walker, Chin and Leval) reverses and rules for the union. Under the National Labor Relations Act, management must negotiate work rules with the union unless the CBA permits those changes. In years past, the NLRB used the "clear and unmistakable waiver" standard in determining whether the CBA permitted unilateral changes in work rules. The union's challenge would fail if the new rules were unequivocally and specifically authorized by the CBA, such that the union would have "waived" its challenge. Under new NLRB rules, we have a new test: the "contract coverage" test that says "where the employer acts pursuant to a claim of right under the parties' agreement, the resolution of the refusal to bargain charge rests on an interpretation of the contract," not on a "waiver" analysis. Under this standard, the CBA does not have to specifically mention or address the management decision. Instead, we apply traditional contract interpretation principles. 

Under the new standard, the union wins the appeal, and the NLRB got it wrong in this case. The Court reasons:

we  adopt  the  “contract  coverage”  test  as  the governing  standard  for  determining  whether  a  CBA  permits  an employer’s unilateral change to an established policy.  Applying that test here, we find that (1) the CBAs did not grant ADT the right to unilaterally impose a mandatory six-day workweek on technicians in the Service Department at all, and (2) the CBAs did not grant ADT the right  to  unilaterally  impose  a  mandatory six-day  workweek  on technicians  in  the  Installation  Department  without  complying  with the two-step procedure.  Accordingly, we conclude that ADT violated Sections 8(a)(5) and (1) of the Act by failing to bargain with the Union before implementing the change.

Speedy trial dismissals no barrier to malicious prosecution claims

If you are the victim of a bad arrest, there are a few claims that might be available to you. One claim is false arrest. Another is malicious prosecution. These claims sound alike, but they carry different elements for the plaintiff to establish. This case involves malicious prosecution, in which the Court of Appeals clarifies the law in favor of plaintiffs. We also have a false arrest claim, which fails.

The case is Kee v. City of New York, issued on August 30. Plaintiff was arrested after the police claimed to see drugs in his car. Plaintiff said he was never even in the car and was not using drugs that day. So he claims the police fabricated the evidence against him. The charges against plaintiff were later dismissed on speedy trial grounds; the prosecution did not bring the claim quickly enough under the statutory deadlines.

Plaintiff sues the police for false arrest and malicious prosecution. Probable cause to arrest is a defense to any false arrest claim. As the Supreme Court has defined the claim, if the police have probable cause to arrest and detain the plaintiff on any charge, even if they did not charge him with that particular offense, then there is no false arrest claim. While plaintiff was charged with drug offenses, the Court of Appeals holds, even if there was no probable cause on those charges, a reasonable police officer would still arrest him for loitering and gambling offenses, both of which arise from plaintiff rolling dice on the streets. So the false arrest claim is gone.

What about malicious prosecution? That claim may proceed if the police persisted in prosecuting the claim without any reasonable basis. Plaintiff says there was no probable cause to prosecute on drug offenses. The Second Circuit (Bianco, Lohier and Abrams [D.J.]) says the police are not entitled to summary judgment on this claim because the parties dispute whether plaintiff was in the drug car.

The real story in this case is the favorable termination element. To win a malicious prosecution claim, the plaintiff has to show the criminal charges terminated in his favor; that proves the charges truly lacked merit. There has been confusion in this Circuit over whether a speedy-trial dismissal constitutes  a favorable termination, that is, whether it really means there was no viable criminal case at all. The real question is whether the criminal court dismissal indicates the criminal defendant was innocent. in 1997, the Second Circuit held in Murphy v. Lynn that we may assume that a speedy-trial dismissal suggests the prosecutors did not think there was a reasonable ground for prosecution. But you know how things work with case law. Over time, lower courts will interpret prior cases differently, and subsequent appellate rulings may cast doubt on a prior ruling, as well. Bottom line: the Second Circuit in Lanning v. City of Glens Falls, 908 F.3d 19 (2d Cir. 2018), a recent malicious prosecution case, did not repudiate the language in Murphy, which remains good law and binding precedent. That's a win for this plaintiff.

Covid/Second Amendment case fizzles out on appeal

This case lies at the intersection of two current-events stories: Covid and guns. That's right, Covid and guns. 

The case is Connecticut Citizens Defense League v. Lamont, issued on July 28. When Covid-19 began infecting the country in early 2020, the Connecticut governor empowered police agencies to refuse collecting fingerprints of applicants seeking authorization for firearms. Without fingerprinting, you can't get a firearm. Hence, this lawsuit under the Second Amendment. This has all the makings of a great lawsuit, as the district court ordered the state to resume fingerprinting services. But, it turns out, the district court had no jurisdiction to even resolve the case because the case became moot in the district court and the plaintiff-organization lacked standing to bring the case. So it all fizzles out without a definitive ruling from the Court of Appeals. 

The reason for the fingerprinting suspension was to prevent the spread of Covid, and to allow the police to focus on dealing with the public health crisis. But before the district court issued the injunction against the suspension, the police-chief defendants resumed fingerprinting at their departments, and the governor then decided to repeal the suspension entirely. 

What it all means is the case was moot before the district court ruled on the injunction motion. It's hard to get around this, as the courts will not presume the government will resume unlawful rules that it had rescinded. 

What also kills off the appeal is the Court of Appeals' finding that the plaintiff-organization lacks standing to bring the case. Yet, we have organizational standing to sue on behalf of its members, but it has to show that it diverted its activities in challenging the rules. While the organization says it lobbied against the suspension rules and communicated with its members on the issue, it has to show current activities, however. The organization cannot show any current activities. As such, no standing.