JOHN RESTIVO, DENNIS HALSTEAD, Plaintiffs-Appellees, v. CAROLANN HESSEMANN, as executrix of the Estate of Joseph Volpe AKA Joseph Volpe, Defendant-Appellant.
Docket No. 14-4662-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: January 19, 2017
August Term, 2015 (Argued: April 5, 2016)
Before: POOLER, PARKER, LIVINGSTON, Circuit Judges.
Affirmed.
Judge Livingston concurs in part and dissents in part in a separate opinion.
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.
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.
BACKGROUND
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.
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.2 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.3 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 719.4 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 726.5
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
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
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
A. First Trial
Following an extensive Daubert hearing, which will be discussed below, and motion
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.10 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.
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,
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.12
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.13 Specifically,
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 Police15 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
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.
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.
Plaintiffs proffered three experts in the field of PMRB: Dr. Max Houck, a forensic anthropologist and trace evidence analyst; Nicholas Petraco, a former trace evidence analyst with the New York Police Department (“NYPD“) and a consultant for the NYPD’s Forensic Investigation Division; and Dr. Peter DeForest, who taught criminalistics at the John Jay College of Criminal Justice for nearly forty years. Following a five-day Daubert hearing, the district court ruled on the admissibility of these experts and their testimony. The district court found that Dr. Houck, Petraco, and Dr. DeForest qualified as experts, rulings not challenged on appeal by Volpe.16
The district court summarized the evidence presented by plaintiffs’ experts at the Daubert hearing as follows. Dr. Houck defined PMRB as “an opaque ellipsoidal band which appears to be composed of a collection of parallel elongated air spaces near the root of a hair, appearing as a dark or blackened band in the hair shaft.” Kogut v. County of Nassau, 894 F. Supp. 2d 230, 235 (E.D.N.Y. 2012) (internal quotation marks omitted). He explained that PMRB is an artifact of decomposition: hairs in the active growing stage when in the time of death “go through changes in their root ends related to the decomposition of the surrounding skin and follicle.” Id.
According to Houck, the transformation of the putrid root only occurs in roots that remain in the scalp of a decomposing body; the changes do not occur if the hair is plucked (or shed) prior to death and allowed to deteriorate. He asserts that, according to the literature on the topic, for a hair to exhibit PMRB three conditions must be met: the hair must have been (1) in the active growing phase prior to an individual’s death; (2)
Id. (alterations, citations, and internal quotation marks omitted).
Next, Petraco also believed that the Q8 hairs could not have come from Ms. Fusco before she died or during the time between her death and when her body was left in the woods. He “opined that PMRB only develops in hairs while they are attached to a decomposing body and that the banding takes at least 8 hours after death to appear,” citing “two instances in which PMRB was observed in hairs 8-10 and 10-12 hours after death, respectively,” the shortest intervals before which PMRB has been observed. Id. at 236. Petraco also “observed that the Q8 hairs exhibited banding patterns that are consistent with the patterns on ‘known’ hairs collected during Fusco’s autopsy,” and “because hairs do not continue to develop PMRB once they are removed from the scalp, it is extremely unlikely, and probably impossible that the Q8 hairs—if they really came from Fusco either before or shortly after she died—would exhibit PMRB consistent with [the] degree of banding seen on the autopsy hairs taken weeks after Fusco was murdered.” Id. (citation and internal quotation marks omitted). Finally, Dr. DeForest stated that PMRB is a recognized phenomenon in the scientific community of hair examiners, although scientists do not fully understand the mechanisms that cause it. See id. at 237. He concluded that, based on the degree of PMRB of the Q8 hairs, and the fact that it was “similar to the greatest degree” of PMRB of Ms. Fusco’s known hairs from the autopsy—the “K hairs“—that “to a reasonable degree of scientific certainty that the Q8 hairs exhibiting PMRB came from the sample of known hairs taken at the autopsy of the homicide victim, Theresa Fusco.” Id. (alteration omitted). He also concluded that the Q4 hair exhibited PMRB beyond a reasonable scientific certainty. See id.
Considering
However, although the evidence did not pass muster as “scientific” evidence under Daubert, the court held that the witnesses could testify based on their “technical or other specialized knowledge” under
Before the second trial, plaintiffs moved for reconsideration on the ground that a new peer reviewed study on PMRB, the Koch study, addressed many of the deficiencies in the literature that previously troubled the district court. In that study, FBI and Bureau of Alcohol, Tobacco, Firearms, and Explosives criminalists working at the University of Tennessee’s “body farm” tested approximately 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. Upon reconsideration, the district court found that this new evidence addressed some of its concerns about PMRB evidence, but ultimately held, “You can bring it in and testify to it, but they can’t use the magical words ‘to a degree of scientific certainty.’” Appellees’ Supp. App’x at 440. Volpe challenges this decision on the grounds that the Koch report stated that it was unable to draw any conclusions as to the onset of PMRB. Appellant’s Reply Br. at 44. But the Koch study merely stated that the rate of putrefaction versus time and temperature could not be calculated.
At trial, plaintiffs’ experts testified regarding PMRB. Defendants raise issue with Dr. Houck’s and Petraco’s testimony, claiming that they violated the court’s ruling that they were not to testify that their opinion was to a reasonable degree of scientific certainty. In particular, Dr. Houck, in response to a series of hypothetical questions, stated that he did not think it was possible for Ms. Fusco’s hairs to have been left in Restivo’s van during the rape and murder because of the presence of PMRB, and because the best evidence shows that PMRB takes on the order of days to develop. In response to defendants’ concerns about Dr. Houck’s testimony, the district court charged the jury, “Ladies and gentlemen, certain witnesses are permitted
Volpe also sought to introduce evidence from an expert witness—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. With respect to the first question, he referred to the study by Domzalski, referenced above. Domzalski’s study cautioned that various environmental conditions can cause a type of root banding, which “could be confused” with PMRB, but she noted that environmental banding appears at a different location than PMRB. Kogut, 894 F. Supp. 2d at 237. Based on Domzalski’s study, Dr. Kadane sought to testify: “[I]t is not unreasonable to suppose that the Q-hairs were also exposed to dirt in the van in which they were found. Since the mechanism(s) that lead to root banding is unknown, we are not in a position to determine whether the Q-hairs are pre- or post-mortem. Neither of these can be excluded.” Id. at 238. On the second issue, Dr. Kadane sought to testify that plaintiffs’ experts’ data fails to account for crime scene and autopsy delays, and that there is no statistical evidence to support plaintiffs’ experts conclusions on the timing of the development of PMRB. Id. With respect to Dr. Kadane, the court found that he “does not have the relevant expertise to offer a helpful opinion at trial.” Id. at 244. Specifically, the court found that although he was an accomplished statistician, he does not have more than a passing familiarity with hair microscopy and forensic science, and he had not conducted his own statistical analysis of PMRB. Id. at 244-45.
Next, defendants contend that there was no evidence that Volpe had the ability to plant the evidence. But there was evidence that he did have such an ability. The known hairs, or K hairs, taken from the autopsy were kept in a set of clearly marked envelopes labeled “K” and with Ms. Fusco’s name, and the Q8 hairs were kept in an envelope stating “van” and “right front seat floor.” Appellees’ Supp. App’x at 1659-60. There was nothing on the envelopes stating how many K hairs were in each envelope, and therefore there was no way of knowing whether any of Ms. Fusco’s K hairs from the autopsy were removed from the envelope.
The envelopes containing the K hairs and the Q hairs were unsealed, and were kept by Fraas in the same unlocked cabinet above the table in the microscope room in the Scientific Investigation Bureau (“SIB“). The cabinet had a sliding glass door to close it, and did not have a lock. The envelopes were neither logged in and out nor resealed every time they were taken out. Further, although there was a log where Fraas and other technicians signed in and out when they arrived and left the lab, there was no log for visitors who had to be buzzed in to the lab; thus, if someone was buzzed in there was no documentation
testimony that the door to the hair room was not always locked, so those who had access to the lab also had access to the hair room; accordingly those with access to the lab could have access to the unlocked cabinets where the Q and K hairs were kept. If a homicide detective, such as Volpe, buzzed to enter the lab, and if the person he asked for was in the lab, he would be let in without having to sign in. Depending on who greeted the homicide detective at the door, the detective would sometimes be escorted to where he was going, and sometimes would not be. According to testimony from Birdsall, who worked in the lab as a serologist, homicide detectives were treated as trusted colleagues and were therefore generally not escorted in the lab. Further, when a homicide detective was in the lab and left, in 1984 and 1985, he would leave on his own, unescorted. And Volpe, himself, testified that he could visit the SIB at his leisure.
Finally, evidence regarding an affidavit sworn by Volpe supports the inference that Volpe may have planted the hairs. On March 29, three days after the search of Restivo‘s van, and two days after Fraas began examining the 80 hairs recovered from Restivo‘s van, Volpe swore an affidavit in support of a search warrant stating, “A search of [Restivo‘s] van has produced hair consistent with THERESA FUSCO‘S and possible human blood.” Appellees’ Supp. App‘x at 1556. Volpe testified that when he said “possible blood” he was “just a messenger from what [he] had heard from the lab,” which was that “it looked like it was blood.” Trial Tr. at 2573. When questioned about his statement that there was hair consistent with Ms. Fusco‘s, Volpe stated that the source of that information was the lab, specifically, an oral conversation with Fraas. But when asked whether the microscopic examination had been finished when they had this conversation, Volpe testified, “I don‘t believe it was even started. I think it was just a visual, you know, look-see.” Trial Tr. at 2574. Indeed, Fraas later testified that it took “a significant amount of time, days to weeks, to generate a conclusion” regarding the hairs.17 Appellees’ Supp. App‘x at 714. In addition, Birdsall testified that he never told Volpe that he found possible human blood and that by midnight on March 26 he had made a preliminary determination that there was no blood in the van.
Fischer testified it would not be appropriate pursuant to minimally accepted practices for a homicide detective to swear an affidavit claiming possible human blood based on a stain, and rather that minimal practices require presumptive testing for blood, and that it would not be appropriate based on minimally accepted practices to swear out an affidavit saying “possible human blood” without talking to the person who did the testing. Similarly, Fischer testified that it would not be appropriate pursuant to minimally accepted practices to report that hairs were consistent without a report from a hair examiner that compared the hairs and found them similar, and that it would not be appropriate to report hair as consistent from merely looking at the hairs.
2. Verdict and Damages
On April 11, 2014, following the presentation of evidence and being charged, the
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,
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
Following the second trial and motion practice on this issue, the district court awarded plaintiffs’ attorneys at the law firm Neufeld Scheck & Brustin, LLP (“NSB“) $4,997,914.55 in fees. In assessing the reasonableness of NSB‘s fee application, the district court emphasized that this case has been litigated for eight years, with twenty-three separate discovery requests and fifty-four days of depositions. The first trial lasted thirty-one trial days over eleven weeks, and included the presentation of forty-two witnesses. The second trial, which both followed and was followed by extensive and complicated post-trial motions, lasted seventeen trial days, and included the presentation of forty witnesses. There was extensive expert testimony, as well as litigation over the admissibility of expert testimony, culminating in a five-day Daubert hearing. Based on these eight years of work, NSB requested compensation for 11,222.6 hours
NSB requested that attorneys be compensated at the rates prevailing in the Southern District of New York; specifically, NSB requested attorney rates ranging from $250 an hour to $700 an hour, and paralegal rates of $125 an hour. NSB requested that, if the district court applied Eastern District rates, the court apply rates ranging from $200 to $600 an hour for attorneys, and paralegal rates of $100 an hour. Ultimately, the district court granted NSB‘s fee application, reimbursing NSB for 11,222.6 hours of attorney and paralegal work at the Southern District of New York rates it had proposed.
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.
DISCUSSION
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
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 theRule 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, 47 N.E.3d 747, 760 (N.Y. 2016), whether the police defendants had
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).
As to Boyd, we held only that in the particular circumstances that case presented, a statement that constituted the sole evidence of probable cause and that would be inadmissible in the criminal case (from an ex ante perspective) did not warrant the grant of summary judgment to the civil defendants. This holding turned on an unusual set of facts in which “the only evidence the police had that could reasonably indicate that Boyd knew the [car] was stolen was his statement” to the police. Id. at 77. Moreover, not only was the evidence tying Boyd to the crime limited, Boyd had also produced evidence to establish that his statement was inadmissible under Miranda v. Arizona, 384 U.S. 436 (1966)—evidence which, if credited by the jury, would have shown that police understood at the time that this statement could not be used to prove a criminal case. We concluded that in these unusual circumstances, the district court erred in granting summary judgment to the defendants. In other words, Boyd did not hold that inadmissible evidence cannot be used in evaluating probable cause for a prosecution, but only that where the sole evidence of a defendant‘s guilt is a single statement that police would have understood at the time could not be used in a criminal case (a circumstance largely limited to the facts of Boyd itself) such evidence is not alone sufficient to defeat a malicious prosecution claim.19
prosecution against them would succeed. Cf. Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (“[P]robable cause . . . is demonstrated . . . [by] the totality of circumstances“). Even if ultimately deemed inadmissible, a confession such as Kogut‘s, looked at ex ante, appeared to support the determination that Restivo and Halstead were complicit in Fusco‘s rape. “Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been . . . committed by the suspect[].” Torres, 47 N.E.3d at 760 (internal quotation marks omitted).
Moreover, at the time members of the police, including Volpe, made the decision to refer Restivo and Halstead for prosecution, it was not yet clear whether Kogut‘s confession would be admissible at their criminal trials. Kogut ultimately refused to testify against Restivo and Halstead, and, as a result, his confession was inadmissible under Bruton v. United States, 391 U.S. 123 (1968), because to admit it would have violated Restivo and Halstead‘s Sixth Amendment Confrontation Clause rights. Id. at 135-36. If, however, Kogut had cooperated against Restivo and Halstead and testified at their trial, there would have been no Confrontation Clause problem. Thus, there is a temporal component to the analysis as well: The fact that evidence ultimately proves inadmissible does not make it irrelevant to the evaluation of probable cause at the time police are presented with it. Put differently, the fact that Kogut‘s confession was eventually deemed inadmissible does not undercut probable cause at the time the decision to prosecute Restivo and Halstead was made. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (holding that where the probable cause determination was made before an intervening fact came to light the analysis of a malicious prosecution claim looks back to the facts as they were known at the time the determination was made).
The district court‘s erroneous interpretation of Boyd notwithstanding, the determination that its instructions were inadequate at the first trial was correct. In the context of that trial, Kogut‘s confession was not just any piece of evidence. As the district court observed, “the Kogut confession was arguably one of the central pieces of evidence in this case,” Special App‘x at 62, and, as this Court recognized, due to its “devastating detail,” the confession “posed a clear[] danger of unfair prejudice” to Restivo and Halstead. Kogut, 789 F.3d at 44. The confession played a central role in evidentiary hearings leading up to both trials, and whether it should be admitted, with respect to whom, and for what purpose was sharply contested. Indeed, Volpe explicitly presses this point, asserting that the jury‘s judgment was swayed by the district judge‘s failure to admit Kogut‘s confession at the second trial. See Appellant‘s Br. at 60-61 (arguing that admitting the confession “would have resulted in a defense verdict, as it did at the first trial” and that the confession was “vitally important to rebut Restivo and Halstead‘s testimonies that they were actually innocent“).
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.
In assessing these challenges, it is important to note that the jury found against Volpe and for Restivo and Halstead on the malicious prosecution claim and the deprivation of a fair trial claim, and that each of these claims is independently sufficient to sustain the damages award against Volpe because there was a single injury: the wrongful imprisonment.22
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
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.
Volpe next challenges two evidentiary rulings actually made by the district court: its exclusion of the Kogut confession and of the statement signed by Restivo, which implicated Halstead in the crime. Because the jury found for plaintiffs and against Volpe on the malicious prosecution claim and the fair trial claim, each of which is sufficient independently to sustain the jury award, we consider only whether the “jury‘s judgment would be swayed in a material fashion by the error.” Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007).23
First, the district court did not err in excluding the Kogut confession from consideration with respect to the fair trial claim because the confession was not relevant to plaintiffs’ claims that Volpe planted evidence and suppressed Brady material.
Finally, we consider Volpe‘s challenge to the exclusion of Restivo‘s statements made on March 5 and 6, 1985, following an overnight interrogation. At some point during the eight-hour interrogation, Restivo signed the following statement:
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. As with the Kogut confession, this statement might have some relevance to the hair-planting claim if the jury were permitted to consider the statement by Restivo for its truth. That is, if the jury were to consider this statement for the truth of whether Halstead committed the crime, the statement might be relevant in determining whether the hairs allegedly found in Restivo‘s van were planted. However, the jury was not permitted to consider the statement for the truth of whether Halstead was guilty. The fact that Restivo made this statement was admissible against him, as a statement by a party opponent under
The same applies for Halstead himself.
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
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 (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 (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.
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 (quoting
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.
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,
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,
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.
With respect to the first point, Dr. Kadane referred to the Domzalski study, which found that various environmental conditions could cause root banding that “could be confused” with PMRB, although environmental banding appeared nearer to the root of the hair than PMRB. Kogut, 894 F. Supp. 2d at 237. Based on this study, Kadane sought to testify that it cannot be determined whether the Q hairs were removed post-mortem or ante-mortem. Id. at 237-38. The district court correctly excluded this line of testimony. Reasoning that “[a]lthough there is no dispute that Kadane is an accomplished statistician, it is equally beyond debate that he lacks more than a passing familiarity with hair microscopy and forensic science,” the court found him not equipped to testify about this matter. Id. at 244. The question whether experts can distinguish between ante- and post-mortem root banding is a topic clearly outside Dr. Kadane‘s area of expertise. See Kumho Tire Co., 526 U.S. at 149 (requiring the district court to determine “whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline” (alteration and internal quotation marks omitted)). Further, this opinion was not based on “sufficient facts or data,”
With respect to the second proposed area of testimony, Dr. Kadane sought to testify about experimental flaws in the research relied on by plaintiffs’ experts. In particular, Dr. Kadane listed factors that were not accounted for in the studies relied on by plaintiffs’ experts. The district court again held that Kadane‘s “expertise is simply not useful in attempting to refute Plaintiffs’ Experts’ opinions about PMRB,” reasoning that Dr. Kadane “was free to conduct his own statistical analysis of PMRB but did not do so.” Special App‘x at 40. Even assuming, arguendo, that the district court abused its discretion in excluding Dr. Kadane from testifying about experimental flaws and the value of the data on which plaintiffs’ experts relied, any error was harmless. Dr. Kadane sought only to critique the testimony of plaintiffs’ expert witnesses, and Volpe was able to effectively cross-examine plaintiffs’ experts based on the statistical issues raised by Dr. Kadane. See Beck Chevrolet Co. v. Gen. Motors LLC, 787 F.3d 663, 680 (2d Cir.) (holding that any error was harmless where an expert report was excluded but counsel cross-examined the opposing expert about the topics contained in the report), certified question on an unrelated issue accepted, 33 N.E.3d 496 (N.Y. 2015), and certified question answered, 53 N.E.3d 706 (N.Y. 2016).
3. Police Practices Expert Testimony
Finally, Volpe claims that the district court abused its discretion in admitting certain testimony from plaintiffs’ police practices expert, Russell Fischer. First, Volpe claims that Fischer misinformed the jury about the relevant legal Brady standard that was in place during the time of the investigation.27
Second, Volpe argues that Fischer was improperly permitted to define materiality and opine on the materiality of the French lead. Third, Volpe argues that Fischer should not have been permitted to testify about the words “possible human blood” and “hair consistent with” because those terms have no special law enforcement meaning. Finally, Volpe argues that Fischer should not have been permitted to testify about the effects of lengthy police interrogation on reliability because this was a veiled attack on the credibility of Cockerel, which was the province of the jury.
First, the district court did not abuse its discretion in admitting Fischer‘s testimony with respect to Brady and the materiality of the French lead. Contrary to Volpe‘s assertions, Fischer did not testify to the legal Brady standard or define materiality. Rather, he testified to minimally accepted police practices, “a baseline type
Volpe‘s claim that Fischer should not have been permitted to define “possible human blood” and “hair consistent with” similarly lacks merit. Experts are permitted to testify about “custom and usage” of terms in particular industries. See SR Int‘l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107, 134 (2d Cir. 2006). If, as Volpe claims, those terms have no special law enforcement meaning, then Volpe should have introduced testimony to that effect, expert or otherwise. That does not render Fischer‘s testimony inadmissible.
Finally, Fischer testified about potential risks inherent in long interrogations, and testified that if a witness‘s story changed over time, under minimally accepted police practices, an officer should record the changes and corroborate the statements. Volpe challenges this testimony as going to witness credibility. But, testimony about appropriate responses to inconsistencies in a witness‘s story is permissible where that testimony is introduced to inform the jury “what a reasonable police investigator . . . [does] when presented with . . . conflicting and/or inculpatory statements during [a] murder investigation.” Jimenez, 732 F.3d at 723. Accordingly, we find no abuse of discretion in the district court‘s decision to admit Fischer‘s 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
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
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
As to Restivo and Halstead‘s recovery on
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.
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 (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
First, it is axiomatic that a state is not a proper defendant in an action brought pursuant to
Second, none of the cases to which the dissent points address the issue of settlement before trial of a party in a
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 (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
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
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
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.
“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 (1978) (alteration and internal quotation marks omitted); see also Hardin v. Straub, 490 U.S. 536, 539 n.5 (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
By contrast,
The New York rule is inconsistent with the deterrent goal of
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 (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 torfeasor‘s proportionate fault. See McDermott, 511 U.S. at 204 (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.
This then leads to the question whether Volpe is entitled to a proportionate reduction. “Under the proportionate share approach, the allocation will take place at trial.” McDermott, 511 U.S. at 217. That is, the jury is to decide the relative faults of the tortfeasors. The State has never been found to have been at fault, as it was sued under and settled pursuant to a state law that provided for compensation without any showing of fault by the State. See
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.”
“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
The district court here plainly did not abuse its discretion in holding that the amount awarded, $1 million per year of wrongful incarceration per plaintiff, neither shocks the conscience nor materially deviates from reasonable compensation. Indeed, the jury award is in line with other approved awards in wrongful conviction cases. See, e.g., Limone v. United States, 579 F.3d 79, 103-07 (1st Cir. 2009) (approving district court award of $1,000,000 per plaintiff per year for wrongful incarcerations of between eighteen and thirty-three years, but noting that this was at the high end of what would be permissible); Smith v. City of Oakland, 538 F. Supp. 2d 1217, 1242 (N.D. Cal. 2008) (“[A] number of verdicts of approximately $1 million per year have been awarded in cases involving periods of wrongful incarceration which span a significant amount of time.” (collecting cases)); Sital v. City of New York, 875 N.Y.S.2d 22, 23 (1st Dep‘t 2009) (acknowledging reasonableness of a $150,000 award for a false arrest claim with an associated twenty hours imprisonment and approving a $1.6 million award for a malicious prosecution claim with an associated eleven months imprisonment); Haynes v. City of New York, 815 N.Y.S.2d 143, 145 (2d Dep‘t 2006) (acknowledging reasonableness of a $1 million award on a malicious prosecution claim where the plaintiff was incarcerated for four months and of a $250,000 award for a false arrest claim). Plaintiffs and the district court cited scores of cases, federal and state, with awards in a similar range. The fact that some state cases, cited by Volpe, yielded lower damage awards does not mean that the district court‘s conclusion was an abuse of discretion, as we “need not average the high and low awards,” and rather focus on “whether the verdict lies within the reasonable range.” Zeno, 702 F.3d at 671; see id. at 673 (rejecting contention that an award shocks the conscience when it was “located within the range of permissible decisions“). The evidence shows that, as can be expected, plaintiffs suffered grave harm from their 18 years of wrongful incarceration, including adverse psychiatric effects, loss of relationships with family members, and stigma due to the nature of the crimes they were convicted of—and resulting violence against them while incarcerated.29 The district court therefore did not abuse its discretion in holding that the jury award did not shock the conscience or materially deviate from what would be reasonable compensation.
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
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 (2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (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
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, 593 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.
The district court, in response to NSB‘s request for Southern District of New York rates, rather than Eastern District of New York rates, concluded that NSB had made the necessary particularized showing sufficient to overcome the forum rule. The court found that NSB has particular experience litigating wrongful conviction suits and has successfully litigated dozens of these cases nationwide, and that this experience was necessary given that “this case was exceedingly arduous and complex, involving extensive expert analysis and presentation of DNA evidence, spanning eight years and two trials.” Supp. Special App‘x at 7. The district court further noted that defendants “do not dispute that no lawyers with primary offices in the Eastern District of New York have obtained a successful jury verdict in a [Section] 1983 wrongful conviction suit, as NSB did here.” Supp. Special App‘x at 7. Finally, the court found that NSB achieved an excellent result in a particularly complicated case.
Volpe also contends that a higher award was not necessary to attract out-of-district counsel because NSB took the case knowing that the forum rule meant that there was a presumption in favor of the lower Eastern District rates. Volpe further suggests that NSB has its own Eastern District rates, based on its fee submission to the district court. Contrary to Volpe‘s intimations, NSB does not have a separate set of rates it charges to clients when litigating in the Eastern District of New York. Rather, the law firm provided rates it thought were reasonable if the district court chose to apply the forum rule, in addition to the rates it thought were reasonable if Southern District rates were applied. Further, if the standard were as Volpe claims, no out-of-district attorney would be able to rebut the forum rule‘s presumption because of the mere fact that he took the case. The district court properly considered the relevant factors and evidence, and did not abuse its discretion in awarding the higher Southern District of New York rates.
B. Number of Hours
Volpe also challenges the number of hours reimbursed by the district court. Volpe contends that the hours for which NSB was reimbursed should have been reduced by at least 25% due to block billing and failure to keep contemporaneous time records, billing for claims that were dismissed or withdrawn, and excessive hours spent on the fee award application. As noted, NSB requested reimbursement for a total of 11,222.6 hours of attorney time over the eight years this case was litigated in the district court.
First, attorneys are required to keep and submit contemporaneous records with their fee applications, absent unusual circumstances outside the attorney‘s control. See Scott v. City of New York, 643 F.3d 56, 58 (2d Cir. 2011). But, despite Volpe‘s claims, the evidence demonstrates that NSB did keep contemporaneous records. Indeed, NSB did not request reimbursement for attorney time spent where the attorney or paralegal did not keep contemporaneous records or where the contemporaneous records were lost.
Volpe next asserts that block billing rendered NSB‘s records inadequate. Although block billing is not preferred, it is permissible so long as the records allow the court to conduct a meaningful review of the hours requested. See Merck Eprova, 760 F.3d at 266 (affirming where the district court rejected defendant‘s challenges to the use of block billing, vague descriptions of work, and overabundant staffing
Next, Volpe challenges the district court‘s decision to award fees based on claims other than plaintiffs’ prevailing claims against Volpe. “[P]laintiffs may receive fees under [Section] 1988 even if they are not victorious on every claim,” as a “civil rights plaintiff who obtains meaningful relief has corrected a violation of federal law and, in so doing, has vindicated Congress‘s statutory purposes.” Fox, 563 U.S. at 834.
A court should compensate the plaintiff for the time his attorney reasonably spent in achieving the favorable outcome, even if “the plaintiff failed to prevail on every contention.” The fee award, of course, should not reimburse the plaintiff for work performed on claims that bore no relation to the grant of relief: Such work “cannot be deemed to have been expended in pursuit of the ultimate result achieved.”
Id. (quoting Hensley, 461 U.S. at 435). Although attorneys should not be reimbursed for their work on claims that “bore no relation to the grant of relief,” id., “[w]here the district court determines that the successful and unsuccessful claims are inextricably intertwined and involve a common core of facts or are based on related legal theories, it is not an abuse of discretion for the court to award the entire fee,” Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir. 1996) (alteration and internal quotation marks omitted). The district court determined here that that successful claims were inextricably intertwined with the unsuccessful claims, and that the successful and unsuccessful claims involved both a common core of facts and were based on related legal theories. Having reviewed the record, keeping in mind the superior position of the district court, we conclude that this finding was not clearly erroneous, and the district court therefore did not abuse its discretion in awarding the entire fee.
Finally, Volpe challenges the award of $97,132.50 for the time spent preparing the fee award application. In particular, Volpe contends that if NSB kept better time records, it would not have taken as long to prepare the fee award, and that NSB should not be reimbursed for time spent arguing that the forum rule should not apply. Reasonable attorneys’ fees for preparing the fee application are compensable. See Reed, 95 F.3d at 1183. Here, the district court rejected Volpe‘s challenge that NSB spent an excessive number of hours preparing the fee application on the ground that the “brief does not cite to any relevant precedent and makes only conclusory arguments.” Supp. Special App‘x at 14 n.6. This determination was not an abuse of discretion, as “when, as here, a fee target has failed to offer either countervailing evidence or persuasive argumentation in support of its position, [it is not] the district court‘s job either to do the target‘s homework or to take heroic measures aimed at salvaging the target from the predictable consequences of self-indulgent lassitude.” United States ex rel. Keshner v. Nursing Pers. Home Care, 794 F.3d 232, 236 (2d Cir. 2015) (alterations omitted) (quoting Foley v. City of Lowell, 948 F.2d 10, 21 (1st Cir. 1991)).
For the foregoing reasons, we affirm the district court‘s award of $4,997,914.55 in attorneys’ fees to NSB.
We have considered all of Volpe‘s arguments on this appeal, and have found no basis for reversal. Accordingly, the judgment of the district court is AFFIRMED.
DEBRA ANN LIVINGSTON, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority of the panel‘s opinion, but write to register my dissent on the issue of setoff. The majority holds today that because, in its judgment, the considered damages award made by the jury in this case is insufficient to compensate the plaintiffs for the harm that they suffered, the defendant is not entitled to set that award off against the amount the plaintiffs already received in settling claims arising out of their injuries. Because this result is inconsistent with the familiar rule against double recovery, and therefore with our, and the available Supreme Court, precedent, I dissent.
I begin, as the majority does, with the text of the statute.
First, our precedent is clear that the common law rule against double recovery is applicable in the section 1983 context. We have even reversed jury awards in section 1983 cases where the district court failed to give an instruction on the rule against double recovery on the grounds that such an omission “risk[s], if not invite[s], duplication” of damages. Bender v. City of New York, 78 F.3d 787, 794 (2d Cir. 1996). Cognizant of this concern, we specifically noted that an acceptable jury instruction would inform the jury that “[t]he plaintiff may not recover twice for the same injury. Accordingly, if you find that the plaintiff is entitled to a verdict on both [a federal-law based] excessive force claim and [a state-law based] claim for intentional infliction of emotional distress, you may not compensate her twice for any emotional distress she might have suffered.” Id. at 794 n.5. In other words, Bender confirms as a clear rule of federal law that, where a section 1983 claim lies against two separate defendants, or where a section 1983 claim parallels a state-law tort claim targeting a substantially similar harm, the rule against double recovery limits the recovery available to the plaintiff to a single assessment of damages. See id. at 793-95.
Other circuits to weigh in on the question have ruled similarly. Thus, where a section 1983 claim and a state claim “arise from the same operative facts, and seek identical relief, an award of damages under both theories will constitute double recovery.” U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1259 (10th Cir. 1988); see also Medina v. District of Columbia, 643 F.3d 323, 328 (D.C. Cir. 2011) (same); Bogan v. City of Boston, 489 F.3d 417, 426 (1st Cir. 2007) (same); Braley v. City of Pontiac, 906 F.2d 220, 224 (6th Cir. 1990) (same). In sum, it is widely accepted as a matter of federal law that a plaintiff may not recover twice on parallel state- and federal-law claims and hence that the plaintiff must generally set off any recovery he or she is awarded in prosecuting
The state action settled by the plaintiffs in this case was brought under
If, as we explained in Bender, two different claims, such as an excessive force claim and an intentional infliction of emotional distress claim, can be parallel actions with respect to which double recovery is barred, a similar rule necessarily applies to a section 8-b action and its related section 1983 action. Absent a clear difference between the two cases, it is just untenable to suggest that the relevant federal rule barring recovery is so unclear that it is not determinative of the issue.1
The majority argues that the fact that the State of New York is not a proper party to a section 1983 suit somehow differentiates this case from all other section 1983 cases. But New York‘s immunity from a section 1983 suit is merely a function of the Eleventh Amendment and the latitude our federal system affords to the states under sovereign immunity doctrine. See Will v. Mich. Dep‘t of State Police, 491 U.S. 58, 66–67 (1989). To invoke this immunity in the way that the majority has turns it on its head: rather than protecting states from suit, it means that when a state opens up an avenue for recompense to those harmed (even if unintentionally) by the actions of its localities and the police officers who serve in the state, no credit is given for that payment when those same police officers and localities are subject to suit in a section 1983 action. I can only hope that states seeking to clear the path to compensation for the wrongfully convicted do not hesitate to do so as a result of the majority‘s decision today.
In any case, this single difference cannot bear the weight that the majority ascribes to it. The rule against double recovery is designed to prevent a plaintiff from recovering twice for the same harms, and that general rule bars such recovery even in the absence of an explicit statutory command. In United States v. Nucci, 364 F.3d 419 (2d Cir. 2004), for instance, we held that that the background common law rule against double recovery demanded that the
It is, further, generally accepted that the rule against double recovery extends
Much as it is clear that the background rule in federal law militates against double recovery, it is also not subject to dispute that this background federal rule applies even when, as here, one party from whom the plaintiff might recover settles the potential claim against it. See Waffle House, 534 U.S. at 296 (discussing the availability of an offset against amounts the plaintiff recovered by settlement); McDermott, Inc. v. AmClyde, 511 U.S. 202, 208–09 (1994) (discussing various methods of calculating the offset appropriate after settlement). This would naturally suggest that the full amount of Restivo and Halstead‘s settlements in the section 8-b action, or $2.2 million each, should be set off against each $18 million jury award respectively.
The majority suggests that this general rule is inapplicable because the jury never had the opportunity to consider what portion of the plaintiffs’ damages should be deemed as paid pursuant to New York‘s section 8-b settlement. Significantly, however, it cites no authority to this effect, for this so-called exception is simply not the law.
At bottom, the majority‘s position effectively transforms the Supreme Court‘s effort in McDermott to carefully tailor the rule against double recovery into a rule that no double recovery exists on the facts of this case at all. To be clear, if the plaintiffs’ claims in the state section 8-b action and in this section 1983 suit had articulated two entirely different injuries, each of which independently justified recompense, offsetting these two recoveries would not be appropriate. See Bender, 78 F.3d at 794 n.5. Thus, if it were the case that the section 8-b proceeding was tailored towards compensating Restivo and Halstead for some harm not considered by the jury at the damages phase of the section 1983 trial, then the general rule against double recovery would be inapplicable. But the majority does not even attempt to show how this proposition applies in the present circumstances.
At the damages phase of the trial, the jury heard substantial testimony from, among others, psychiatric professionals and Restivo and Halstead themselves, describing the effect that nearly eighteen years’ imprisonment had on them psychologically, emotionally, and socially. As Restivo and Halstead‘s attorney made clear in his opening statement:
We will be asking you to deliver a verdict that fully valued John [Restivo] and Dennis [Halstead] as human beings
for the first time in 30 years. . . . When you value their 18 years in prison, their 6,566 days of incarceration, I want you to remember a few things. When you value their suffering that continues to-date and will last the rest of their life, keep these things in mind. Remember all the things they missed: 18 years of birthdays and Christmases and Easters and Thanksgivings; all the dance recitals and school plays; all the first base hits; the football games[;] the softball games; all the school dances and proms and first dates; all the graduations, all the
weddings, all the funerals, communions, all the grandkids and their birthdays and their first steps.
Damages Trial Tr. at 22; see also Damages Trial Tr. at 581–82 (jury charge describing the range of harms — including “[e]motional pain and suffering,” “[l]oss of liberty,” and the “loss of family connections and family interactions” — that the jury was to consider in calculating the appropriate award).
With this, and all the supporting evidence put before the jury over three days of trial, I find it nearly impossible to characterize the jury‘s verdict in this case as not targeted at making Restivo and Halstead whole for their time in prison — at least to the extent that monetary damages can ever appropriately compensate someone for wrongful incarceration or a similarly pervasive injury. And it is just this sort of injury — the result of “wrongful convict[ion] . . . and subsequent[] imprison[ment]” — for which New York‘s section 8-b action seeks to compensate.2
Because the rule against double recovery is designed to afford a plaintiff full, but only one, recovery for his compensable injury even where brought under distinct causes of action or in different forums, common law principles incorporated into federal law require offsetting Restivo and Halstead‘s recovery in this case by the amount each has already received for those harms as a result of the section 8-b proceeding. And because this rule is dictated by specific background principles of federal law, consistently applied, it is, under section 1988, decisive to the outcome in this case. Accordingly, I would vacate and remand to the district court with instructions to enter judgment for the plaintiffs in the amount of the jury‘s award, less the amount each received in settling their respective section 8-b claims.3
As a final note, it is worth distilling the essential difference between my approach and the path the majority takes. The Supreme Court has long explained that a rule adopted under section 1988, even if derived from state law, is always ultimately a federal rule. Robertson v. Wegmann, 436 U.S. 584, 588 (1978); see also Valley Disposal, Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 113 F.3d 357, 362 (2d Cir. 1997). The majority chooses to reject a state-law rule in favor
I therefore respectfully dissent.
Notes
We reject several competing readings of Boyd offered by the parties and the district court. The district court‘s reading of Boyd as excluding all evidence that was inadmissible in the criminal trial places too high of a burden on defendants in malicious prosecution cases, as it prohibits them from relying on evidence that only retrospectively was deemed inadmissible, even if, at the time the prosecution was brought, the defendants reasonably believed the evidence would ultimately be ruled admissible.
Plaintiffs assert that our Court affirmed the district court‘s reading of Boyd in Kogut v. County of Nassau, 789 F.3d 36 (2d Cir. 2015). We disagree. Although our Court assumed in Kogut that the district court‘s reading of Boyd was correct, it did not have the opportunity to decide this issue. In that appeal, Kogut challenged the admission of three statements made by Restivo and Halstead, arguing that those statements should not have been admitted at the civil trial as evidence of probable cause. Our Court rejected this challenge, reasoning that Kogut did not establish that the admitted statements caused any actual prejudice. Id. at 44-45. The Court therefore did not assess the district court‘s reading of Boyd.
Finally, Volpe‘s reading of Boyd as excluding evidence that is only inadmissible at the civil trial both cannot be squared with the text of Boyd and renders the holding of Boyd a tautology: evidence that is inadmissible at the civil trial cannot be admitted at that trial.