OPINION
This matter is before the Court on Defendants’ Motion for Remittitur, Motion for New Trial, Motion for Judgment as a Matter of Law and Plaintiffs Motion for Costs and Attorney Fees. The Court addresses these Motions in the context of the evidence heard by the jury at trial.
J. Summary of Trial Testimony
This case was tried to a jury over twenty-seven days. The jury heard, saw, and touched extensive evidence, including hundreds of documents, photographs, videotape, physical restraints, autopsy reports, the lay and expert testimony of over 30 witnesses, and site visits to the Lansing City Jail, the Volunteers of America homeless shelter and King’s Kids Day Care Center. The jury was charged by the Court and after two days of deliberations reached its verdict on April 15, 1998. The jury’s verdict found for the Plaintiff and against the Defendants as follows: against all Defendants, jointly and severally, for actual damages in the amount of $9,800,-000.00 and against the individual Defendants individually for punitive damages in the following amounts: Michael Mezzano, $1,000,000.00; Miklos Szilagyi, $500,000.00; Glenn Sherman, $275,000.00; Joseph Diaz, $275,000.00; William Fabijancic, Jr., $275,-000.00; Kevin Moore, $275,000.00; Patricia
Defendants have filed Motions to reduce or set aside the jury’s verdict. The Motions require consideration of the evidence and argument at trial in a light most favorable to the Plaintiff.
Williams v. Nashville Network,
On February 2, 1996, Edward Swans was a middle-aged, 5'8", 260-pound, African-American man with a record of honorable service in the military and an honorable discharge with a partial service-related disability of schizophrenia. (Trial Testimony at 10-42, 16-30.) According to his family, when Edward Swans’ condition was treated with medication, he functioned normally. (T.T. at 16-31) When untreated, he did not. (Id.) As a consequence, prior to February 2, 1996, he had a history of multiple hospitalizations with the Veteran’s Administration and a history of arrests in the City of Lansing.
On the morning of February 2, 1996, at 5:00 a.m., Edward Swans appeared at the third floor of the Lansing City Jail, complaining of an assault. At the time, the weather was extremely cold with a 27-degree below zero wind chill (F.). (T.T. at 5-152.) Edwards Swans presented himself not wearing a shirt, coat or socks. (T.T. at 5-186.) Officer James Thornburg questioned Swans’ story about being assaulted and thrown out of his house, saying “you walking that distance (three miles).... I’m surprised you’re alive.” (T.T. at 5-187.) To which Swans replied, “I have Jesus in my heart.” (Id.) His complaint was deemed “unfounded” by Officers Fred Tabor and Thornburg. (T.T. at 5-189.) At that time, Swans pleaded to “go to jail” but was instead given a shirt and taken to Volunteers of America (“VOA”) for breakfast at approximately 6:00 a.m. (T.T. at 5-189 to 5-191.) Before taking Swans to the VOA, officers gave him a preliminary breath test, which tested at .036. (T.T. at 5-177.)
According to Steven Souza (an addiction counselor for VOA), upon Swans’ entry to VOA, he reeked of alcohol, was uneasy, anxious, manic, disoriented, irrational and confused. (T.T. at 10-8, 10-12 to 10-15.) Swans during his stop at VOA had contact with case manager Robert Lindley, who described Swans on that day as “not having all his marbles.” (T.T. at 10-44.) Swans apparently desired at that time to be taken to the Veteran’s Hospital in Battle Creek and acted as if a van might be taking him to the hospital, though one was not so scheduled. (Id.) He left VOA at 10:15 a.m. after the van had failed to appear. (T.T. at 10-48.)
At 11:00 a.m. that morning, Edward Swans entered the King’s Kids Day Care Center on 2003 West Main apparently to use their telephone and warm himself. (T.T. at 20-197.) The Day Care was located close-by to a residence or former residence of Edward Swans. The location is approximately three miles from the Lansing City Lockup. (T.T. at 16-188.) According to operator of the Day Care, Ann Benson, Swans had “a wild look.” (T.T. at 20-197.) According to her, he had icicles hanging from his nose and was without a coat (though not much later he was seen by her wearing a coat). (T.T. at 20-220.) He then left the building, picked up a pickaxe and was seen talking to himself. (T.T. at 20-201.) Swans began knocking at the door with the pickaxe at which time the police were summoned by 911 call of a Day Care worker. (Exhibit 48A; T.T. at 6-69.) Over the 911 call, the worker complains of a man with a pickaxe who is “kind of crazy.” (Exhibit 48A.) Officer Donald Viele, Officer David Dickson and Detective William Debnar, in that order, arrived at the address. (T.T. at 16-143 to 16-144.) One of the officers responding to the call describes the suspect over the radio as a “10-96.”
(Id.)
The 10-96 code, according to officers of the Department, refers to a mental patient or person who is otherwise
Upon arrival at the Jail, Detention Officer Joseph Diaz attempted to book Swans at the desk. (T.T. at 16-177 to 16-178.) Swans had several previous contacts with detention staff (including Detention Officers Diaz, Fabijancic, Sherman and Layne) relating to earlier bookings. (T.T. at 17-193, 1-197 to 17-198.) During at least one of these contacts, it was entered on the Police Department computer that Swans took Thorazine. (T.T. 11-85.) At the time of anticipated booking, Swans was handcuffed with his hands behind his back. (T.T. 17-206.) The computer was not checked at the time of Swans’ booking. (T.T. at 17-204 to 17-205, 12-181.) Swans uttered words to the effect “you’re going to shoot me” and then stood silent. (T.T. at 10-109, 10-187, 6-66.) Swans was told by Officer Diaz to face either the booking counter or the cage behind him. (T.T. at 17-210.) When he shook his head “no,” Diaz grabbed his arm and attempted to move him toward the booking counter. (Id.) In the process, Swans was moved against the cage. (T.T. at 10-110.) Detention Officers Kevin Moore, William Fa-bijancic, and Sergeant Miklos Szilagyi then entered the booking area and with Diaz responded to an order of one of the officers to “take him down.” (T.T. at 10-110.) Upon Swans being taken down, his foot struck Sgt. Szilagyi in the face. (T.T. at 10-115.) From that point forward, Detention Office Fabijancic used, in his own words, “pain compliance” techniques to subdue Swans. (T.T. at 17-60.) Officer Fabijancic used wrist locks, transport wrist locks, hypoglossal pressure (pressure under the chin), mandibular angle pressure (pressure with the thumb behind the ear), bronchial plexus clavicle notch pressure (pressure to a nerve around the shoulder blade), and infraorbital pressure (pressure on a nerve near the nose) to obtain compliance. (T.T. at 17-58, 17-64, 17-72, 17-83.) According to Fabijancic, his use of these techniques was approved by his Department. (T.T. at 17-83 to 17-84.) According to some of the officers, they attempted to place Swans in a restraint chair in the 6 cell block in accordance with Department policy of using force based on a continuum of force and necessity. This claim, however, was contradicted at trial by the short duration of time that officers had for use of the restraint chair.' (T.T. at 10-122.) It was further contradicted by the fact that Officer Dickson, who visited the cell block after the alleged use of the restraint chair, testified that there was no chair in the cell block. (T.T. at 11-159 to 11-160.)
In any event, the officers involved agree that what followed was the use of their “kick — stop restraint” mechanism on Edward Swans. The kick-stop restraint is a method of restraining a prisoner .with legs and arms tied behind the prisoner’s back to a strap on the prisoner’s waist. According to Officer Diaz, the City of Lansing had used such methods of prisoner restraint on hundreds of prisoners in the Jail over a six-year period. (T.T. at 18-26.) According to the manufacturer of the kick-stop restraint system, prisoners on whom the device is used should not be placed face-down due to the risk of suffocation. (T.T. at 17-145; Exhibit 78; Exhibit 64.) Nevertheless, the Betamax videotape showing the application of the kick-stop restraint in cell 6-2, which began to run at
Other important events not shown on the videotape include the following: At 12:07 noon or later, Lt. Mezzano called an ambulance. (T.T. at 12-139 to 12-140; 9-155.) After Swans was moved from cell 6-3 to the hall, Officer Sherman began rescue breathing. (T.T. at 18-123.) The paramedic who responded to the call, Steven Barnes, arrived at 12:11 noon. (T.T. at 9-149.) At the time Barnes arrived, Sherman was performing rescue breathing on Swans. (T.T. at 9-161.) Barnes then found Swans to be pulseless, comatose and breathless with fixed and dilated pupils. (T.T. at 9-150.) According to Barnes and Dr. Henry Landsgaard, M.D., the treating physician., the crucial period to begin rescue breathing is four to six minutes from the time of last respiration because without it in four to six minutes the patient will have irreversible brain damage and die. (T.T. at 9-136, 12-98.) Barnes also testified that a delay in treating a patient like Swans (who was found in ventricular fibrillation) of five minutes would, in effect, seal his fate. (T.T. at 9-154.) Edward Swans was taken to the hospital by paramedics and pronounced dead by Dr. Landsgaard at 1:02 p.m. (T.T. at 12-109.) Incidentally, at trial, Plaintiff introduced the City’s stipulation that the City “condoned, affirmed and acquiesced in the use of force on [Ed
Additionally, the jury’s verdict was informed by the following expert conclusions rendered by Plaintiffs and Defendants’ experts: Plaintiffs expert Dr. C. Thomas Gualtieri, M.D., a licensed and board-certified psychiatrist, expressed the opinion that Edward Swans was demonstrating symptoms of schizophrenia and was very, very paranoid when confronted by police. (T.T. at 8-190.) He further concluded that the police, when confronted with an obviously schizophrenic person, should have taken Swans for treatment to an emergency room or to the Veteran’s Administration. (T.T. at 8-185.) According to Gual-tieri, had they done so, Swans’ paranoia could have been relieved with an injection of Thorazine in about 20 minutes. (Id.) It was Gualtieri’s opinion that the officers’ decision to arrest and restrain Swans instead of taking Swans for medication and treatment was mystifying in that the officers chose a course of action which not only was wrong medically for Swans, given his obvious condition, but which also compounded the difficulties of the officers in performing their jobs. (T.T. at 8-193.) According to Gualtieri, Swans’ treatment at the hands of police only aggravated his paranoia. (T.T. at 8-195.) Gualtieri expressed the opinion that because of schizophrenia Swans did not understand his situation and was functioning at the mental and emotional level of a three-year-old child. (T.T. at 8-189.) Gualtieri noted that restraints must be applied conservatively when dealing with mentally-ill persons, such as Swans, due to the risk of injury. (T.T. at 8-198.) Gualtieri also shared the view of the coroner that Swans died due to asphyxia caused by the restraint. (T.T. at 8-208.) The opinions of Dr. Gualtieri as to treatment of Swans with Thorazine and similar drugs were echoed by Dr. Harold L. Klawans, M.D., a licensed, board-certified, and world-renowned medical doctor and expert in neurology and pharmacology. (T.T. at 5-52, 5-71). Klawans opined that in light of the medical evidence Swans died by suffocation and not due to cardiac arrest caused by past Thorazine use or the use of any other drug. (T.T. at 5-85 to 5-88.)
Plaintiffs expert Dr. Emanuel Tanay, M.D., a licensed medical doctor, board-certified psychiatrist and recognized-expert in forensic psychiatry, further expressed opinions based on medical evidence, testimony and the videotape. It was Tanay’s opinion that police officers, because of their regular contact with the mentally-ill, need to have some knowledge of mental illness. (T.T. at 3-25 to 3-27.) Tanay also expressed the opinion that Swans was a chronic schizophrenic with periods of acute exacerbation which were regularly treated and that on the day in question he had such an episode. (T.T. at 3-42, 3-53.) Tanay further- opined that the behavior of officers in restraining Swans was group-oriented torture- — conduct which was intended for the infliction of pain. (T.T. at 3-30, 3-55.) According to Tanay, Swans was obviously mentally-ill and should have been directly taken to a hospital for treatment. (T.T. at 3-61.)
Dr. Leonard Territo, Ed. D., a criminologist with practical experience in law enforcement and detention, further testified for the Plaintiff. Dr. Territo testified that it is common and required police procedure to take severely mentally-ill persons to hospital for treatment and that Swans should have been taken for treatment instead of being booked and restrained. (T.T. at 8-37, 8-59.) He further testified that the 10-96 code used by officers refers to an emotionally disturbed individual. (T.T. at 8-45.) He stated his opinions that the “hogtie” restraint of Swans was unnecessary and could have been avoided by simply placing Swans in a cell. (T.T. at 8-68.) He expressed the opinions that placing the weight of several individuals on Swans’ back was an improper restraint technique because of risk of suffocation.
Plaintiffs case was also helped by an opinion expressed by Dr. James F. Cooper, M.D., the Defendants’ expert witness. On cross-examination, Dr. Cooper was asked while viewing the videotape whether it was obvious that Swans, at the time that officers returned to cell 6-2, was in a serious medical condition. Dr. Cooper responded that “I think that would be obvious to anyone.” (T.T. at 24-89.) This was significant because it contradicted the officers’ claims that they did not know at that point of time that Swans needed medical care and it rendered indefensible the conduct of the officers in moving Swans from the cell and re-manacling him in the next cell before summoning medical care.
Based on this and other similar testimony, the jury returned its verdict of damages based on its findings (contained in the Special Verdict Form) that all of the Defendants, except Viele and Szilagyi, had used force which was excessive at the direction of City policy and due to lack of training, that all of the Defendants, except Defendant Layne, had violated Swans’ constitutional rights to medical and psychological care consistent with the lack of City training, that all of the Defendants, except Viele and Szilagyi, had committed a battery against Swans, and that all of the Defendants were grossly negligent.
II. Motion for Remittitur
As mentioned, the first of Defendants’ several motions is a Motion for Remittitur to reduce the jury award of compensatory and punitive damages as excessive. The standard for a remittitur under Federal Rules of Civil Procedure
In this case, the jury awarded 9.8 million dollars jointly and severally against the Defendants for actual damages and 3.125 million dollars against the individual Defendants. There are 10 heirs at law (five adults and five young children) who, by the decedent’s death, were deprived of a future relationship and contributions from the decedent. All of the adult relatives expressed extreme sadness, some bordering on depression, upon the loss of Edward Swans. Furthermore, the onus of the award is evidently for the pain and suffering experienced by Edward Swans prior to his death. The testimony, interpreted in a light favoring the non-movant, established that the Defendants declined to provide necessary medical and psychological care which was clearly and urgently needed and that in restraining him they used excessive force which served no legitimate public purpose and was in fact suffocation and torture. This treatment was inflicted over a prolonged period and in the opinions of the experts called would have been gravely terrifying to a rational person let alone someone possessing diminished understanding, such as Edward Swans. The treatment was inflicted by not one but several officers and reflected regular practices in the City of Lansing Jail by these detention officers. The case law cited as “comparable incidents” do not bear a resemblance to the facts of this case and provide no sufficient reason to reduce a rational and well-reasoned verdict of the Defendants’ peers. There is simply no mathematical formula for computing Plaintiffs pain, suffering, the loss of companionship and society, nor the amount of punitive damages necessary to dissuade the Defendants from similar conduct in the future.
See Kirk v. Ford Motor Co.,
III. Motion for Judgment as a Matter of Law
Defendants also request that the Court set aside the jury verdict under Rules 50 and 59 as a matter of law because the verdict cannot be supported by the evidence submitted at trial. Defendants make this claim in three regards: first, that there was insufficient evidence that the City of Lansing adopted any policy for its officers approving of the unconstitutional conduct alleged here; second, that there was insufficient evidence for the jury to return a verdict against Donald Viele as to failure to provide medical care and gross negligence; and third, that there was insufficient evidence to permit an award against any of the Defendants as to excessive force or battery.
Under the Rules of Civil Procedure and the law of the Sixth Circuit Court of Appeals,
One who challenges the weight of the evidence argues that the jury’s verdict, although supported by some evidence, is-still clearly against the weight of the evidence. Unlike motions for directed verdicts and judgments notwithstanding the verdict, in ruling upon a motion for a new trial based on the ground that the verdict is against the weight of the evidence, the trial court must compare the opposing proofs, weigh the evidence, and set aside the verdict if it is of the opinion that the verdict is against the clear weight of the evidence. TCP Indus., Inc. v. Uniroyal, Inc.,661 F.2d 542 , 546 (6th Cir.1981). It should deny the motion if the verdict is one which could reasonably have been reached, and the verdict - should not be considered unreasonable simply because different inferences and conclusions could have been drawn or because other results are more reasonable. Id.
J.C. Wyckoff & Associates, Inc. v. Standard Fire Ins. Co.,
Defendant City of Lansing’s contention that the evidence against it was insufficient as a matter of law stems from the United States Supreme Court’s holding in
Monell v. Dept. of Social Services,
‘ Defendant Viele’s contention that the evidence against him was insufficient to support liability for denial of medical care is also incorrect. The evidence submitted at trial showed that Defendant Viele violated Swans’ constitutional rights on two instances: first, when he delivered Swans for booking at the Jail instead of taking him for immediate medical care, which was obvious from his condition was necessary on an immediate basis; and second, while he was present in the cell 6 block within sight of Swans after Swans
Finally, Defendants claim that each of the detention officers are entitled to judgment as a matter of law because one could interpret the force used by them as reasonable on the facts of record. This statement, by itself, ignores the legal standard applicable to Rule 50 motions. The question is whether the evidence of record supports the jury’s verdict and not whether a different conclusion might have been reached.
Black v. Zaring Homes, Inc.,
IV. Motion for New Trial
Defendants have requested a new trial pursuant to Rule 59 because of supposed errors in the jury instructions, ■ the verdict form, judicial bias, prejudice caused by trial counsel, errors in the introduction of evidence, and other legal error. A new trial is warranted under the Rule when a jury reached a “seriously erroneous result” as evidenced by: (1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party in some fashion, such as prejudice or bias or instructional error.
Holmes v. City of Massillon,
A. Instructions and Special Verdict Form
Defendants claim that the instructions and verdict form given were prejudicially misleading and failed to properly inform the jury of the law. Under the law, courts must be reluctant to reverse a jury verdict and must review jury instructions “ ‘as a whole in order to determine whether they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury in reaching its decision.’ ”
O-So Detroit, Inc. v. Home Ins. Co.,
In this case, only one formal objection was made to the instructions by Defendants. Counsel requested a more exten
Defendants first complain about Jury Instruction No. 27, that the Court in giving the Monell standards failed to define the terms “policy” or “custom” for the jury. The instruction as issue was a standard instruction for municipal liability under 42 U.S.C. § 1983 taken from 3 E. Devitt, C. Blackmar, and M. Wolff, Federal Jury Practice and Instmctions, § 103.11 (West.Pub.Co.1997 Supp.). The technical meaning of those words was sufficiently conveyed by the instruction such that the failure to include any additional definition was not error, let alone plain error.
Defendants complain that Instruction No. 28, which instructs the jury as to municipal liability premised on failure to train by the City, was errant and confusing. The instruction at issue was taken, almost verbatim, from the language of the Sixth Circuit Court of Appeals in the case of
Matthews v. Jones,
Defendants complain about the failure to adequately define deliberate indifference in Instruction No. 25 and the inclusion of Instruction No. 26. Instruction No. 25 was taken in part from the Eighth Circuit Court of Appeals Manual of Model Jury Instructions, ,§ 4.31. The instruction was modified, as suggested in the Eighth Circuit’s comments, to include an explanation of “deliberate indifference.” The explanation of deliberate indifference is taken almost verbatim from the United States Supreme Court’s definition of that term in
Farmer v. Brennan,
Defendants now object to the Special Verdict Form in that it failed to include a specific finding as to municipal liability. This issue was discussed just prior to the jury’s deliberation and the Court resolved to make the verdict form clear beyond any peradventure by referencing next to the lines for the jury’s findings as to the City’s liability or non-liability the applicable standards for municipal liability contained in Instructions Nos. 27 and 28. The Court having done so, the verdict form was perfectly clear. The objection is denied as meritless. ■
Defendants contend that the verdict form was errant in failing to include specific questions as to proximate cause and deliberate indifference. This objection is likewise meritless. The instructions informed the jury of the requisite elements of liability as to each of the claims. The fact that the jury had to combine some of its findings (as is typical of verdicts) was hardly error, let alone plain error.
B. Judicial Bias or Favoritism
Defendants argue that comments made by the Court prejudiced the jury’s consideration and warrant a new trial. It is well recognized that judges should strive toward an atmosphere of impartiality in court proceedings especially in those cases heard by jury.
Rocha v. Great American Ins. Co.,
In this ease, making a judgment as to judicial comments and bias involves a time-consuming analysis because of the great length of the record. This record reflects frustration on the part of the Court in that counsel for both Plaintiff and Defendants continually failed to heed judicial rulings on objections and failed to heed the Court’s requests that they try the matter expeditiously. (T.T. at 16-155 to 156.) As a result, remarks were made to both counsel to expedite examinations. For instance, on March 18, 1998, the Court lectured both attorneys to avoid improper comments before the jury, to avoid redundant questions, to avoid contentiousness, and to' expedite trial in the interest of “aidfing] us in searching for and getting to the truth.” (T.T. at 7-105.) The Court’s reading of the entire transcript reveals that while negative comments were made regarding both counsel in the presence of the jury that these comments were made even-handedly and do not reflect bias or suggest a result to the jury. Similarly, the Court on many instances made comments to witnesses and asked questions of witnesses to clarify testify. Overall, the comments and questions asked reflect a concern for all parties and all witnesses and a desire that the evidence presented be explained sufficiently to inform the jury’s understanding. During trial, the Court’s comments and questions were repeatedly prefaced with warnings to the jury that it was the final judge of the facts and the credibility of witnesses and that the comments of counsel and the Court were to be disregarded. (T.T. at 16-156; Jury Instruction No. 1.)
Defendants also criticize the Court’s substantive questions of the various witnesses. Dr. Kirkham was asked by the Court about an alternative restraint position. The Court inquired of Kirkham only to clarify what he meant in his testimony and the. question of Kirkham suggested nothing else. Officer Thornburg was asked about the Department policy requiring treatment of a “person requiring treatment” for the purpose of understanding his interpretation of the policy. Chief Boles was asked about a brochure which re-stated matters discussed in his and other witnesses’ testimony and exhibits relating to safe restraint techniques. He was asked these questions to clarify the positions he had taken in his testimony. Overall, the questions asked were fair considering the nature of the trial and did not prejudice substantial rights of the Defendants. Likewise, the Court’s comment to James O’Leary to the effect that lawyers should not ask “why not” of witnesses was only intended to speed the otherwise delayed presentations of evidence. It did not reflect any bias on the part of the Court nor demonstrate impartiality to the-jury any more so than did the Court’s comments to Geoffrey Fieger that some of the testimony he offered was redundant and that he improperly raised his voice on occasion. (T.T. at 7-106, 7-180, 16-154 to 16-155.) Defendants also complain that in two instances the Court used the wrong words to describe events: the word “strangulation” instead of “suffocation” when inquiring of Dr. Territo and in asking during the jail visit about the screen in the booking area. Neither of these instances are significant in the contexts in which they occurred. The word “strangulation” is a rough synonym for “suffocation” and did not confuse the jury since they had the videotape depicting the use of force at issue. Likewise, the question as to the place where Swans was “pushed out agáinst the detention screen” was a question only as to place and implicitly recognized that there was disputed testimony as to the excessiveness of the force used.
This Court has read the entire record of proceedings including the allegedly prejudicial comments and testimony. The parties, doubtless, did not receive a perfect trial just as any court presided over by human judge that tries matters of such duration, complexity, contention and deep personal feelings between the litigants will not render a perfect trial. Regardless,- the parties, both Plaintiff and Defendants, have had a fair hearing before the jury and the jury’s findings should not be disturbed.
C. Misconduct by Plaintiff’s Counsel
Defendants also assert a right to a new trial because of allegedly prejudicial remarks of Plaintiffs counsel, Geoffrey Fieger. As noted by the Sixth Circuit Court of Appeals, “[t]he determination of the extent of permissible comment and argument by defense counsel resides primarily in the sound discretion of the trial judge.”
Sutkiewicz v. Monroe County Sheriff,
Defendants first claim prejudice based on attorney Fieger’s dismissal of the complaint against former Defendant David Dickson (an African-American officer) and a remark made by Fieger during closing which asked the jury to consider whether Edward Swans’ treatment would have been the same had he been white. As to the dismissal, the dismissal of Dickson occurred at the beginning of the trial when the complaints against several other officers, some of whom were presumably white, were also dismissed. (T.T. at 1-184.) The presumptive reason for the dismissal under Federal Rule of Civil Procedure 41 was that the claims against those several officers were not as strong as the claims against the remaining Defendants and would diminish the Plaintiffs case against the remaining Defendants (most of whom were the detention officers directly involved in the restraint). Such a dismissal was unquestionably proper and no objection was made at the time of dismissal. The remarks relating to race were also proper in the context of trial. First of all, there was testimony heard without objection from Plaintiffs expert witness Dr. Tanay that the identity of the victim as black and mentally-ill played a part in the group dynamic which victimized him. (T.T. at 3-90.) In light of such testimony, the comment was properly made. Furthermore, most of the comments referencing race and mental illness were for the purpose of discouraging jury discrimination based on these factors and as such were proper in the utmost.
Defendants object to attorney Fieger’s references in his opening and closing statements to a “conspiracy.” The Defendants’ objections in this regard are unpersuasive. The Court sustained the Defendants’ objection to the word “conspiracy” during opening statements. The Court nevertheless, during trial and closing, allowed testimony relating to the autopsy by Dr. Sienko that Defendants attempted to persuade Dr. Sienko to reach a finding of heart attack caused by manic exhaustion based on the opinions of a Mr. Bruce Siddell (a media consultant who proposed to employ Dr. James Cooper to announce this opinion). (T.T. at 9-20 to 9-22.) This testimony was damaging to Defendants in that it suggested that Dr. Cooper, the Defendants’ expert, uniformly testified in custody death cases regardless of the pertinent facts. (T.T. at 24-72.) The allowance of such testimony and argument was appropriate in light of the facts of record.
Defendants further object to the portion of attorney Fieger’s closing argument which, referring to a statement by Defendant Diaz that he was just following orders, argues that such a defense was tried at Nuremberg and failed. (T.T. at 25-51, 25-175.) There was no objection by defense counsel to the argument during the closing. The making of the argument was not plainly improper and did not prejudice the jury considering that it was specifically directed at refuting an improper defense suggested by Defendant Diaz— that subordinate officers should not be found liable merely because they are subordinates.
Defendants also object now to other statements made by attorney Fieger during his closing including Fieger’s references to the fact that the decedent was allowed to lie in urine, references to “in
D. Evidentiary Objections
Defendants have also requested a new trial based on certain evidentiary rulings made by the Court during trial. Under Federal Rule of Evidence 103, evidence which is improperly allowed over objection warrants relief only if it affects a substantial right of a party. The inquiry of whether evidence is harmless or affects a substantial right involves an assessment of the likelihood that error affected the outcome of the case.
Schrand v. Federal Pacific Elec. Co.,
Defendants’ first evidentiary objection is that the Court erred under Federal Rule of Evidence 407 in admitting evidence that the City of Lansing subsequently changed its policies relating to use of restraints on mentally-ill persons. The Court admitted this evidence under an exception to Rule 407 because the City, through its expert Darryl Ross and its officers, had claimed that its formal restraint policy was necessary and that other alternatives were not feasible.
(See, e.g.,
T.T. at 23-91.) In light of such claims, the evidence was properly admitted under Rule 407 to show feasibility and for the
Defendants claim that the Court erred in admitting the expert testimony of Dr. Tanay. The testimony of Dr. Tanay was admitted with limitations designed to insure that Tanay did not testify improperly about the ultimate issues of fact to be determined by jury. Dr. Tanay, as a renowned forensic psychiatrist, had expert medical and forensic opinions which assisted the jury in understanding the nature, extent and obviousness of Edward Swans’ mental illness, the necessity, appropriateness, and safe means of restraining schizophrenics suffering acute symptoms, and individual and group psychological dynamics which sometimes cause excessive force, abuse of power and torture. Each of these opinions was expressed in a manner designed to leave the ultimate issues of fact for determination by the jury.
See United States v. Sheffey,
Defendants further object to questions of Dr. Sienko which suggested that there was a “conspiracy” to falsely attribute the cause of death. As explained above, the questions of Dr. Sienko were proper under Federal Rules of Evidence 401 and 403 in that they aiding the jury’s understanding of the proximate cause of death of Edward Swans. Also, the Court appropriately limited the use of the word “conspiracy” during the testimony to avoid any confusion or prejudice to the jury. As such, the testimony was properly allowed. Moreover, this testimony itself was so brief and fleeting that it did not substantially affect the Defendants’ rights in the context of the other proofs at trial.
Defendants assert that the Court erred at trial in failing to permit the introduction of the Neuman study — Tom Neuman et al., “Restraint Position and Positional Asphyxia,” 30 Annals of Emergency Med. 578 (1997). The Neuman study purported to establish that in young, healthy individuals who were voluntarily restrained without additional pressure on their abdomen the restraint did not affect blood oxygenation levels. However, such study had no application to Edward Swans’ death because he was not young, healthy, or voluntarily restrained. Edward Swans had a large abdomen. He was restrained against his will and in a violent fashion in which several officers applied pressure to his back. As such, the study would have only been misleading to the jury on the issue of proximate cause. The study would also have been misleading on the issue of gross negligence because the study, published in 1997, did not give the officers in 1996 a reason to believe that their conduct was safe. Accordingly, the evidence was properly excluded under Rules 401 and 403. In addition, the exclusion of the testimony did not harm Defendants because Dr. Klawans, during Plaintiffs testimony, described the findings of the Neuman study and explained why they were not applicable.
Defendants also challenge the admission of evidence relating to the Vine incident. The evidence challenged, discussed earlier, was admitted only after considering the policies under Federal
E. Wrongful Death
Defendants’ final basis for challenging the verdict against it and requesting a new trial is its argument that Title 42 United States Code Section 1983 does not permit the bringing of a wrongful death claim by the estate of a decedent against the state actors responsible for the death. This argument has been rejected by every circuit court of appeals having heard it including the Sixth Circuit Court of Appeals.
See Hall v. Wooten,
V. Motion for Costs and Attorney Fees
This brings the Court to the final matter of the Plaintiffs Motion for Costs and Attorney Fees. This Motion is made pursuant to Federal Rule of Civil Procedure 54 and Title 42 United States Code Section 1988.
Section 1988 of Title 42 of the United States Code is the fee-shifting statute applicable to actions brought pursuant to Section 1983 of Title 42 of the United States Code. The statute permits a prevailing party a reasonable attorney fee and expert fees as to actions brought pursuant to Section 1981 or Section 1981a. In this matter, given the verdict favoring the Plaintiff, the Court determines that the Plaintiff is entitled to a reasonable attorney fee as a prevailing party.
Congress departed from the American rule that parties pay their own attorney fees in enacting Section 1988 in order to encourage quality representation in civil rights cases.
Venegas v. Mitchell,
Under Section 1988, the Court must calculate fees using the lodestar method described by the United States Supreme Court in
Hensley v. Eckerhart,
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Wheré the documentation of hours is inadequate, the district court may reduce the award accordingly.
The district court also should exclude from this initial fee calculation hours that were not “reasonably expended.” S.Rep. No. 94-1011, p. 6 (1976). Cases may be overstaffed, and "the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or' otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. “In the private sector, ‘billing judgment’ is an important component in fee setting. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Copeland v. Marshall,205 U.S.App.D.C. 390 , 401,641 F.2d 880 , 891 (1980) (en banc) (emphasis in original).
Hensley,
Plaintiff has requested fees for its attorneys at rates as much as «$1000 per hour. The $1000 per hour figure is mentioned in connection with the representation by attorney Geoffrey Fieger. Plaintiffs other attorneys have requested fees at rates of $250 per hour or less. Defendants challenge these rates in particular because attorneys, even those specializing in civil rights work, representing clients in the areas of Kalamazoo, Michigan and Western Michigan typically work at market rates less than those requested. As evidence of this, Defendants have filed the' affidavit of attorney James Brady and the Michigan Bar Journal’s, 1997 survey of law firm billing rates and billing practices.
According to the law of this circuit, this Court is required to adjust attorney fee rates to the local market rates for attorneys.
Hadix v. Johnson,
Based on the total hours and rates, the Court computes a lodestar fee as follows: Geoffrey Fieger $147,138.75.; Mark Bendure $4,415.60; Richard Foster $85,381.25; Vernon Johnson $2,500.00; David Cooper $862.50; Kevin Kavanagh $2,200.00; Victor Valenti $4,462.50; Keitha Cowen . $500.00; Jennifer D’Amico $86,-193.10; and Richard Foster’s Paralegal $10,300.00. This adds to a total lodestar fee of $343,953.70. The Court, considering the various factors suggested by the Supreme Court in Hensley for modifying the lodestar fee, nevertheless considers this amount as a just attorney fee award in this case.
Plaintiffs Motion also requests the full amount of expert witness fees incurred in this matter pursuant to Section 1988. This aspect of the Motion is not well-received in light of United States Supreme Court precedent. In
West Virginia University Hospitals, Inc. v.
Casey,
COUNSEL FOR DEFENDANTS
As Footnote One on Page Ten briefly discloses, one lawyer represented all Defendants throughout the trial and pretrial process.
At the final pretrial conference, I had a dialogue on the record with that lawyer, strongly suggesting that each Defendant be represented by separate counsel. I also told him that if there were not separate counsel, I would want a waiver of the apparent conflict of interest on the day trial commenced.
On the first day of trial I neglected to speak to the individual Defendants about the fact that only one lawyer appeared for all Defendants. The jury selection process and the beginning of the trial started before a trial incident occurred which dramatically reminded me of the counsel problem.
Plaintiff offered some “other incident” evidence under Rule 404(b), including notice evidence against Defendant City of Lansing, and against one individual, Defendant Kevin Moore. At that time, I excused the jury and took up the lawyer problem with all Defendants and their lawyer on the record. After explaining conflict generally and specifically referring to the proffered evidence, I recessed to allow Defendants to consider the dangers of joint representation.
I speculated, on the record, that perhaps the City had agreed to indemnify the individual officers and/or that insurance would cover their damages if any. I pointed out, however, that reputations might have greater value than money, particularly in light of the proffered “other Incident” evidence, which was clearly not admissible against seven of eight individual Defendants. I suggested that individual lawyers would emphasize to the jury that the evidence was not admitted against their clients; that individual lawyers might move for severance, etc...
Following a recess, and some colloquy on the record, all Defendants, including the City, waived the apparent conflict. Despite their waiver, I told them I thought they were making a mistake, and that were I in their positions, I would insist on having my own lawyer. My concerns went unheeded, and I did not believe that I had the authority to order the officers to obtain counsel.
That single lawyer, obviously, was unable to deflect evidence from one or more of “his” clients, and as a result all of “his” clients were poorly represented. As an example, after the verdict, one of the officers informed the court of his bankruptcy, and moved the court for relief from the judgment. That motion is pending as this opinion is being penned. Did “his” trial lawyer even know of this bankruptcy?
As the evidence was introduced, it became obvious that Defendants’ single law-yer had not assessed the value of the case, despite having lost a similar case for the same municipal client 4 and against the same lawyer with damages assessed exceeding one million dollars. As a consequence, an opportunity to settle the case was lost to the disadvantage of all of “his” clients.
The evidence of this lawyer’s faulty assessment analysis can be gleaned from an ADR process (Michigan Mediation), from the comments of Plaintiffs counsel about “mock trials” conducted by the Plaintiff, and from the reaction of seven jurors in the instant case.
The cause of justice is not served by this kind of lawyer apathy and ineptitude.
CONCLUSION
In the forty years since I graduated from law school, I have participated in many trials as a lawyer and as a judge. Never have I seen evidence more dramatic than in the instant case. Instead of the usual contradictory testimony about liability facts, this jury watched (many times) video evidence of the awful events that occurred in the last minutes of Edward Swans’ life. In fact this jury apparently watched Swans die.
As if this were inadequate, the jury also witnessed Defendants’ indifference as they first left Swans alone in his cell unattended, and then when they realized, belatedly, that he was dying or dead, they removed him from the cell of his death to another cell where they removed the “hog tie” restraints, and replaced them with less restrictive restraints 5 . This was all done on camera... .and before attempting resuscitation.
Although counsel for the Defendants was unmoved by this drama, every nonparty in the courtroom, including sworn police officers now on security duty, was horrified. The jury’s verdict reflects that horror.
This was almost a case of “justice denied” because, but for the video, there would have been no contradictory evidence to the testimony of the Defendants. Defendant City even tried to suppress or alter the Coroner’s report. This should cause court observers to wonder how many similar cases went unproved without the awful, but truthful eye of the camera. In this case the camera cast a long shadow of shame on the Defendants and their counsel.
It is the oath of every United States Judge or Justice to “administer justice without respect to persons, and to do equal right to the poor and to the rich....” 28 U.S.C. § 453. This Court now upholds its oath in denying the Defendants’ Motions and granting in part the Plaintiffs Motion for Costs and Attorney Fees. The verdict previously rendered by the jury does a small measure of justice to the memory of Edward Swans and to those bereft by his death. It also serves as a reminder to those that would trammel the rights of the poor and helpless that this is a nation of justice. These matters shall be ordered consistent with the Court’s Opinion.
ORDER
Consistent with the Court’s Opinion of this date;
IT IS HEREBY ORDERED that the Defendants’ Motion for Remittitur (Dkt.261), Motion for New Trial (Dkt. No. 268), and Motion for Judgment as a Matter of Law (Dkt.270) are DENIED.
IT IS FURTHER ORDERED that the Plaintiffs Motion for Costs and Attorney Fees (Dkt. No. 266) and Renewed Motion for Costs and Attorney Fees (Dkt. No. 276) are GRANTED IN PART AND DENIED IN PART. Plaintiff is awarded attorney fees pursuant to 42 U.S.C. § 1988 against the Defendants, jointly and severally, in the amount of Three Hundred Forty-Three Thousand Nine Hundred Fifty-Three Dollars and Seventy Cents ($343,-953.70) as of the date of this Order. As of the date of this Order, the Judgment previously entered is AMENDED to reflect the award of attorney fees and shall bear interest in accordance with federal law.
Notes
. Incidentally, prior to commencement of trial, the Court advised each of the individual defendants and the City of Lansing that it was likely that their interests were adverse and that they should employ separate counsel instead of being jointly represented by James O’Leary. At such time, they declined to obtain separate counsel. During trial, when evidence was offered against the City of Lansing and Defendant Moore but not against the other Defendants, the Court again raised the issue and the parties again declined separate representation. It is evident from the jury's verdict that the Defendants’ interests were not well served by the joint representation they elected.
. Furthermore, the jury’s findings against the City are harmless in light of discussions with the parties’ attorneys outside of the presence of the jury, which revealed that the City is contractually bound to indemnify the officers.
. Hours of a paralegal are properly billed as attorney fees according to the United States Supreme Court.
Missouri
v.
Jenkins,
. And one of the same corrections officers.
. It is possible to perceive this “restraint switch” as an attempt to confuse or mask the cause of death issue. It was unworthy of the individual Defendants.