09-5201-cv
     Payne v. Jones




 1                                     UNITED STATES COURT OF APPEALS
 2                                         FOR THE SECOND CIRCUIT


 3                                                       August Term, 2010

 4     (Argued: December 14, 2010                   Decided: October 3, 2012   Amended: February 15, 2013)


 5                                                    Docket No. 09-5201-cv


 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

 7   JAMES EDWARD PAYNE,

 8                       Plaintiff - Appellee,

 9   v.

10   OFFICER BRANDON JONES,

11                       Defendant - Cross Claimant - Appellant

12   CITY OF UTICA,

13                       Defendant - Cross Defendant - Appellant

14   -------------------------------X



15   Before: JACOBS, Chief Judge, McLAUGHLIN and LEVAL, Circuit Judges.

16          Defendant Officer Brandon Jones appeals from a judgment of the United States District
17   Court for the Northern District of New York (Hurd, J.), entered pursuant to a jury verdict,
18   awarding compensatory and punitive damages to Plaintiff James Edward Payne on claims of
19   excessive force and battery against the defendant police officer. Defendant Jones challenges the

                                                                        1
 1   district court’s denial of a continuance after a medical emergency prevented him from attending
 2   the first three days of the five-day trial. He also contends that the $300,000 punitive damages
 3   award is excessive. The Court of Appeals (Leval, J.) concludes that the district court did not
 4   exceed its discretion in denying the continuance, but concludes that the punitive damages award
 5   is excessive. Accordingly, the punitive damages award is VACATED, and the case is
 6   REMANDED for a new trial on punitive damages, unless Plaintiff agrees to accept a reduced
 7   punitive damages award totaling $100,000.


 8                                                 FRANK POLICELLI, Utica, NY, for Appellee.

 9                                                 PATRICK G. RADEL, Getnick Livingston
10                                                 Atkinson & Priore LLP, Utica, NY (Michael E.
11                                                 Getnick, on the brief), for Cross Claimant -
12                                                 Appellant.

13                                                 Linda S. Fatata, Corporation Counsel, Utica, NY
14                                                 (Armond J. Festine, Assistant Corporation Counsel,
15                                                 on the brief), for Cross Defendant - Appellant.


16   LEVAL, Circuit Judge:

17          Defendant Brandon Jones, a former officer in the Utica Police Department, appeals from

18   the judgment of the United States District Court for the Northern District of New York (Hurd,

19   J.), entered pursuant to a jury verdict, awarding compensatory and punitive damages to Plaintiff

20   James Edward Payne on his claims against Jones of excessive force and battery. Jones contends

21   that the district court erred in denying a continuance to accommodate his inability to attend the

22   first three days of the five-day trial due to a medical emergency. Jones also argues that the

23   $300,000 punitive damages award is excessive.

24          We conclude that the district court did not exceed its discretion in refusing to grant a

25   continuance because the court’s decision was neither arbitrary nor prejudicial to Jones’s defense.

26   On the other hand, we agree with Jones that the punitive damages award of $300,000 is

27   excessive, and we conclude that a reduced award of $100,000 would more accurately reflect the

                                                      2
1    severity of Jones’s misconduct. We therefore remand for a new trial on punitive damages, unless

2    Payne agrees to remit $200,000 and accept a punitive damages award totaling $100,000.1

3                                            BACKGROUND

4           We view the facts in the light most favorable to Payne, who was the prevailing party at

 5   the jury trial below. See Jacques v. DiMarzio, Inc., 

, 195 (2d Cir. 2004). Payne is a

 6   decorated Vietnam War veteran who suffers from severe post-traumatic stress disorder as a result

 7   of his military service. In the early morning hours of September 11, 2007, Payne was taken by

 8   his wife and son to the emergency room at Faxton-St. Luke’s Healthcare hospital after

 9   accidentally cutting his thumb. Payne was combative and disoriented when he arrived at the

10   emergency room.

11          Because of Payne’s combativeness, responding officers Brandon Jones and John Abel

12   placed him under arrest pursuant to N.Y. Mental Hygiene Law § 9.41, which authorizes the

13   arrest of a person who appears to be mentally ill and acts in a manner likely to result in serious

14   harm to himself or others. The officers called for an ambulance to transport Payne to St.

15   Elizabeth Medical Center, the nearby hospital assigned to receive people arrested under § 9.41.

16   While a paramedic was examining Payne, Jones slapped the side of Payne’s head. After a

17   struggle in which Payne resisted the officers’ efforts to handcuff him and place him on a gurney,

18   Payne was loaded into the ambulance and taken to St. Elizabeth. Jones followed the ambulance

19   in his squad car.



            1
              The City of Utica, a defendant at trial and an appellant and cross defendant on appeal,
     contends that it is not obligated to indemnify Jones for the award of punitive damages. This
     argument is without merit and is disposed of in a summary order filed concurrently with this
     opinion.

                                                      3
 1             At St. Elizabeth, Payne resisted Jones’s efforts to move him from the ambulance gurney

 2   into an individual room in the emergency room’s mental health unit. Jones wrapped Payne in a

 3   bear hug and pushed him into the room. As Jones was placing Payne on the bed, he noticed

 4   Payne’s Marine Corps tattoos and said “Marines are pussies.” In response, Payne kicked Jones

 5   in the groin area. Jones reacted by punching Payne in the face and neck seven to ten times and

 6   kneeing him in the back several times. Payne, who was still handcuffed, defended himself by

 7   putting his hands up to cover his face and rolling on the bed to turn his back toward Jones. A

 8   nurse rushed forward and grabbed Jones, who then stopped punching Payne. The attack lasted

 9   30 seconds or less. A doctor examined Payne and found that his face was bloody and swollen,

10   and that his upper back was reddened. Payne later testified at trial that the beating aggravated

11   his existing back pain and his post traumatic stress disorder. There was no evidence of any other

12   injury.

13             The doctor reported Jones to the Utica Police Department, which conducted an

14   investigation into the attack. The Department’s Professional Standards Unit found that Jones

15   had committed an egregious assault on Payne and had lied about the incident to police

16   investigators. Ultimately, Jones was terminated.

17             On February 7, 2008, Payne brought a civil action in the United States District Court for

18   the Northern District of New York against Jones, the City of Utica, Abel, and the chief of the

19   Utica Police Department. Payne alleged under 42 U.S.C. § 1983 that Jones used excessive force

20   in violation of the Fourteenth Amendment. Payne also alleged that Jones had committed a

21   battery in violation of state law. A jury trial was scheduled to begin on September 14, 2009.




                                                       4
 1          At about 5:00 a.m. on September 14, Jones checked in to St. Luke’s hospital complaining

 2   of bleeding and an inability to control his bowels. Jones’s attorney, Michael Getnick, Esq.,

 3   informed the court that Jones would be kept under observation for “at least two days,” and that

 4   surgery was a possibility. Payne v. Jones, No. 09-5201, Joint Appendix (“JA”) 66 (Aug. 16,

 5   2010). Getnick asked the court to delay the trial indefinitely to “wait to see what the doctor’s

 6   prognosis is, and what the schedule is to see if he will be confined, and if so, for how many days

 7   . . . .” JA 67. Getnick acknowledged that, at that point, his only source of information was

 8   Jones’s wife, but he offered to provide a treating doctor’s affidavit describing his client’s

 9   condition. Payne’s counsel opposed a continuance, asserting that Jones would not be prejudiced

10   if the trial proceeded in his absence. The district court decided to proceed with jury selection

11   and opening statements, but it delayed the start of testimony until the next day, September 15, to

12   give Getnick an opportunity to submit a medical affidavit. Getnick then asked the court to

13   inform the venire members that Jones was in the hospital. The court declined to mention the

14   hospitalization without evidence that Jones was indeed at the hospital. Instead, the court told the

15   venire members that Jones “is not here today through no fault of his own. We hope—he wanted

16   to be here, and we hope he will be . . . .” JA 69.

17          After the jury was impaneled and the opening statements were delivered, the court

18   dismissed the jury for the day. Getnick then presented the court with a doctor’s affidavit, which

19   described Jones’s illness and indicated that Jones might recover sufficiently to be able to attend

20   the trial by September 15 or 16 so long as he continued to improve and did not require surgery.

21   See JA 89. The district court stated that the trial would resume the following morning,

22   September 15, in the absence of further updates about Jones’s status.


                                                       5
1           Before calling in the jury on the morning of September 15, the court inquired into Jones’s

2    availability. Jones’s attorney reported that he did not think that his client would be able to attend

3    the trial that day because “the doctors are not in agreement” about whether Jones would need

4    surgery. JA 91. Getnick continued: “So I think they will make a decision this morning. . . .

5    [T]hree doctors . . . are making the decision, the surgeon, the internist, and the

 6   gastroenterologist.” JA 91. The court acknowledged this information and summoned the jury.

 7   Payne began presenting his case. He called, among others, the doctor and the nurse who had

 8   witnessed the attack at St. Elizabeth to testify.

 9          The next day, September 16, the court again asked for an update on Jones before

10   summoning the jury. Jones’s attorney said his client was expected to be released that afternoon

11   or evening, and would be present either September 17 or 18. He said that he was “hopeful that

12   [Jones] will be in court and ready to testify on” September 18, as long as Jones “has been

13   weaned off the medication that he is on.” JA 136. The district court again decided to proceed

14   with the trial. Payne called a few more witnesses and rested. The parties and the court then

15   agreed that, in view of Jones’s unavailability, Abel would put on his defense first. The court

16   explained to the jury that Abel would be presenting his defense out of order because “Mr. Jones

17   became ill Sunday evening, and it was too late to call off the trial . . . . [W]e have learned that he

18   will be available either tomorrow afternoon or Friday [September 18] morning to be here and

19   testify.” JA 169. The court then told the jury that, if Jones was still unable to testify on

20   September 18, Jones’s attorney would be given permission to read the entire transcript of Jones’s

21   pretrial deposition.




                                                         6
1           Jones was present at the trial the following day, September 17. The court introduced him

2    to the jury members, reminding them that, “as I told you yesterday afternoon, Mr. Jones was

3    somewhat ill for a couple of days, and I confirmed that he was, in fact, ill so there is no question,

4    but he has now fortunately joined us. And, Mr. Jones, would you please stand so that the jury

5    can — okay.” JA 196. That same day, Jones took the stand to testify in his own defense. The

 6   court prohibited Getnick from asking about the nature and extent of Jones’s illness, explaining

 7   that “the jury has been advised that he was ill the last couple of days and confirmed. We don’t

 8   need to get into any details . . . . It is irrelevant.” JA 208. Getnick then asked that Jones be

 9   allowed to say that he had been in the hospital, but the court denied this request on the ground

10   that mentioning the hospital might cause the jury to feel sympathy for Jones and unfairly

11   prejudice Payne. After summoning the jury, the district court explained: “Members of the jury,

12   the next witness will be the defendant, Brandon Jones. I want to emphasize for you that the last

13   couple of days I have confirmed that he was ill, and he wanted to attend this trial. He was unable

14   to be here because of his physical condition for the last two or three days. . . . I am instructing

15   you that you should not in any way hold it against him because he was not here for the first

16   couple of days of trial.” JA 209.

17          Witness testimony concluded on Friday, September 18, and the court charged the jury.

18   On September 21, the jury returned a verdict finding that Jones had used excessive force in

19   violation of the Fourteenth Amendment and had committed battery in violation of state law. The

20   jury awarded Payne $60,000 in compensatory damages and found that he was entitled to punitive

21   damages. Abel was found not liable.




                                                       7
1           The court reconvened the jury on September 24 to determine the amount of punitive

2    damages. Stephen Dolan, a prisoner at Oneida County Jail, testified that Jones had used

 3   excessive force against him in 2004. Dolan stated that he had been ejected from a restaurant and

 4   was sitting in the lobby waiting for a bus when Jones and another officer approached him and

 5   asked to see identification. Dolan complied and Jones then began to pat him down. After Dolan

 6   protested, Jones struck him in the face and knocked him to the ground, causing injuries that

 7   required four stitches. Dolan was then placed under arrest for disorderly conduct and resisting

 8   arrest. Two police officers called by Jones disputed Dolan’s version of events. They testified

 9   that Dolan had resisted arrest and that Jones had used appropriate force to subdue him. The jury

10   returned a verdict awarding Payne $300,000 in punitive damages.

11          Jones moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure

12   50(b), or, in the alternative, for a new trial pursuant to Rule 59. JA 308. Jones contended that

13   the court had erred in denying his request for a continuance, which resulted in him missing three

14   of the five days of trial. The court denied the motion, stating that it found no prejudice to Jones.

15   The court also noted that witnesses scheduled to testify for Payne, including a doctor and a

16   nurse, “would have been difficult to reschedule.” JA 309.

17          Jones also argued that the jury’s awards of compensatory and punitive damages were

18   excessive and should be set aside. The court, however, found that the awards were within

19   permissible bounds because the beating was “severe,” the victim was defenseless and mentally

20   ill, and the assailant was a police officer who had used excessive force in the past. JA 309. With

21   respect to the punitive damages award, the court added that “the five to one ratio of punitive to

22   compensatory damages is reasonable.” JA 309.


                                                      8
 1                                                DISCUSSION

 2   I. Denial of the Continuance

 3               A party’s demand for an adjournment of a civil trial until the party can make a personal

 4   appearance “is entrusted to the sound discretion of the trial judge.” Davis v. United Fruit Co.,

 5   

, 330 (2d Cir. 1968); see also United States v. Cusack, 

, 349 (2d Cir.

 6   2000) (per curiam) (“A district court has broad discretion to grant or deny a motion for a

 7   continuance.”). “This Court will affirm orders denying continuances unless there is a showing

 8   both of arbitrariness and of prejudice to the defendant.” Farias v. Instructional Sys., Inc., 259

 

, 100 (2d Cir. 2001). Because we find neither arbitrariness nor prejudice, we reject

10   Jones’s claim of entitlement to a retrial based on the court’s refusal to grant him an adjournment

11   of trial.

12               Jones has made no persuasive showing that he suffered any significant prejudice. As an

13   initial matter, we note that the absence of a party from part or all of a civil trial is not per se

14   prejudicial. See, e.g., Lamb v. Globe Seaways, Inc., 

, 1353 (2d Cir. 1975) (“This

15   Circuit has consistently upheld the practice of denying trial continuances in cases in which a

16   party or a witness was absent from the trial.”); United Fruit, 402 F.2d at 330 (where the absent

17   plaintiff’s deposition was used by his counsel in place of his live testimony, court rejected

18   plaintiff’s claim that “his case was not presented ‘in its best light’ because of the court’s refusal

19   to grant a continuance until [he] could make a personal appearance at his trial”).

20               In Morrissey v. National Maritime Union of America, 

 (2d Cir. 1976)

21   (Friendly, J.), one of the defendants in a civil lawsuit fell seriously ill a few days before the jury

22   trial. See id. at 31. The district court denied his motion for a continuance, and he ultimately


                                                         9
1    missed the entire trial. See id. Given the defendant’s absence, the court allowed the defendant’s

 2   pretrial deposition, which had been taken by the plaintiff, to be read in its entirety. See id.

3    Although claiming prejudice, the defendant failed to identify anything he would have testified to

4    that was not included in the deposition testimony that was read to the jury. Noting that the

5    “deposition seem[ed] to have covered the very topics on which [the defendant’s] live testimony

6    presumably would have been most helpful to the defense,” id. at 32, we concluded the defendant

7    had failed to establish any prejudice.

8           Jones, unlike the defendant in Morrissey, was present for two of the five days of trial and

9    took the stand in his own defense. He was able to provide all his material testimony to the jury

10   in person.2 He makes no contention that his absence during the early days of trial in any way

11   impaired his ability to give testimony that would have aided his defense.3

12          Jones contends he was prejudiced because the jurors must have formed unfavorable “first

13   impression[s]” of him from seeing his “empty chair” for three days, and that those negative

14   impressions “ultimately resulted in a finding of liability and a punitive damages award.” Def.

15   Jones Br. at 24-25, 31. He asserts that the district court then exacerbated this prejudice by

16   refusing to tell the jury that he was hospitalized and describing him instead as “somewhat ill,”

17   which may have raised doubts in the jurors’ minds about the legitimacy of his absence.




            2
              On the third day of trial, the district court indicated that, if Jones was unable to testify
     on the fourth or fifth days, Jones’s attorney would be allowed to “read to [the jury] the entire
     deposition under oath of Mr. Jones or if he has a transcript of any other proceedings of Mr. Jones
     where he gave testimony under oath . . . .” JA 169.
            3
             Jones also makes no contention that his absence during the testimony of plaintiff’s
     witnesses made him unaware of materially inaccurate aspects of their testimony that he could
     have rebutted.

                                                      10
 1          We disagree. The court protected against any negative impressions that the jurors might

 2   have formed by telling them several times that Jones was absent involuntarily due to illness. See

 3   JA 69 (noting at the start of jury selection that Jones could not attend “through no fault of his

 4   own”); 169 (explaining that Jones had fallen “ill”); 196 (same); 209 (same, and specifically

 5   instructing the jury not to hold Jones’s absence against him). We find no error in the court’s

 6   decision to omit details of Jones’s illness and to bar him from testifying about the nature of his

 7   illness. As the court observed, such details could evoke sympathy for him, thereby unfairly

 8   prejudicing Payne, and would raise irrelevant disputed areas that would distract the jurors from

 9   what was properly in controversy.

10          Jones argues further that the denial of the continuance prevented him from assisting his

11   attorney during the jury selection and the cross-examinations of Payne’s witnesses. It is

12   sufficient response that Jones identifies no respect in which he would have improved his

13   attorney’s effectiveness in either undertaking. Cf. United States v. Seschillie, 

,

14   1217 (9th Cir. 2002) (rejecting the defendant’s argument that an expert excluded by the district

15   court was needed to advise counsel because the defendant “has not identified any missed

16   avenues of cross-examination which would have been potentially fruitful”); Opus 3 Ltd. v.

17   Heritage Park, Inc., 

, 629 n.2 (4th Cir. 1996) (rejecting a party’s argument that an

18   expert sequestered by the court was needed to advise counsel on the ground that the party failed

19   to show any specific harm that resulted from the sequestration).

20          Nor do we find any abuse of discretion in the trial court’s handling of the issue,

21   especially in view of Jones’s failure to make a persuasive showing to the trial court of any

22   respect in which he would be prejudiced by denial of the continuance. The request for a


                                                      11
 1   continuance was made by Jones’s attorney only moments before the start of jury selection on the

 2   first day of trial, and was based solely on what Jones’s wife had told the attorney. There was no

 3   confirmation of any kind from more reliable sources; nor was there a showing that time had

 4   prevented securing more reliable information. Cf. Lopez v. Aransas Cnty. Indep. Sch. Dist., 570

 

, 544 (5th Cir. 1978) (“The trial court’s denial of plaintiff’s eleventh-hour oral motion

 6   for a continuance was well within its discretion . . . .”). The court was further justified by the

 7   difficulty of rescheduling the appearance of the healthcare professionals who were scheduled to

 8   testify for the plaintiff, as well as by the uncertainty as to when Jones would be able to return to

 9   court.

10            Trial courts “necessarily require a great deal of latitude in scheduling trials” because

11   trials are difficult to administer from a logistical and organizational standpoint. Morris v.

12   Slappy, 

, 11 (1983). “Not the least of their problems is that of assembling the

13   witnesses, lawyers, and jurors at the same place at the same time . . . .” Id. The Supreme Court

14   has recognized that the existence of all these complexities “counsels against continuances except

15   for compelling reasons.” Id. Because continuances can be highly disruptive to the courts and

16   the parties, especially when granted close to the start of trial, see, e.g., United States v. Rivera,

17   

, 1475 (10th Cir. 1990) (“[A]ny continuance granted practically on the eve of trial

18   inevitably will disrupt the schedules of the court, the opposing party, and the witnesses who have

19   been subpoenaed or who have voluntarily arranged their schedules to attend the trial. When, as

20   here, a jury trial is involved, there is additional potential inconvenience to jurors and to the

21   court.”); cf. Moffitt v. Ill. State Bd. of Educ., 

, 873 (7th Cir. 2001) (“One naturally

22   expects the plaintiff to be present and ready to put on her case when the day of trial arrives. . . .


                                                       12
 1   [T]rial dates—particularly civil trial dates—are an increasingly precious commodity in our

 2   nation’s courts.”), trial courts are entrusted with broad discretion to decide whether the stated

 3   purpose of a continuance warrants the disruption and delay of granting one, see Slappy, 

   at 12. And when we review the denial of a continuance, “[w]e ask not what we ourselves might

 5   have done, but whether the district judge abused his discretion in deciding to act as he did.”

 6   Moffitt, 236 F.3d at 873.

 7          In conclusion, we find neither prejudice nor arbitrariness in the trial court’s decision to

 8   proceed with the trial in Jones’s absence.

 9   II. Excessiveness of the Punitive Damages Award

10          Jones claims that the $300,000 punitive damages award to Payne was excessive and

11   should be set aside. We agree that the award is excessive, and we remand for a new trial on

12   punitive damages unless Payne accepts a reduced award of $100,000.

13      A. Role of Courts in Reviewing Jury Awards of Punitive Damages

14          Awards of punitive damages are by nature speculative, arbitrary approximations. No

15   objective standard exists that justifies the award of one amount, as opposed to another, to punish

16   a tortfeasor appropriately for his misconduct. Nor is there any formula to determine the dollar

17   amount needed to effectuate deterrence. See Mathias v. Accor Econ. Lodging, Inc., 

   672, 678 (7th Cir. 2003) (“[I]t is inevitable that the specific amount of punitive damages awarded

19   whether by a judge or by a jury will be arbitrary.”); Robert D. Cooter, Economic Analysis of

20   Punitive Damages, 56 S. Cal. L. Rev. 79, 79 (1982) (“There is no clear standard . . . for

21   computing [the] magnitude [of punitive damages] when awarded.”).




                                                      13
1           Even if there is no such thing as a correct amount of punitive damages, a legal system

2    has an obligation to ensure that such awards for intangibles be fair, reasonable, predictable, and

3    proportionate. See Exxon Shipping Co. v. Baker, 

, 499 (2008) (“Courts of law are

 4   concerned with fairness as consistency . . . .”); id. at 502 (“[A] penalty should be reasonably

 5   predictable in its severity . . . . [T]he penalty scheme [similarly situated tortfeasors] face ought

 6   to threaten them with a fair probability of suffering in like degree when they wreak like

 7   damage.”). When a jury undertakes to set the amount of a punitive damages award, it has

 8   nothing to rely on other than the instincts of the jurors and random, often inaccurate, bits of

 9   information derived from press accounts or word of mouth in the community about how such

10   intangibles have been valued in other cases. See Cooper Indus., Inc. v. Leatherman Tool Grp.,

11   

, 432 (2001) (a jury’s “imposition of punitive damages is an expression of its moral

12   condemnation,” rather than an exercise of fact-finding); id. at 439 (“it is clear that juries do not

13   normally engage in [] a finely tuned exercise of deterrence calibration when awarding punitive

14   damages”). Having no objective standards to guide them, and understandably outraged by the

15   bad conduct of the defendant, jurors may be impelled to set punitive damages at any amount.

16   Regional biases against particular companies, furthermore, may fuel unreasonable awards. See

17   Honda Motor Co. v. Oberg, 

, 432 (1994) (expressing concern that “juries will use

18   their verdicts to express biases against big businesses, particularly those without strong local

19   presences”). The Supreme Court observed as a caution that punitive damages serve the same

20   purposes as criminal penalties, but are imposed in civil proceedings in which the defendants do

21   not receive the protections afforded to criminal defendants. See State Farm Mut. Auto. Ins. Co.

22   v. Campbell, 

, 417 (2003). Juries that make such awards are unlikely to have


                                                      14
 1   sufficient information about an individual defendant’s personal finances to allow for a fair and

 2   sensitively tailored punishment. Excessive awards against individuals can inflict great harm not

 3   only on the wrongdoer, but also on the wrongdoer’s innocent dependents and, upon bankrupting

 4   a family, can inflict further charges on the public treasury. See Southerland v. City of New York,

 5   

, 137 (2d Cir. 2012) (Jacobs, C.J., dissenting from denial of rehearing in banc).

 6          Apart from impairing the fairness, predictability and proportionality of the legal system,

 7   judgments awarding unreasonable amounts as damages impose harmful, burdensome costs on

 8   society. As an initial matter, an excessive verdict that is allowed to stand establishes a precedent

 9   for excessive awards in later cases. The publicity that accompanies huge punitive damages

10   awards, see, e.g., Henry Weinstein, Philip Morris Ordered to Pay $28 Billion to Smoker, L.A.

11   Times, Oct. 5, 2002, will encourage future jurors to impose similarly large amounts. Unchecked

12   awards levied against significant industries can cause serious harm to the national economy.

13   Productive companies can be forced into bankruptcy or out of business. Municipalities can be

14   drained of essential public resources. The threat of excessive damages, furthermore, drives up

15   the cost of insurance premiums,4 deters both individuals and enterprises from undertaking

16   socially desirable activities and risks,5 and encourages overspending on “socially excessive


            4
               We recognize that punitive damages are not insurable in all states. See, e.g., 7 Couch on
     Ins. § 101:28 (3d ed. 2007) (collecting cases); 2 Barry R. Ostrager & Thomas R. Newman,
     Handbook on Ins. Coverage Disputes § 14.02(b) (16th ed. 2012) (reviewing public policy
     considerations). However, many states allow punitive coverage and “the legislative and judicial
     trend in the past several decades has been squarely in the direction of expanded insurability.”
     Catherine M. Sharkey, Revisiting the Noninsurable Costs of Accidents, 

. Rev. 409, 430
     (2005); see also Michael A. Rosenhouse, Liability Insurance Coverage as Extending to Liability
     for Punitive or Exemplary Damages, 

, § 5 (2011) (collecting cases).
            5
             One well-known example was the shortage of obstetricians because of high malpractice
     insurance premiums resulting from large jury damages awards. See, e.g., Marilyn Elias,

                                                     15
 1   precautions” that “cost[] more than the reduction of harm produced by [them].” A. Mitchell

 2   Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869,

 3   879 (1998). The prices of goods and services will rise, and innovation will be inhibited. See id.

 4   at 873.

 5             These burdens on society, furthermore, are not justified by the benefits to the plaintiffs.

 6   Because punitive damages are awarded over and above full compensatory damages to cover a

 7   plaintiff’s actual losses, punitive damages have been characterized as “a windfall to a fully

 8   compensated plaintiff.” City of Newport v. Fact Concerts, Inc., 

, 267 (1981). But

 9   see Ratner v. Sioux Natural Gas Corp., 

, 804 (5th Cir. 1983) (Wisdom, J.) (“To

10   further the objectives of punishment and deterrence, it is more important that a defendant pay for

11   his wrongdoing than that the plaintiff receive the payment.”); Catherine M. Sharkey, Punitive

12   Damages as Societal Damages, 113 Yale L.J. 347, 363-70 (2003) (deterrence goal of punitive

13   damages may be better served by large punitive damages awards, because victims fail to bring

14   suit innumerable reasons, leading to “underliability” for wrongdoers). Indeed, the logic of

15   giving a single plaintiff the money exacted to punish and deter misconduct affecting the

16   community is vulnerable to criticism. In terms of fairness among potential plaintiffs, excessively

17   large punitive damages awards could bankrupt defendants before other deserving plaintiffs have

18   had the opportunity to recover compensatory damages. See, e.g., James B. Sales & Kenneth B.

19   Cole, Jr., Punitive Damages: A Relic that Has Outlived Its Origins, 37 Vand. L. Rev. 1117,




     Obstetricians Dwindle Amid High Malpractice Costs, USA Today, May 6, 2002,
     http://www.usatoday.com/news/health/2002-05-06-obstetricians.htm; Jaime Holguin, High Cost
     of Malpractice Insurance, CBSNews.com, Dec. 5, 2007, http://www.cbsnews.com/2100-
     500262_162-610102.html.

                                                        16
1    1154-55 (1984). At a societal level, the community benefits from the deterrent effect of such

2    awards, but not from the actual money. If the tortfeasor had been assessed a fine instead, the

3    money would have gone to a public purpose. Cf. Ciraolo v. City of N.Y., 

, 247 (2d

 4   Cir. 2000) (Calabresi, J., concurring) (“[I]n order to achieve the goal of social compensation, as

 5   well as the goal of optimal deterrence, it would be preferable if such damages were paid into a

 6   fund that could then be applied to remedy some of the unredressed social harm stemming from

 7   the defendant’s conduct.”).6 The burden of punitive damages, furthermore, does not even

 8   necessarily fall on the wrongdoer, who may benefit from a program of indemnification. When,

 9   as here, the wrongdoer is a public servant and receives indemnification for a court’s award of

10   damages, it is the taxpaying public that bears the brunt of an excessive award, which compounds

11   the injury done by the tortfeasor.7


            6
               A confiscatory tax on punitive damages and related contingency fees, or the diversion
     of damages to the public fisc, would do much the same. Several states have enacted split-
     recovery statutes that allocate a percentage of punitive damages awards to the state treasury or a
     specified fund, presumably for this very purpose. See, e.g., Alaska Stat. Ann. § 09.17.020(j)
     (fifty percent of punitive damages award paid to general fund of the state); Ind. Code Ann. § 34-
     51-3-6(c) (seventy-five percent of punitive damages award paid to violent crime victims
     compensation fund). Other states give courts discretion to apportion awards between the
     plaintiff and the state. See, e.g., Dardinger v. Anthem Blue Cross & Blue Shield, 

, 145-46 (Ohio 2002) (conditioning $30 million punitive damages award on plaintiff’s
     acceptance of $10 million with the remainder, less attorneys’ fees, allocated to a cancer research
     fund established by the court). For criticisms of this approach, see Life Ins. Co. of Ga. v.
     Johnson, 

, 707-11 (Ala. 1996); Catherine M. Sharkey, Punitive Damages as
     Societal Damages, 113 Yale L.J. 347, 424-25 (2003).
            7
              Public servants are sometimes not indemnified by their employers for punitive damages.
      See Patterson v. Balsamico, 

, 122 (2d Cir. 2006); Vasbinder v. Scott, 

,
     122 n.1 (2d Cir. 1992) (“In this case . . . the State of New York has taken the position in its brief
     and oral argument on appeal that it may indemnify the defendants but is not required to do so,
     and has not made a commitment to provide indemnification.”); cf. O’Neill v. Krzeminski, 

, 13 (2d Cir. 1988) (city of New Haven accepted responsibility for payment of punitive
     damages awarded against a New Haven police officer pursuant to a municipal indemnification
     agreement).

                                                      17
 1             While judges have no greater ability than jurors to determine any correct amount of

 2   punitive damages (as there is no such thing as a correct amount), judges do have far greater

 3   familiarity with the experience of the legal system, which includes not only the large awards that

 4   have been the subject of well publicized appeals, but also small awards that are not appealed and

 5   therefore cannot easily be found in public sources. Judges have a better awareness than do juries

 6   whether a particular award is consistent with the norms that prevail in that system. And while

 7   judges do not necessarily have any greater expertise than jurors as economists, and cannot

 8   necessarily better assess the point at which punitive damages become excessive and cause harm

 9   to the economy, it would be catastrophically expensive and impractical to have the parties in

10   every tort trial call economists as expert witnesses to educate the jury on the consequences of

11   punitive damages to the overall economy. Responsibility to appraise these matters of necessity

12   falls on the courts even if they lack expertise in economics and feel ill equipped to make such

13   evaluations.

14             The courts, accordingly, bear the responsibility to ensure that judgments as to punitive

15   damages conform, insofar as reasonably practicable, to those desiderata and are not excessive.

16   An instrument available to courts to achieve that goal is the order of remittitur, which sets aside

17   an award, ordering a new trial, unless the plaintiff agrees to accept a lesser amount. See, e.g.,

18   Blunt v. Little, 

, 761-62 (C.C. Mass. 1822) (No. 1,578) (Story, J.) (“[I]f it should

19   clearly appear that the jury . . . have given damages excessive in relation to the person or the

20   injury, it is as much the duty of the court to interfere, to prevent the wrong, as in any other

21   case.”). “Judicial review of the size of punitive damages awards has been a safeguard against

22   excessive verdicts for as long as punitive damages have been awarded.” Honda Motor, 

   at 421.

                                                       18
 1      B. The Standards Governing Excessiveness and Appellate Review

 2          While the jury’s punitive damages award is at the heart of the appeal, technically the

 3   appeal is directed not against the jury’s decision but against the decision of the district court in

 4   denying the defendant’s motion to set aside or reduce the verdict. The standards governing the

 5   determination of excessiveness of jury verdicts and appellate review of trial court decisions on

 6   this question are the subject of potentially confusing precedents. Recent Supreme Court

 7   decisions have supported a shift toward greater judicial control of this issue.

 8          1. Standard for Excessiveness

 9          The customary formulation of the question faced by a federal court in reviewing a jury’s

10   verdict for excessiveness has long been whether the amount of the jury’s award is “so high as to

11   shock the judicial conscience and constitute a denial of justice.” Zarcone v. Perry, 

,

12   56 (2d Cir. 1978). Such terms as “shock the judicial conscience and constitute a denial of

13   justice” are, of course, vague approximations, which do not provide clear guidance as to how

14   excessive a jury award must be to shock the judicial conscience and constitute a denial of justice.

15   That question is informed, however, by consideration of the Supreme Court’s decision in BMW

16   of North America, Inc. v. Gore, 

 (1996), on a different but closely related question.

17   The issue in Gore was the excessiveness of a state court punitive damages award, which had

18   been largely upheld by the highest court of the state. The Supreme Court, recognizing that it had

19   no authority to overturn such a state court judgment unless it violated the Due Process Clause of

20   the Constitution, held that a state court judgment upholding a state jury’s punitive damages

21   award should be overturned only if the award is “grossly excessive.” Id. at 568. A federal trial

22   court reviewing a jury’s punitive award for excessiveness, and a federal appellate court

23   (including the Supreme Court), reviewing a federal district court’s ruling on that question, have

                                                       19
1    considerably more supervisory authority than the Supreme Court has over the decisions of the

2    highest courts of a state. See Perez v. Z Frank Oldsmobile, Inc., 

, 625 (7th Cir.

3    2000) (“Federal judges may, and should, insist that the award be sensible and justified by a

4    sound theory of deterrence. Random and freakish punitive awards have no place in federal court,

5    and intellectual discipline should be maintained.”). A federal appellate court is not required to

6    find that the jury’s award was so excessive as to violate due process, as the Supreme Court was

 7   compelled to find in Gore, in order to justify setting the award aside. See id. (“[C]onstitutional

 8   limits on punitive damages . . . come into play only after the assessment has been tested against

 9   statutory and common-law principles. . . . [W]hen a plaintiff seeks punitive damages in a federal

10   case, it is unnecessary to look for limits in the Constitution.”). It therefore follows that a degree

11   of excessiveness less extreme than “grossly excessive” will justify a finding that supports

12   imposing a remittitur.8 Whether the lower standard introduced by Gore abrogated the “shocks

13   the conscience” standard, or simply means that the judicial conscience is now, after Gore, more

14   easily shocked, is perhaps an academic question. The Gore decision seems to support an

15   increased judicial readiness to curtail any excessiveness.


            8
               Jones was found liable under both federal law (42 U.S.C. § 1983) and the New York
     State law of battery, and the jury awarded $300,000 in punitive damages to cover both claims
     without distinction. N.Y. C.P.L.R. § 5501(c) provides generally that damages awards are
     excessive or inadequate if they “deviate[] materially from what would be reasonable
     compensation.” While it is not clear from the language of the New York statute that it was
     intended to apply to punitive, as well as compensatory, damages, it is hard to imagine that the
     New York legislature expected its courts to exercise this supervisory responsibility only as to
     compensatory damages, and not as to punitive damages. We recognize that a federal court in a
     case governed by state law must apply the state law standard for appropriateness of remittitur.
     Gasperini v. Ctr. for Humanities, Inc., 

, 429-30 (1996). Despite differences in the
     verbal formulations as between the New York statute and federal case law, we need not make
     two distinct rulings because, whether examined under the federal standard or New York’s
     standard, we conclude the punitive damages award was excessive under either formulation to the
     extent it exceeded $100,000.

                                                      20
 1           2. Standard for Appellate Review

 2           It is conventionally stated that a federal court of appeals reviewing a district court’s

 3   decision concerning a jury’s punitive damages award reviews for abuse of discretion. Lee v.

 4   Edwards, 

, 808 (2d Cir. 1996). The Supreme Court approved that standard in

 5   Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 

, 279 (1989)

 6   (“In reviewing an award of punitive damages . . . [a] court of appeals should . . . review the

 7   district court’s determination under an abuse-of-discretion standard.”). At the same time,

 8   however, we explained in Dagnello v. Long Island Rail Road Co., 

 (2d Cir. 1961),

 9   that the discretion of the trial court on excessiveness is subject to substantial constraints. “If the

10   question of excessiveness is close or in balance, we must affirm. . . . We must give the benefit of

11   every doubt to the judgment of the trial judge; but surely there must be an upper limit, and

12   whether that has been surpassed is not a question of fact with respect to which reasonable men

13   may differ, but a question of law.” Id. at 806. This explanation of the limitations on the trial

14   judge’s discretion was cited with approval by both the majority of the Supreme Court and the

15   dissent in Grunenthal v. Long Island Railroad Co., 

, 159-60 (1968); id. at 164-65

16   (Stewart, J., dissenting).

17           The Supreme Court’s 2001 ruling in Cooper Industries, Inc. v. Leatherman Tool Group,

18   

 (2001) shed a new light on our question. In that case, the Court considered the

19   standard of review to be applied when a United States court of appeals reviews a federal district

20   court’s ruling as to whether an award of punitive damages was so excessive as to violate the

21   defendant’s rights under the Due Process Clause of the Constitution. The jury had found the

22   defendant liable on both federal and state law claims and found further that the defendant had


                                                       21
 1   “acted with malice, or showed a reckless and outrageous indifference to a highly unreasonable

 2   risk of harm” to the plaintiff. Cooper, 532 U.S. at 429. The jury awarded punitive damages in

 3   the amount of $4.5 million. Id. The defendant claimed the punitive award violated due process,

 4   invoking the standards of Gore. The district court rejected the defendant’s claim, and the

5    defendant appealed that ruling. On appeal, the court of appeals concluded that “the district court

 6   did not abuse its discretion in declining to reduce the amount of the punitive damages.” Id. at

 7   431. The Supreme Court granted certiorari on the question whether the court of appeals

 8   reviewed the district court’s ruling under the correct standard. Id.

 9          The Supreme Court ruled that the court of appeals erred in reviewing the district court’s

10   decision under an abuse of discretion standard, concluding “that the constitutional issue merits

11   de novo review.” Id. The Court reasoned that the determination whether a punitive award is

12   excessive is a question of law, not a finding of fact. On a question of law there is no reason for

13   an appellate court to defer to the trial court’s view. Referring to the three guideposts previously

14   identified in Gore as pertinent to the determination of excessiveness–degree of reprehensibility

15   of defendant’s conduct; relationship between the harm caused and the award; and the sanctions

16   imposed in other cases for comparable misconduct9–the Cooper Court observed that the

17   respective institutional competencies of trial courts and appellate courts do not support deference

18   to the trial court’s conclusions. While the Court conceded the possibility that, as to the first

19   guidepost–degree of reprehensibility–trial courts may in some cases have superior insight into

20   the facts of any individual case, as to the other two guideposts–the relationship between the harm

21   and the award amount and the penalties imposed by law for similar conduct–appellate courts are


            9
             See infra Part II.C for our discussion of the Gore guideposts.

                                                      22
1   no less well situated to conduct the types of broad legal comparisons required to apply these

2   factors.10 Institutional considerations that call for a deferential standard of review of fact-bound

3   determinations are absent in appellate review of the excessiveness of punitive damages awards.

4   And, because “the legal rules for [excessiveness] acquire content only through application,”

5   “[i]ndependent review is . . . necessary if appellate courts are to maintain control of, and to

6   clarify, the legal principles” involved in an excessiveness determination. Cooper, 532 U.S. at

7   436.11




             10
              In its observation that trial courts may be better suited than courts of appeals to assess
    the reprehensibility of a defendant’s conduct by virtue of an intimate knowledge of the facts, the
    Court may have conceded too much. On a motion to set aside or reduce a jury verdict for
    excessiveness, trial courts and appellate courts alike are required to view all evidence in the light
    most favorable to sustaining the jury’s verdict, and neither court is free to substitute its own fact
    findings or credibility determinations for those of the jury. The determination what the evidence
    showed when viewed in the light most favorable to sustaining the verdict is a question of law,
    not of fact. There is no reason why the district court’s assessment of the evidence in the light
    most favorable to the party seeking to uphold the verdict should receive deference in an appellate
    court, as this exercise involves no credibility determinations. Appellate courts are constantly
    called upon to assess the evidence, viewed in the light most favorable to sustaining the judgment,
    to determine whether the evidence was legally sufficient to sustain the verdict, see, e.g., Jackson
    v. Virginia, 

, 318-19 (1979) (in reviewing a criminal conviction for sufficiency of
    the evidence, the relevant inquiry for federal trial courts and courts of appeals is “whether, after
    viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
    could have found the essential elements of the crime beyond a reasonable doubt”), and do not
    defer in that inquiry to trial courts’ assessments.
             11
             In support of its reasoning, the Cooper Court cited its earlier decisions in United States
    v. Bajakajian, 

 (1998), in which it held that courts of appeals should review de novo
    the question whether a fine is constitutionally excessive, and Ornelas v. United States, 

 (1996), holding that district court determinations of reasonable suspicion and probable cause
    are subject to de novo review on appeal. Cooper, 532 U.S. at 435-46. The Court had ruled in
    those cases that, while a district court’s factual findings underpinning its legal conclusions
    should be disturbed by a court of appeals only if clearly erroneous, the legal conclusions
    themselves are subject to de novo review.

                                                     23
 1          This case differs from Cooper in that in Cooper, the defendant sought to set aside or

 2   reduce the jury’s punitive award on constitutional grounds, asserting a violation of due process,

 3   whereas in this case, the defendant has argued excessiveness without invoking the Constitution.

 4   It is not clear to us why the Cooper defendant presented the issue to the district court (which

 5   determined how the issue was presented also to the court of appeals and the Supreme Court) as a

 6   constitutional question. It appears it was because the Supreme Court had recently, in Gore,

 7   decided a punitive damages case with a constitutional ruling. But Gore was in a very different

 8   posture from Cooper: In Gore, the Supreme Court reviewed a judgment of the highest court of a

 9   state. The Supreme Court is not the highest authority on issues of state law and has no authority

10   to overturn a state judgment unless the judgment somehow contravenes federal law. Thus, in

11   Gore, the state court award of punitive damages was invulnerable to Supreme Court review

12   unless it violated the United States Constitution. Cooper, in contrast, was tried in federal court.

13   A federal district court may review a federal jury’s punitive award for excessiveness without

14   broaching whether the award violated due process, and courts of appeals and the Supreme Court

15   may similarly review a district court’s upholding of such an award on a finding of excessiveness,

16   without needing to rule that the award violated the Constitution.12 The defendant in Cooper



            12
               The only constitutional question generally arising in such cases was whether the jury’s
     award was immunized from review by the provision of the Seventh Amendment that “no fact
     tried by a jury[] shall be otherwise re-examined in any Court of the United States, than according
     to the rules of the common law.” U.S. CONST. amend. VII. The Cooper Court explained that,
     unlike the amount of compensatory damages, the determination of which “presents a question of
     historical or predictive fact,” the amount of punitive damages is “not really a fact tried by the
     jury.” 532 U.S. at 437 (citing Gasperini, 518 U.S. at 459). For this reason, appellate review of a
     district court’s determination as to the constitutionality of an award of punitive damages does not
     implicate the Seventh Amendment in the same way that review of a district court’s
     constitutionality determination of a compensatory award would. Cooper, 532 U.S. at 437.

                                                      24
 1   therefore had no need to argue that the punitive award was so excessive as to violate due process.

 2   It was sufficient to show that it was excessive.

 3             As noted, the Supreme Court ruled in Cooper that review is de novo when a punitive

 4   award is attacked as constitutionally excessive. Would the review have also been de novo if the

 5   Cooper defendant had not taken on the unnecessary burden of showing unconstitutional

 6   excessiveness, and had asserted mere excessiveness? The Supreme Court stated in dictum in

 7   Cooper that “[i]f no constitutional issue is raised, the role of the appellate court, at least in the

 8   federal system, is merely to review the trial court’s determination under an abuse-of-discretion

 9   standard.” 532 U.S. at 433 (internal quotation marks omitted). We therefore must conclude that

10   our review of the district court’s ruling is for abuse of discretion.

11             Nonetheless we note in passing that it is difficult to understand why the standard of

12   appellate review should change from abuse of discretion to de novo merely because a claim of

13   excessiveness is made by reference to due process instead of by reference to federal common

14   law. The reasoning given by the Cooper Court for de novo review by appellate courts of district

15   court decisions on the constitutionality of punitive awards–that the respective institutional

16   competencies of trial courts and appellate courts do not support deference to the trial court’s

17   conclusions, because appellate courts have at least equal and perhaps superior insight into the

18   Gore guideposts–is equally applicable to appellate courts reviewing district court decisions on

19   excessiveness under federal common law. If and when the Supreme Court comes to expressly

20   consider the standard of appellate review to be applied to district court decisions on

21   excessiveness under federal common law alone, perhaps it will shed new light on the standard of

22   review.


                                                        25
 1          In any event, until then, we must follow the Supreme Court’s Cooper dictum, and its

 2   holding in Browning-Ferris, and adhere to an abuse-of-discretion standard in reviewing the

 3   district court’s decision, and we do. But, as Judge Henry Friendly explored in his article

 4   Indiscretion About Discretion, the role of appellate courts in reviewing decisions traditionally

 5   regarded as under the trial court’s discretion varies depending on what type case is being

 6   reviewed: “Some cases call for application of the abuse of discretion standard in a ‘broad’ sense

 7   and others in a ‘narrow’ one,” depending on why that particular type of case is “committed to the

 8   trial court’s discretion in the first instance.” Henry J. Friendly, Indiscretion About Discretion, 31

 9   Emory L.J. 747, 764 (1982) (internal quotation marks and citation omitted). Gore, in which the

10   Court detailed the ways in which courts of appeals are no less institutionally competent to review

11   punitive awards for excessiveness than are trial courts, counsels that the degree of discretion

12   enjoyed by trial courts in these matters is relatively narrow.

13      C. Review of the Punitive Damages Award

14          The Supreme Court in Gore identified three “guideposts” which in that case indicated

15   that the defendant had not received “adequate notice of the magnitude of the sanction” the state

16   courts might impose for its offense: (1) degree of reprehensibility of the defendant’s conduct, (2)

17   relationship of the punitive damages to the compensatory damages, and (3) criminal and civil

18   penalties imposed by the state’s law for the misconduct in question. 517 U.S. at 574-75.13 We

19   review the facts in relation to those guideposts.


            13
               As noted above, the Gore decision was addressed to a different question—the
     constitutionality of the state court judgment. While a greater degree of excessiveness is required
     to violate the Constitution than to justify remittitur under the supervisory power of the federal
     appellate courts over federal trial courts, we have no reason to think the guideposts indicated by
     the Supreme Court for the constitutional inquiry are not also pertinent for this inquiry. See, e.g.,
     Lee, 101 F.3d at 809.

                                                         26
 1             1. Degree of reprehensibility

 2             The Gore decision described the degree of reprehensibility of the defendant’s misconduct

 3   as “[p]erhaps the most important indicium of the reasonableness of a punitive damages award.”

 4   Id. at 575; see also State Farm, 538 U.S. at 419. This guidepost is particularly important and

 5   useful because punitive damages are intended to punish, and the severity of punishment, as in the

 6   case of criminal punishments, should vary with the degree of reprehensibility of the conduct

 7   being punished. See State Farm, 538 U.S. at 417. Gore emphasized “the accepted view that

 8   some wrongs are more blameworthy than others.” 517 U.S. at 575.

 9          There is no doubt that Jones’s conduct was reprehensible. When called in to deal with

10   Payne’s assaultive and combative behavior, he gratuitously provoked Payne with a verbal taunt

11   and lost his temper, responding with violence when Payne reacted to the provocation by kicking

12   him. It is also an aggravating factor that Jones recognized that Payne might be mentally ill. It is

13   another aggravating factor that Jones had used excessive force once in the past, and that his

14   conduct is criminalized in New York as a class “A” misdemeanor. See N.Y. Penal Law §

15   120.00.

16          However, there were also mitigating factors to be counted in Jones’s favor in making the

17   degree-of-reprehensibility analysis. Jones’s violence was not unprovoked. Payne’s violent

18   threats in the hospital had caused the officers to be summoned to control him. Payne struggled

19   to resist the officers’ efforts to place him in handcuffs and on a gurney. Jones became violent

20   only after Payne kicked him in the groin. While it is true that Payne’s kick in Jones’s groin was

21   in response to Jones’s inappropriate verbal taunt, it was nonetheless a kick in the groin. While

22   Jones’s violence was reprehensible, it was provoked, and that diminishes the degree of


                                                      27
 1   reprehensibility. His attack on Payne, furthermore, lasted at most 30 seconds, did not involve

 2   use of a weapon, and did not cause any serious physical injuries.

 3          In short, we have no doubt that Jones’s conduct was reprehensible and justified the

 4   imposition of punitive damages. But there were significant mitigating factors, so that the degree

 5   of reprehensibility was not all that high. Payne’s provocations and the other mitigating factors

 6   mentioned above indicate that Jones’s degree of reprehensibility was not particularly elevated,

 7   and strongly suggest that the punitive damages of $300,000 are unreasonably high.

 8          2. Relationship between harm and punitive damages award

 9          The second “guidepost” that influenced the decision in Gore instructs us to look at

10   “whether there is a reasonable relationship between the punitive damages award and the harm

11   likely to result from the defendant’s conduct as well as the harm that actually has occurred.” 517

12   U.S. at 581 (internal quotation marks and citation omitted). Courts often consider the ratio of the

13   punitive damages award to the compensatory award, and consider whether that ratio is

14   reasonable in the circumstances of the case. While the Gore Court noted that the 500-to-1 ratio

15   in the case influenced its decision that the punitive award was unreasonable, the Court also

16   repeatedly stressed the impossibility of making any bright-line test, as the propriety of the ratio

17   can vary enormously with the particular facts of the case. See id. at 582-83; State Farm, 538

18   U.S. at 425. It is difficult or impossible to make useful generalizations.

19          When the compensable injury was small but the reprehensibility of the defendant’s

20   conduct was great, the ratio of a reasonable punitive award to the small compensatory award will

21   necessarily be very high. See, e.g., State Farm, 538 U.S. at 425 (“[R]atios greater than those we

22   have previously upheld may comport with due process where a particularly egregious act has


                                                      28
 1   resulted in only a small amount of economic damages.” (internal quotation marks omitted)); Lee,

 2   101 F.3d at 811 (“[I]n a § 1983 case in which the compensatory damages are nominal, a much

 3   higher ratio can be contemplated . . . . [T]he use of a multiplier to assess punitive damages is not

 4   the best tool . . . .”). If in such cases significant punitive awards are not available, because of the

 5   high ratio in relation to the compensatory award, a plaintiff will often be unable to sue as

 6   attorneys would be unable to collect a reasonable fee through a contingency arrangement.14

 7   Thus, in cases of very small injury but very reprehensible conduct, the appropriate ratios can be

 8   very high. In Lee, for instance, the plaintiff was awarded $1 in nominal damages and $200,000

 9   in punitive damages on his malicious prosecution claim under 42 U.S.C. § 1983 against a police

10   officer who attacked him and then falsely accused him of assault. See Lee, 101 F.3d at 807-08.

11   On appeal, we reduced the punitive damages to $75,000. See id. at 813. Even after the

12   remittitur, the ratio was huge at 75,000 to 1. But 75,000 to 1 was an appropriate ratio on those

13   facts. In such cases, the large size of the ratio has no necessary bearing on the appropriateness of

14   the amount of punitive damages.15

15          On the other hand, when the harm to the plaintiff is substantial, and sufficient to result in

16   a compensatory award large enough to finance a reasonable contingent attorneys’ fee, even a


            14
              Congress sought to alleviate this problem in, inter alia, § 1983 cases by providing that
     courts may award attorney’s fees to prevailing parties. See 42 U.S.C. § 1988(b); City of
     Riverside v. Rivera, 

, 576-78 (1986).
            15
               Juries will often award nominal compensatory damages together with a reasonable
     punitive award where the harm to the particular plaintiff is small but the defendant’s conduct is
     egregious. In practical terms, there is virtually no real difference between compensatory awards
     of one penny, one dollar, ten dollars, or one hundred dollars, coupled with a punitive award of
     $10,000. But depending on which nominal amount the jury selected, the ratio of the punitive to
     the compensatory award would vary between 100-to-1 and 1,000,000-to-1, and any of them
     would be equally reasonable.

                                                       29
 1   single digit ratio can mean a high punitive award approaching $1 million. Thus, the Supreme

 2   Court observed in State Farm, “When compensatory damages are substantial, then a lesser ratio,

 3   perhaps only equal to compensatory damages, can reach the outermost limit . . . .” 538 U.S. at

 4   425.

 5          Here, the ratio of the $300,000 punitive damages award to Jones’s $60,000 compensatory

 6   award is 5 to 1. The ratio, without regard to the amounts, tells us little of value in this case to

 7   help answer the question whether the punitive award was excessive. Had the facts of the harm to

 8   Payne been such that the jury appraised his compensable loss at only $10,000 based on the same

 9   conduct by Jones, and the jury had imposed a punitive award on Jones of $100,000, we would

10   not consider the punitive award excessive, even though the ratio of 10-to-1 would have been

11   twice as high as the 5-to-1 ratio that actually resulted. On the other hand, if exactly the same

12   conduct by Jones had caused Payne $300,000 of compensable harm by reason of a concealed

13   susceptibility of which Jones was not aware, and the jury had imposed the same $300,000 in

14   punitive damages, the punitive damages would appear to us to be very high (because of the

15   relevant low degree of reprehensibility of Jones’s conduct) although representing only a 1-to-1

16   ratio. The 5-to-1 ratio of punitive to compensatory damages, by itself, tells nothing about

17   whether the punitive award was excessive, but given the substantial amount of the compensatory

18   award, the punitive award five times greater appears high.

19          3. Penalties imposed by law for the conduct giving rise to punitive damages

20          Gore found “a third indicium of excessiveness” of the punitive award in the fact that the

21   maximum penalty authorized by Alabama’s state law for the acts that occasioned the punitive

22   damages award of $2 million was a civil penalty of $2,000. 517 U.S. at 583-84. The Court


                                                       30
 1   observed that “a reviewing court engaged in determining whether an award of punitive damages

 2   is excessive should accord substantial deference to legislative judgments concerning appropriate

 3   sanctions for the conduct at issue.” Id. at 583 (internal quotation marks omitted). Applying that

 4   guidepost to this case, it appears that Jones’s conduct could support his prosecution in New York

 5   for a class “A” misdemeanor of assault in the third degree.16 See N.Y. Penal Law § 120.00. An

 6   individual is guilty of assault in the third degree when, “[w]ith intent to cause physical injury to

 7   another person, he causes such injury to such person or to a third person.” Id. Assault in the

 8   third degree is punishable by a prison sentence up to a maximum of one year, see id. § 70.15(1),

 9   and by a fine not to exceed $1,000, see id. § 80.05(1). However, the law does not mandate either

10   a prison sentence or a fine.

11          The fact that New York classes Jones’s conduct as warranting criminal prosecution tends

12   to confirm the appropriateness of the imposition of a punitive award. However, it tells little

13   about the appropriateness of the amount of the award. At the same time, the fact that the offense

14   is classed by New York as only a misdemeanor, and that courts are at liberty under New York

15   law to impose no imprisonment or fine whatsoever on a violator (while New York law mandates

16   minimum sentences for numerous offenses), tend to suggest that New York regards this conduct

17   as occupying the lower echelons of criminality.




            16
               Jones’s conduct did not justify prosecution for the class “D” felony of assault in the
     second degree under N.Y. Penal Law § 120.05. One commits this crime when, “[w]ith intent to
     cause serious physical injury to another person, he causes such injury to such person or to a third
     person.” Id. (emphasis added). A “serious physical injury” is one that carries a substantial risk
     of death, or results in protracted disfigurement, impairment of health, or damage to an organ.
     See id. § 10.00(10). The evidence could not support a finding that Jones caused or intended to
     cause a serious physical injury to Payne.

                                                       31
 1          As the law allows New York courts complete discretion as to the sentence to be imposed,

 2   the punishment that New York courts would impose on one found guilty of this misdemeanor

 3   would, of course, depend on a variety of factors, including importantly the degree of

 4   reprehensibility of the defendant’s conduct. In cases where the degree of reprehensibility was

 5   most aggravated, a sentence of one year’s imprisonment could be imposed, as well as a fine of

 6   up to $1,000. Without doubt a sentence of a year in jail is a substantial punishment.17 But when

 7   the degree of reprehensibility was low, the court might impose neither jail time nor fine. While a

 8   New York court might well have imposed some modest jail time on Jones had he been

 9   prosecuted and convicted, on our appraisal of the facts, viewed in the light most favorable to

10   Payne, we think it unlikely that a court would have sentenced Jones to any very substantial part

11   of the permissible one year of jail time.

12          In Gore, the fact that Alabama law provided no criminal sanction whatsoever for the

13   subject conduct, and also a very modest civil penalty, gave considerable support to the Court’s

14   conclusion that the $2 million punitive award was unreasonable, at least for the reason that the

15   defendant “did not receive adequate notice of the magnitude of the sanction that Alabama might

16   impose.” 517 U.S. at 574. The fact that New York does classify Jones’s conduct as a class “A”


            17
               It is difficult to compare the possibility of jail time with a purely monetary punitive
     damages award, especially when the jail time is within the sentencing court’s discretion. For
     example, courts agree that a year in prison is “a serious sanction.” Lee, 101 F.3d at 811; see also
     Myers v. Cent. Fla. Invs., Inc., 

, 1222 (11th Cir. 2010) (a “serious criminal
     sanction”). But they have reached different conclusions about whether that potential year in
     prison puts a tortfeasor on notice that his misconduct may lead to a substantial punitive award.
     Compare Lee, 101 F.3d at 811 (finding that the third guidepost did not support a $200,000
     punitive award in view of a comparable criminal penalty providing for a maximum fine of
     $2,000 and the possibility of a year in prison) with Myers, 592 F.3d at 1222-23 (finding that the
     third guidepost supported a punitive award of $500,000 in view of a comparable criminal penalty
     providing for the possibility of a year in prison).

                                                     32
 1   misdemeanor is much less informative. Without doubt it gives Jones the kind of warning that

 2   was absent in Gore, and strongly supports the imposition of some punitive award, but it tells

 3   very little about whether the particular award was excessive.

 4          4. Comparison with punitive damages awards in similar cases

 5          Our conclusion drawn from our consideration of the three guideposts that the Supreme

 6   Court found helpful in Gore is that the first and most important—the degree of reprehensibility

 7   of the defendant’s conduct—strongly suggests that the punitive award of $300,000 was

 8   excessive, while the second and third tell us little that is useful about the size of the award.

 9          Courts have often found it helpful in deciding whether a particular punitive award is

10   excessive to compare it to court rulings on the same question in other cases. See Mathie v. Fries,

11   

, 817 (2d Cir. 1997) (reviewing a punitive award for excessiveness is a “task [that]

12   requires comparison with awards approved in similar cases”); Lee, 101 F.3d at 812 (in deciding

13   whether a punitive award is excessive, “it is appropriate for us to examine punitive damage

14   awards in similar cases”); Ismail v. Cohen, 

, 186 (2d Cir. 1990) (in determinating

15   whether a damages award exceeds the reasonable range, “[r]eference to other awards in similar

16   cases is proper”). The undertaking is precarious because the factual differences between cases

17   can make it difficult to draw useful comparisons. While appellate cases do not capture the entire

18   universe of police misconduct cases in which punitive damages were awarded, they can provide

19   useful reference points as to what amounts this court has found acceptable, and what amounts

20   this court has deemed excessive. In this undertaking, we have identified several cases in which

21   our court has reviewed the question of excessiveness of punitive damages imposed on individual

22   police officers.


                                                       33
 1            Our survey shows that we have never approved a punitive award against an individual

 2   police officer as large as the $300,000 award here. We have described awards ranging from

 3   $125,000 to $175,000 as “substantial,” King v. Macri, 

, 299 (2d Cir. 1993), and we

 4   have ordered remittitur of awards as low as $75,000, see id. (reducing the award to $50,000); see

 5   also DiSorbo v. Hoy, 

, 189 (2d Cir. 2003) (reducing a $1.275 million award to

6    $75,000); Lee, 101 F.3d at 813 (reducing a $200,000 award to $75,000); King, 993 F.2d at 299

7    (reducing a $175,000 award to $100,000). Moreover, in police misconduct cases in which we

 8   sustained awards around $150,000, see, e.g., Ismail, 899 F.2d at 187, the wrongs at issue were

 9   more egregious than the misconduct of Jones.

10            In O’Neill v. Krzeminski, two police officers attacked the handcuffed plaintiff in the

11   detention area of a police station, with one officer using a blackjack to deliver a blow to the

12   plaintiff’s head. See 

, 10 (2d Cir. 1988). The officers then dragged the plaintiff by his

13   throat across the detention area floor before they allowed him to be taken to the hospital, where

14   he was treated for a fractured nose and lacerations to his forehead and eyebrow. See id. We

15   affirmed punitive damages awards of $125,000 and $60,000 against the two officers. See id. at

16   13-14.

17            In Ismail, a police officer struck the plaintiff in the back of the head following an

18   argument over a parking citation written by the officer. See 899 F.2d at 185. The plaintiff

19   briefly lost consciousness. When he awoke, he found that the officer was pressing a gun against

20   his head and a knee into his back. Although doctors found that the plaintiff had suffered “two

21   displaced vertebrae, a cracked rib and serious head trauma” as a result of the officer’s action, the

22   plaintiff spent more than two days in jail and was later tried, and acquitted, on three criminal


                                                       34
 1   counts stemming from the parking citation dispute. Id. The district court had ruled that the

 2   jury’s award of $150,000 in punitive damages was excessive. We disagreed, reinstating the

 3   award. See id. at 189.

 4          Finally, in King, state court security officers punched the plaintiff repeatedly and used a

 5   choke-hold on him in the course of placing him under arrest. See 993 F.2d at 296. The plaintiff

 6   was strip-searched and sent to Rikers Island, where he was held for two months awaiting trial on

 7   criminal charges that included resisting arrest and disorderly conduct. All the criminal charges

 8   were either dropped prior to trial, dismissed by the state court, or resolved by a jury verdict of

 9   acquittal. See id. at 297. We reduced the jury’s punitive awards of $175,000 and $75,000

10   against two of the officers to $100,000 and $50,000, respectively. See id. at 299.

11          The case most helpful to our analysis is DiSorbo, which strongly supports the view that

12   the $300,000 punitive award in this case was excessive. It involved far more egregious

13   misconduct on the part of the defendant police officer, and we reduced the jury’s award of

14   punitive damages well below the $300,000 here at issue. The plaintiff was a woman who was

15   arrested by the defendant police officer without just cause in retaliation for having spurned his

16   advances at a bar. See DiSorbo, 343 F.3d at 176. At the police station, the defendant slammed

17   the plaintiff into the entry door and then pushed her against a wall, grabbing her throat and

18   choking her. See id. at 177. When she tried to defend herself by kicking the defendant, he

19   responded by throwing her to the ground and striking her repeatedly. See id. The attack left

20   bruises on the plaintiff’s head, shoulder, and hands, but did not cause any permanent scarring or

21   nerve damage. See id. at 179. The jury awarded punitive damages of $1.275 million. We

22   reduced the award to $75,000. See id. at 189. It would be impossible to reconcile the $300,000


                                                      35
1    punitive award against Jones for his less reprehensible conduct with the reduction of the DiSorbo

2    award to $75,000.

3           5. Totality of the factors

4           In considering the complex totality of factors that affect a decision on this question, we

5    conclude that the district court’s rejection of Jones’s motion to reduce the amount of punitive

6    damages must be overturned. We believe the award was impermissibly excessive. Our ruling

 7   should not be construed as making light of Jones’s misconduct. Without question Jones engaged

 8   in serious misconduct which justifies a punitive award. On the other hand, his misconduct in

 9   light of all the circumstances was not so egregious as to justify punitive damages of $300,000.

10   We conclude upon all the relevant factors discussed above that the highest level of punitive

11   damages that can properly be sustained is $100,000.

12                                            CONCLUSION

13          The judgment awarding punitive damages is hereby vacated, and a new trial is ordered

14   limited to the issue of the amount of punitive damages unless Payne agrees to a remittitur

15   reducing the amount of punitive damages to $100,000. In all other respects, the judgment is

16   affirmed.




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