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Hixon v. City of Golden Valley: US District Court : CIVIL PROCEEDURE - motions for new trial or remittitur denied

1 The City was included in the Judgment because (1) it was liable under the doctrine of
respondeat superior and (2) it previously represented to the Court that it would indemnify Hernandez
Aljuan C. Hixon,
Civ. No. 06-1548 (RHK/JSM)
City of Golden Valley, et al.,
Andrew D. Parker, Anthony G. Edwards, Parker Rosen, L.L.C., Minneapolis, Minnesota, for
Jon K. Iverson, Susan M. Tindal, Iverson Reuvers, Bloomington, Minnesota, for
This matter came on for trial before the undersigned and a jury between September
6, 2007, and September 11, 2007. On September 13, 2007, the jury returned a verdict
finding Defendant Mario Hernandez liable under 42 U.S.C. 1983 for violating Plaintiff
Aljuan Hixons Fourth-Amendment right to be from the use of excessive force. The jury
awarded Hixon 8,000 in compensatory damages and 0,000 in punitive damages. On
September 18, 2007, the Court adopted the jurys verdict, and on October 3, 2007, the
Court entered judgment against Hernandez and his employer, the City of Golden Valley (the
in the event of an adverse verdict. (See Order for Judgment (Doc. No. 103) at 2.)
2 Hereinafter, the Court will refer to Hernandez and the City as the Defendants.
These two Defendants2 now move for a new trial or, in the alternative, remittitur of
the damage awards. For the reasons set forth below, the Court will deny the Defendants
I. New Trial
The Defendants seek a new trial based on several evidentiary errors allegedly
committed by the Court. A new trial on the basis of evidentiary errors is warranted only
when the errors were so prejudicial that a new trial, absent the errors, would be likely to
produce a different result. Pointer v. DART, 417 F.3d 819, 822 (8th Cir. 2005) (citation
omitted); see also Fed. R. Evid. 103(a). Moreover, [n]o error in either the admission or
the exclusion of evidence . . . is ground for granting a new trial . . . unless refusal to take
such action appears to the court inconsistent with substantial justice. Harris v. Chand, __
F.3d __, 2007 WL 3342197, at *1 (8th Cir. Nov. 13, 2007) (quoting McPheeters v. Black
& Veatch Corp., 427 F.3d 1095, 1100 (8th Cir. 2005)); accord Fed. R. Civ. P. 61. The
errors cited by the Defendants, whether taken individually or cumulatively, are
insufficient to satisfy this standard.
A. Evidence of race
The Defendants first argue that Hixon improperly injected evidence of race into the
trial, even though that subject had been declared off limits by the Court before the trial
began. (Def. Mem. at 7-10.) The Defendants, however, overstate the Courts pre-trial
rulings. At summary judgment, the Court ruled that Hixons claim of racial
discrimination did not present a genuine issue of material fact, and it dismissed that claim.
As a result of this ruling, it also cautioned Hixon at several pre-trial conferences that
evidence concerning racial discrimination could not be offered at trial.
The Court, however, never declared the subject of race completely off limits at
trial. Indeed, race was a key part of Hixons case, as it was directly relevant to the arresting
officers credibility. In this he said, she said case, such evidence was critical; as one of
the cases cited by the Defendants notes, this claim by a black plaintiff against white police
officers rests largely on the word of [Hixon] against that of the police. Such a case, of
necessity, brings the credibility of the witnesses sharply into focus . . . . Sanders-El v.
Wencewicz, 987 F.2d 482, 484 (8th Cir. 1993) (emphasis added). In particular here, all of
the officers testified at trial that they heard from a police radio transmission that a black
male was involved in the bank robbery. Yet, the radio transmissions concerning the
robbery, which were played for the jury, indicated only that a white male suspect was
involved. Moreover, several of the officers did not indicate in their written reports that
they received broadcast information that a black male was involved in the robbery.
Accordingly, it was appropriate to devote [s]ubstantial time [to] the fact the bank robber
was white and whether the officers knew a black male was associated with the getaway van
(Def. Mem. at 8), because such evidence tended to undermine the officers credibility.
3 Although one such individual psychologist Ginny Jacobs is not a doctor, for ease of
reference the Court refers to Hixons treating medical professionals, including Jacobs, as his treating
4 Similarly, when Jacobs testified that Hixon had been taught by his mother to obey police
officers, no objection was made. Nevertheless, the Court struck that portion of Jacobss testimony sua
sponte. Accordingly, even if the Defendants are correct that this testimony was improper character
evidence under Federal Rule of Evidence 404(a) (Def. Mem. at 10-12), no prejudice resulted
because the testimony was stricken from the record, see, e.g. United States v. Schnurstein, 977 F.2d
449, 455 n.5 (8th Cir. 1992).
In their Reply, the Defendants cite United States v. McBride, 862 F.2d 1316, 1319 (8th Cir.
The Defendants also argue that Hixons treating doctors3 should not have been
permitted to testify about his upbringing in the segregated south during the civil-rights
movement. As the treating doctors testified, however, such evidence highlighted the
reasons for, and the extent of, the post-traumatic stress disorder (PTSD) suffered by
Hixon following his arrest and pepper spraying. Hence, this evidence was relevant to
Hixons damages.
Moreover, the Court notes that much of the race-based evidence now challenged by
the Defendants was unobjected to at trial. For example, the Defendants take issue with
Hixons testimony that, once arrested, he told the officers if this is a black thing, youve
got the wrong black guy. The Defendants neither objected to nor moved to strike that
testimony. The Defendants likewise argue that Hixons treating doctors improperly
testified that Hixon told them that he grew up in the segregated south. No objections were
lodged by the Defendants when that testimony was elicited. See, e.g., Billingsley v. City of
Omaha, 277 F.3d 990, 997 (8th Cir. 2000) (new trial unwarranted based on allegedly
improper statements in closing argument where plaintiff failed to object to statements).4
1988), for the proposition that a partys failure to object to evidence is not fatal and that a district court
may grant a new trial based on the erroneous (yet unobjected to) admission of evidence under the
plain-error rule. (Reply Mem. at 3-4.) Although McBride dealt with plain error in criminal cases, see
id. (citing, inter alia, Fed. R. Crim. P. 52(b)), plain-error review also is available in civil cases, see
Dole v. USA Waste Servs., Inc., 100 F.3d 1384, 1388 (8th Cir. 1996). Yet, plain-error review
applies only in extraordinary circumstances, [when] the error is so prejudicial as to cause a miscarriage
of justice. Id. (alteration in original) (quotation marks omitted). The Court concludes that no
extraordinary circumstances were present here.
5 Because the Court concludes that there was no error concerning race-based evidence, it also
concludes that there was no error in denying the Defendants request for a curative instruction on this
Finally, even if the Court had erred in admitting some of the racial evidence that the
Defendants now challenge, any such errors did not affect the outcome of the trial. The
Defendants argue that evidence of prejudice is manifest from a quote made by a white juror,
after the trial, in an article published in the Minneapolis Star Tribune: Ive thought about it
a million times since the trial. If it had been me, would I have been treated this way? (Def.
Ex. 8 at 3.) Yet, in that same article the same juror stated that race played no role in the
jurys deliberations: We didnt care that he was black, white, purple or green. Our feeling
was, no matter what the circumstances, no human being should be handled that way. (Id. at
Simply put, Hixons claims necessarily relied on at least some evidence touching
upon race. Despite the Defendants protestations to the contrary, it would have been
impossible for this case to have been tried without the jury becoming aware that Hixon is a
black male and that the arresting officers were white. That some evidence of the color of
the participants was before the jury, however, does not mean that Hixon improperly and
prejudicially suggested racial discrimination in proving his case.5
issue. (Def. Mem. at 10.)
6 Hixon testified only about his participation in his universitys alumni association and the local
Lions Club, as well as his work with the Minneapolis police department concerning gang activity in his
neighborhood. The Court precluded Hixon from testifying about his volunteer work in the community,
the recognition he had received for that volunteer work, and his lack of a prior criminal record.
B. Character evidence
The Defendants next argue that the Court improperly permitted Hixon to introduce
evidence of his good character, pointing to (1) Jacobss testimony that Hixons mother
taught him to obey police officers and (2) Hixons testimony that he was a family guy with
a good job a corporate guy. (Def. Mem. at 11.) As noted above, however, the challenged
portion of Jacobss testimony was stricken from the record. (See supra note 4.)
Moreover, Hixons family-guy testimony was brief and provided little more than
background information; it was appropriate to permit him to offer such testimony. See,
e.g., United States v. Blackwell, 853 F.2d 86, 88 (2d Cir. 1988) (no error in admitting
background evidence of defendants prior military service and completion of two years of
college; considerable leeway is allowed . . . on direct examination for proof of facts that
do not bear purely on the legal issues, but merely fill in the background of the narrative)
(citation omitted). The Court excluded a plethora of other references to Hixons standing
in the community that Hixon intended to testify about at trial, because such testimony, in
the Courts opinion, would have crossed the line between background evidence and
character evidence. See Fed. R. Evid. 404(a) (character evidence generally not
admissible).6 The Court perceives no error in its rulings.
7 The fact that Hixon sought extensions was represented to the Court by Hixons counsel.
8 The Defendants also argue that the tax-return evidence was relevant to Hixons damages and
to his credibility. (Def. Mem. at 14-17.) As to the former argument, they assert that Hixons treating
psychiatrist, Dr. John Shiriff, testified at his deposition that the delay in filing tax returns for several years
would be a significant psychological stressor and, accordingly, the jury should have been informed of
that fact when evaluating the cause of Hixons PTSD. (Id. at 15.) Yet, when asked whether such a
delay would be a psychological stressor, Dr. Shiriff answered [w]ell, it would be for me. (Def.
Mem. at 15 (emphasis added).) This in no way suggests that a delay in filing tax returns caused stress
to Hixon or was otherwise related to Hixons PTSD. As for the latter argument, the Court does not
believe that Hixons delay in filing tax returns is a specific instance of truthfulness or untruthfulness that
is appropriate for cross-examination under Federal Rule of Evidence 608(b). See, e.g., United States
v. Escobar, 50 F.3d 1414, 1424 (8th Cir. 1995) (civil tax problems cannot be regarded as indicating
The Defendants also argue that, because the Court (purportedly) erred in admitting
evidence of Hixons good character, they should have been permitted to rebut such
evidence. This argument dies on the vine, because (as discussed above) Hixon did not
proffer improper character evidence. But even if the Defendants were correct that the
Court did improperly permit Hixon to introduce evidence of his good character, the
Defendants argument would nevertheless fail because the rebuttal evidence they point to,
in the Courts opinion, would not have suggested that Hixon lacks good character. The
Defendants claim that they would have informed the jury that Hixon (1) dropped certain
claims prior to trial and (2) delayed filing tax returns for several years. (Def. Mem. at 12-
15.) Yet, a plaintiff may drop claims as a matter of litigation strategy, or for any of a host
of other reasons. Similarly, there is nothing inherently improper about the delayed filing of
tax returns, as long as appropriate extensions are sought (as apparently was the case here).7
Simply put, neither category of evidence would have rebutted the allegedly improper
character evidence permitted by the Court at trial.8
a lack of truthfulness) (citation omitted).
C. Referring to Hixons arrest as lawful
The Defendants next argue that they should have been permitted to refer to Hixons
arrest as lawful, because the Court dismissed (at summary judgment) Hixons Fourth-
Amendment false-arrest claim. (Def. Mem. at 17-18.) They also argue that the Court erred
by not instructing the jury that Plaintiff Aljuan Hixon was lawfully arrested on April 2,
2005. (Id.; see also Defendants Proposed Jury Instruction No. 8 (Doc. No. 66).) This
argument is meritless.
Although the Defendants are correct that the Court previously ruled that there
existed probable cause to effect Hixons arrest, that does not mean that Hixons arrest was
lawful. The critical error in the Defendants argument is that it overlooks that an arrest
can be lawful or unlawful both in the reason (or lack thereof) for the arrest and the
manner in which it is effected. The Courts prior determination that there existed probable
cause to take Hixon into custody does not ipso facto lead to the conclusion that the arrest
was lawfully effected. Hence, instructing the jury that Hixons arrest was lawful would
have been both legally erroneous and likely to confuse the jury on the ultimate issue in this
case. Moreover, the Court made clear in Jury Instruction No. 7 that the officers had
probable cause to take Hixon into custody, and that the officers use of force was the only
issue for the jury to consider:
As you know from the testimony, Mr. Hixons arrest arose out of the robbery
of a US Bank inside a Byerlys supermarket in Golden Valley. It was later
9 The dismissal of the charge could also reasonably be interpreted to suggest that the officers
came up with an ex post facto justification for their use of force. The dismissal of the charge,
therefore, was also relevant to (1) impeach the officers credibility and (2) prove Hixons claim for
punitive damages.
determined that Mr. Hixon was not involved in the bank robbery. Nevertheless,
I have concluded that the Defendant officers had probable cause, or sufficient
reason, to take Mr. Hixon into custody in connection with that robbery. The fact
that the officers had cause to arrest Mr. Hixon in connection with the robbery,
however, does not mean that they had the right to use excessive force when
making that arrest. Therefore, the question that you must answer in this case is
whether the amount of force used by the officers was excessive, or was it
reasonably necessary.
The Defendants also argue that because there existed probable cause for Hixons
arrest in connection with the bank robbery, it was inappropriate for him to introduce
evidence concerning the dismissal of the criminal charge against him. This argument might
have merit if Hixon had, in fact, been referred to the City Attorneys office for prosecution
for the bank robbery. But Hixon was not referred for prosecution for that crime; rather, he
was referred by Hernandez to the City Attorneys office for prosecution for the crime of
obstructing legal process with force. In the Courts view, under the facts of this case the
dismissal of the obstruction charge could reasonably be viewed to suggest that the charge
was baseless in the first place. Hence, there was no error in permitting Hixon to introduce
evidence concerning the dismissal of that charge, because that dismissal was relevant to
Hixons claim that he did not resist the officers efforts with force and, accordingly, that
Hernandez had no basis to use pepper spray on him.9
D. Expert testimony
The Defendants next argue that the Court erred in allowing Hixons treating doctors
to testify. They first assert that Hixon failed to disclose the treating doctors as experts in
accordance with Federal Rule of Civil Procedure 26(a) and the Courts Scheduling Order in
this case. (Def. Mem. at 19-21.) The Defendants raised this same argument prior to trial,
but at the final pre-trial conference they were unable to identify any prejudice they would
suffer as a result of allowing the testimony. Indeed, the Defendants were fully aware that
Hixons treating doctors would testify that he suffered from PTSD, and the Defendants
own expert reached the same conclusion after performing an independent medical
examination on Hixon. Accordingly, even if the Court somehow erred in allowing this
testimony, any such error was harmless.
The Defendants also argue that the treating doctors testimony failed to satisfy
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because the doctors
opined that the arrest caused Hixons PTSD without ruling out other possible causes. (Def.
Mem. at 21-25.) This argument is belied by the record. Indeed, both treating doctors
indicated before trial that they had delved into Hixons background including (1) the lack
of other life-threatening events in his past, (2) his repeated nightmares about his arrest (and
nothing else), and (3) his newfound fear of police officers before concluding that his
arrest, and only his arrest, led to his PTSD. (See Shiriff Aff. 8-15 (Doc. No. 84); Jacobs
Aff. 7-12 (Doc. No. 85).) And, both testified at trial in accordance with their pre-trial
The Defendants also argue that the treating doctors opinions regarding the cause of
Hixons PTSD did not satisfy Daubert because they were based solely on Hixons
perception of the events surrounding his arrest. They argue that an individual cannot suffer
from PTSD based on a perception (like Hixons) that ones life is in danger; rather, they
contend that ones life must have actually been in danger in order to suffer PTSD.
However, the Defendants proffered no expert testimony or other evidence at trial, nor have
they cited any other authority in the instant Motion, indicating that PTSD must be based on
an event that would be considered traumatic to an objective observer, rather than from an
individuals own perspective of the events in question. Indeed, both of Hixons treating
doctors testified at trial that what matters is whether the individual believes he is in a lifethreatening
situation and not whether the situation is actually life threatening. Simply put,
there was no Daubert error here.
The Defendants next argue that Hixons treating doctors were improperly permitted
to testify about the medical tests performed by the Defendants expert, who the
Defendants opted not to call at trial. (Def. Mem. at 26-28.) They argue that the testimony
was hearsay and that the treating doctors lacked foundation to testify about medical tests
performed by someone else. Assuming arguendo that the Defendants are correct, the
Court believes that the admission of such testimony was harmless. Indeed, the tests
performed by the Defendants medical expert merely confirmed Hixons experts opinions;
it was cumulative. Hence, even if the Court had excluded the treating doctors testimony
concerning those tests, the conclusion that Hixon suffered PTSD as a result of his arrest
would have remained unrebutted in the record. Accordingly, there was no prejudice from
the admission of such evidence.
Finally, the Defendants argue that Jacobs improperly testified that, in her opinion,
Hixon suffered a traumatic brain injury as a result of the events in question, since she is not
a medical doctor and is unqualified to render such an opinion. (Def. Mem. at 28-29.) The
Defendants did not object to this testimony, however, and therefore they have waived any
objection to it. Billingsley, 277 F.3d at 997. Moreover, the Defendants thoroughly and,
in the Courts opinion, effectively cross-examined Jacobs on this issue. As a result, even
if there had been error in allowing this testimony, it was not so prejudicial as to warrant a
new trial.
For all of the foregoing reasons, the Defendants have failed to demonstrate that the
alleged evidentiary errors either individually or cumulatively were so prejudicial that a
new trial, absent the errors, would be likely to produce a different result, Pointer, 417
F.3d at 822, or that the denial of a new trial would be inconsistent with substantial justice,
Harris, 2007 WL 3342197, at *1. Accordingly, their Motion will be denied insofar as it
seeks a new trial.
II. Remittitur
The Defendants argue in the alternative to their request for a new trial that the
damages awarded by the jury should be remitted by the Court. In evaluating their argument,
the Court must be mindful that the jurys damages calculations are entitled to deference
remittitur is appropriate only where a jurys verdict is so grossly excessive as to shock the
courts conscience. Am. Bus. Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135, 1146 (8th
Cir. 1986); accord Hite v. Vermeer Mfg. Co., 446 F.3d 858, 869 (8th Cir. 2006) (reduction
appropriate where damages are so grossly excessive [that] the result is monstrous or
shocking). The Defendants contend that remittitur is appropriate here because the
compensatory-damages award (8,000) was extraordinary and with no evidentiary
support and the punitive-damages award (0,000) resulted from the passion and
prejudice of the jury. (Def. Mem. at 29-36.) The Court does not agree.
A. Compensatory damages
Seizing upon language in In re Air Crash at Little Rock, Arkansas, 291 F.3d 503 (8th
Cir. 2002), the Defendants first argue that the compensatory damages awarded here were
excessive because Hixon failed to prove any link between his physical injuries and his
PTSD. (See Def. Mem. at 30 (arguing that damages for mental injury must proximately
flow from physical injuries caused by [an] accident).) Absent that link, the Defendants
argue that Hixon can recover only for his de minimis physical injuries. (Def. Mem. at 30-
31.) This argument is both disingenuous and misleading.
As an initial matter, the Court does not agree that the evidence failed to disclose any
link between Hixons physical injuries and his PTSD. Hixon testified that the pepper spray
made it difficult for him to breathe, which caused him to believe that he was dying, and that
Hernandez stepped on his neck while pepper spraying him, causing swelling and bruising.
Certainly, that testimony is sufficient to link Hixons physical injuries with his PTSD.
More importantly, however, In re Air Crash at Little Rock addressed a very limited
question: under what circumstances are damages for emotional distress recoverable under
10 At oral argument, the Defendants cited Foster v. Metropolitan Airports Commission, 914
F.2d 1076 (8th Cir. 1990), for the proposition that an excessive-force plaintiff cannot recover for
the Warsaw Convention? Prior to In re Air Crash at Little Rock, the Supreme Court had
held in Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991), that the Convention precluded
recovery for purely mental or emotional injuries, but expressly left open the question
whether emotional injuries accompanied by physical injuries were recoverable. Id. at 552-
53. The Eighth Circuit answered that question in the affirmative in In re Air Crash at Little
Rock, holding that emotional damages are recoverable under the Convention to the extent
that they are caused by physical injuries suffered in [an] accident. 291 F.3d at 512
(emphasis added).
The Defendants have ignored that In re Air Crash at Little Rocks holding was
limited only to the Warsaw-Convention context. They have cited no cases applying In re
Air Crash at Little Rock in any other arena, in particular excessive-force cases under
Section 1983. Nor have they cited any excessive-force cases in which courts have declined
to award compensatory damages for mental or emotional injuries absent a proven nexus to
physical injuries. Indeed, such a result would appear to be contrary to well-established case
law. See, e.g., Bauer v. Norris, 713 F.2d 408, 413 (8th Cir. 1983) (Assuming liability is
found under section 1983[,] the jury may assess compensatory damages based upon, inter
alia, . . . the emotional harm suffered (including fear, humiliation and mental anguish) even
though no actual damages are proven . . . .) (emphasis added); Engeseth v. County of
Isanti, Civ. No. 06-2410, 2007 WL 3102074, at *6 (D. Minn. Oct. 23, 2007) (Davis, J.).10
mental or emotional injuries in the absence of physical injuries. The Defendants reliance on Foster is
misplaced. First, as discussed above, Hixon did, in fact, suffer physical injuries as a result of the use of
pepper spray and Hernandez stepping on his neck. Second, and more importantly, Foster did not hold
that an excessive-force plaintiff must prove physical injuries in order to recover for emotional injuries.
Rather, the Foster court held that the fact that the plaintiff did not suffer permanent injuries as a result of
the defendants conduct was relevant in determining whether the amount of force used by the arresting
officer was reasonable. See 914 F.2d at 1082-83.
The Defendants next argue that the compensatory-damages award lacked evidentiary
support. In their view, the fact that Hixon did not proffer any expert evidence concerning
his alleged physical injuries and submitted medical bills totaling only ,739.79 means that
an award of 8,000 in compensatory damages is clearly excessive. (Def. Mem. at 31-
32.) Yet, it was undisputed at trial that Hixon suffered physical effects from the pepper
spray used during his arrest, including burning eyes, excessive coughing and mucous
production, and difficulty breathing, as well as swelling and bruising from Hernandez (who
stands 66 tall and weighs 280 pounds) stepping on his neck. More importantly, the
undisputed evidence at trial clearly established that, since the date of his arrest (more than
2 years ago), Hixon has suffered from severe emotional injuries. Both Hixon and his
treating doctors testified that he suffers from PTSD, is withdrawn, has difficulty
concentrating, experiences frequent and recurrent nightmares and flashbacks to the date in
question, has a newfound fear of police, is depressed, and has been agoraphobic. This
evidence was completely unrebutted by the Defendants in fact, their own expert agreed
that Hixon suffers from PTSD (an opinion that resulted in the Defendants opting not to call
their expert to testify at trial). Moreover, Hixons wife and friends testified as to the
profound impact his arrest has had on his family life and his ability to work, transforming
him from an outgoing, fun-loving person with a nearly photographic memory to a man who
is simply a shell of his former self. (Mem. in Oppn at 24.) Finally, Hixons treating
doctors both opined that there is no end date in sight for Hixons PTSD and that it might
never disappear completely.
Based on these significant, and potentially indefinite, emotional injuries, as well as
the physical effects of the pepper spray used on Hixon during his arrest and Hernandez
stepping on Hixons neck, the Court cannot say that an award of 8,000 in compensatory
damages is so grossly excessive that it shocks the conscience. See, e.g., Edman v.
Marano, 177 Fed. Appx. 884, 888-89 (11th Cir. 2006) (affirming award of 5,000 for
emotional-distress damages in false-arrest and excessive-force case); Ruiz v. Gonzalez
Caraballo, 929 F.3d 31, 34 (1st Cir. 1991) (affirming 0,000 compensatory-damage
award in excessive-force case based on plaintiffs severe and ongoing PTSD); Ibanez v.
Velasco, No. 96 C 5990, 2002 WL 731778, at *10-12 (N.D. Ill. Apr. 25, 2002) (declining
to reduce .5 million compensatory-damage award in excessive-force case despite fact
that plaintiffs physical injuries were not severe and plaintiff proffered only ,737.33 in
medical bills, because of plaintiffs significant emotional injuries, including PTSD).
Accordingly, remittitur of that award is unwarranted.
B. Punitive damages
In their final argument, the Defendants assert that the jurys 0,000 punitivedamages
award must be reduced, claiming that it was the result of passion and prejudice.
11 State Farm and BMW addressed whether excessively high punitive-damages awards are
unconstitutional because they violate a defendants due-process rights. Here, the Defendants have
nowhere argued that the punitive damages awarded by the jury were unconstitutional; rather, they
assert only that the punitive damages resulted from passion and prejudice. The two are one-and-thesame,
however. See TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 467 (1993) (Kennedy,
J., concurring) (When a punitive damages award reflects bias, passion, or prejudice on the part of the
jury, . . . the Constitution has been violated.).
The Defendants argument is not persuasive.
In evaluating whether a punitive-damages award is reasonable, a district court must
consider several guideposts set forth by the Supreme Court in State Farm Mutual
Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), and BMW of North America,
Inc. v. Gore, 517 U.S. 559 (1996).11 In particular, a court should consider (1) the
reprehensibility of the defendants conduct, (2) the ratio between the actual harm inflicted
and the punitive-damages award, and (3) civil or criminal penalties authorized or imposed
for comparable misconduct. BMW, 517 U.S. at 574-75, 583. The reprehensibility factor
which must be the Courts dominant consideration, Williams v. ConAgra Poultry Co., 378
F.3d 790, 796 (8th Cir. 2004) itself includes five factors to consider, namely, (1)
whether the harm caused was physical as opposed to economic, (2) whether the defendants
conduct evinced an indifference to or a reckless disregard for the health or safety of others,
(3) whether the victim was financially vulnerable, (4) whether the conduct involved
repeated actions or was an isolated incident, and (5) whether the harm was the result of
intentional malice, trickery, or deceit, or mere accident. Diesel Mach., Inc. v. B.R. Lee
Indus., Inc., 418 F.3d 820, 839 (8th Cir. 2005). These factors militate against reduction of
the punitive-damages award.
First, there can be little doubt that the jury had a sufficient evidentiary basis to
determine that the challenged conduct here was clearly reprehensible. The jurys verdict
indicates that it believed Hixon when he testified that he did not struggle with the arresting
officers and that he was twice sprayed with pepper spray at point-blank range, despite his
lack of resistance, after he had already been handcuffed, and did not believe the
Defendants testimony concerning these events. As the Defendants own use-of-force
expert testified, using pepper spray in that fashion and under those circumstances was
wholly unnecessary and improper, and it certainly evinced both malice and indifference to
Hixons health and safety. Moreover, the pepper spray caused significant physical and
emotional harm to Hixon. In the Courts view, the Defendants conduct is precisely the
type that warrant[s] the imposition of [punitive damages] to achieve punishment or
deterrence. State Farm, 538 U.S. at 419.
Second, the ratio between the actual harm caused and the punitive-damages award is
not excessive. The jury awarded 0,000 in punitive damages after awarding 8,000 in
compensatory damages; the ratio between these two figures is less than 2-to-1. While the
Supreme Court has declined to draw any mathematical bright lines between constitutional
and unconstitutional punitive-damage ratios, it has noted that few awards exceeding a
single-digit ratio between punitive and compensatory damages are acceptable. Id. at 425.
12 The Defendants disingenuously argue that the punitive damages were over 58 times
[Hixons] actual damages (Def. Mem. at 33; accord Reply Mem. at 5), citing the fact that Hixon
proffered medical bills totaling less than ,000. Their argument ignores that the actual damages
awarded to Hixon were 8,000 and were not limited to the medical bills he introduced at trial.
13 Section 609.224 makes it unlawful to intentionally inflict[] . . . bodily harm upon another.
Minn. Stat. 609.224, subd. 1(2). Bodily harm means, inter alia, physical pain or injury . . . or any
impairment of physical condition. Minn. Stat. 609.02, subd. 7.
14 An unjustified pepper spraying could be considered assault in the third degree under
Minnesota Statutes section 609.223, subdivision 1, which includes greater penalties (a ,000 fine
and imprisonment for up to five years) than those available under Section 609.224. The pertinent
difference between assault in the third degree and assault in the fifth degree is that the former requires
Here, the ratio is well within the single-digit range.12
Third, the criminal penalties available for misconduct comparable to that at issue
here support the punitive-damage award. At a minimum, the unwarranted pepper spraying of
another person constitutes an assault in the fifth degree under Minnesota Statutes section
609.224.13 The fine that may be imposed for such conduct is ,000, and the offender may
be jailed for up to one year. Id. Although the punitive damages here are much in excess of
the fine that could [have] be[en] imposed under Minnesota law, Pac. Mut. Life Ins. Co. v.
Haslip, 499 U.S. 1, 23 (1991), the possibility of a jail sentence helps to ameliorate that
disparity, see id. (punitive-damages award upheld despite wide gap between possible fine
and award, since incarceration was also authorized under state statute); see also Stogsdill v.
Healthmark Partners, L.L.C., 377 F.3d 827 (8th Cir. 2004) (applying Arkansas law)
(reducing jurys punitive-damages award from million (500 times the state-law penalty)
to million (200 times the state-law penalty) where state statute also authorized
imprisonment for up to six years for similar conduct).14
substantial bodily harm while the latter requires only bodily harm. Substantial bodily harm means,
inter alia, bodily injury . . . which causes a temporary but substantial loss or impairment of the function
of any bodily member or organ. Minn. Stat. 609.02, subd. 7a. It is unclear whether Hixons
physical and mental injuries would satisfy this definition.
Insofar as all of the relevant factors weigh against remittitur, the Court will not
reduce the punitive-damages award.
Based on the foregoing, and all the files, records, and proceedings herein, the Court
concludes that a new trial is not necessary in order to comport with substantial justice,
Harris, 2007 WL 3342197, at *1, and that the damages awarded by the jury are not so
grossly excessive [that] the result is monstrous or shocking, Hite, 446 F.3d at 869.
Accordingly, IT IS ORDERED that Defendants Motion for New Trial or in the Alternative
Remittitur (Doc. No. 146) is DENIED.
Dated: November 29, 2007 s/Richard H. Kyle
United States District Judge


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