proved that there was excessive force used against him by the defendant the excessive force proximately caused his injuries which were eleven lacerations to his head requiring stapling did the district court then to deny a motion for a new trial here when the only theory that was presented to this jury throughout this entire case that the injuries that were caused by miss  cases are not crystal clear as to what constitutes an inconsistent birds opposed to a compromise verdict or one where you are entitled to liability as a matter of law damages as a matter of law an inconsistent verdict is one in which the two questions themselves on the on  ms are inherently inconsistent so for instance two questions are the answers the answers to the answers to the questions i'm sorry so for instance if they would have found that there was proximate cause and no use of excessive force that would be an inconsistent verdict need need to address to the to the district court or if you had a case in which you had multiple tort claims presented and the elements were virtually identical and the claims were found to be one they prevailed on one they the what we're looking at here is a case is a situation that the court this court addressed in kerman versus the city of new york in two thousand and four where you look at a award where they find liability in the question then becomes as a result of that liability are you entitled to damages as a matter of law that's the first thing the second issue then is was it a compromise verdict that's the next that's the next issue and that the answers to what the big constants compromise verdict as opposed to one which are entitled to damages are not as a matter of law it's so the zero seems inconsistent well and had you moved for clarification or sought some kind of relief before the jury was discharged we wouldn't be sitting here today i'm not so sure that that's the case and under of the or not the question then becomes was it a compromise verdict so how do you determine that the hard part of these types of cases is how do you determine when something someone's entitled to something is a matter of law it's inconsistent or it's a compromise want and which they a jury finds liability in words no doubt doesn't more damages it's one in which the inherent in a liability questions themselves cannot necessarily be reconciled and that's been a traditional that's been the traditional analysis  of of the distinction between a compromise verdict and one in which it's inconsistent and certain not only the circuits rolled out of that way but virtually all the other circuits of rule the same way maybe you could move on to speak about what was wrong in your view with the district court's method that said it's not enough to show the jury's answers on a verdict sheet do not conform to the theories the parties advanced or that the court would have anticipated that as an incorrect proposition of law that is because what happens in these trials is that the parties chart their courses to what the claims are going to be we now going to allow any retrospective look at a case in which on a claim that was never argued by any of the part weave its own course and this was particularly opaque special verdict sheet judge did we could to reconcile the verdicts that were presented what's wrong with that because the claim about the injury to mr lee from being taken being dragged from the desk to the front of the cell was never argued or presented to this jury it's pure speculation on the  his boxers return he was a bodily removed but no see that's the way the facts get in the way of that argument the facts get in the argument because according to the police officers much happened before mr ali was placed into the cell story made absolutely no sense looking at all the conflicting testimony and what emerged at trial why couldn't the jury have found your used excessive force and moving from the front desk to the holding cell in theory they probably could have if that had been a claim in the case we never argued that it's not that and if you look judge that was never in any of the opening statements would have been consistent with the jury with the instructions given to the jury that that kind of movement would be excessive force and  would constitute it would not because it wouldn't be a survivable claim and that's part of the problem carrying him in even ripping his underwear under you know this judge friendly one said not all force its use necessarily rise to the level of a unreasonable probably not right and in light of mr ali's condition at the time and you don't have the benefit of seeing some of the some of the some of the photographs he was he was hot it was in a highly intoxicated condition it would have been and it would not have necessarily been  because the injuries would have necessarily been different one would have been a physical injury what happened inside the cell and what would have been a damage to his property when he was in terms of when he was being dragged that was not the case and that's why judge therapist didn't charge nominal that give them a nominal damage charge in the case he specifically said he looked at the evidence there's no way a jury could have found that it was normal damage based on the fact that he had eleven staples put in his head and six touches please the court my name is amanda nichols and i represent the police sergeant kip in this appeal your honors the verdict in this case while not unique but certainly unusual and while we cannot definitively say you know why the jury reached the result did the choice for this court is between the objective analysis done by the district court judge who sat and you know and oversaw the trial and all of the evidence that was submitted and speculation by the plaintiff appellant in this case as to why the jury reached the result that it did the seven it's the same district judge who declined to give a nominal damages instruction and was only after the fact that he constructed this theory about possibly what the evidence could support and judge  that in his decision he said and nationally i did not believe there was a view of the evidence that would permit nominal damages but after conducting a deeper analysis of the evidence that was before the jury he concluded that the testimony that mr ali was dragged to the cell by his neck in his pants causing his boxers to rip could have been considered excessive force in your honour's this was not a new theory the theory was that in his interaction with mr ali  what is the injury i mean the jury found that the plaintiff has proven by preponderance that he suffered an injury proximately caused by the use of excessive force what is the injury as judge karen fist noted the jury could have concluded that there was some pain that was associated with the dragging of him if he was dragged in such a way that his boxers were torn which we have any evidence presented to support that he suffered pain while slapping the plaintiff that was a form of excessive force but not one that resulted in a compensable injury it's not a new theory but rather a view of the interaction and just because there was no specific evidence as to the pain that was caused from that interaction doesn't mean the jury could not have inferred that from the evidence and when faced with this type of a verdict it is incumbent on the district court to see if there is an claim was based on the placing of mr rowley in the cell and the testimony that was provided by mr ali described his placement into the cell from the front of the of the desk as being aggressively down the hall and being thrown into the cell in an aggressive manner it was all part of placing in the celts a reasonable view they were also instructed that excessive force would be more force than reasonably necessary under the circumstance they certainly could have found that to be the case here so this was a reconcilable verdict this was a decision that the jury could have reached and the district court was correct in denying the post trial motion and going off in its own because they didn't like mr ali well our primary our primary claim our position on this appeal is that this was a reconcilable verdict it wasn't inconsistent to the extent that it can be justified by the evidence that was before the jury but liability that was inconsistent with an award of damages so for example the proxy battle borough there was a finding of of liability against doctors for negligent diagnosis and treatment and there was undisputed evidence of pain and suffering trial here of this bloody head injury and yet that the jury found both proximate cause and excessive force well your honor although i agree that the case law is somewhat unclear on the difference between inconsistent verdicts or compromise claims i would argue that just because a compromise can be an explanation for an inconsistency an inconsistent verdict would be one where the same facts underline one finding would have compel the other so the same facts that would require a finding of excessive force if the only facts the jury could have believed was that sergeant kip had caused the undisputed injury would have compelled an award of damages s that sense just as the same facts and one might argue in the book wild case would have required a finding of liability under both the federal and state claims those would be inconsistent part of the confusion comes in where there are some types of compromised verdict claims that are not predicated on inconsistency but perhaps some sort of inadequate damages award but where there is this underlying inconsistency it still is inconsistent verdict and all of the well for a compromise verdict in the still in atkins which we agree is the one of the prevailing cases on this in this part precise type of situation where there is some inconsistency in the verdict between the theory of liability and the finding of no damages not an inadequate damages award but in fact an order of no damages and a finding of excessive force that itself raises raises an issue and that where there is also a close question of liability so as an atkins on the issue of credibility similarly here the question was one of credibility that is another compromise that would at least raise the specter that this was a form of compromise in my hearing hearing event this court were to not find that then all of the in dishes suggesting that this was a compromised verdict are there and what require sending this back for a complete new trial as opposed to one on damages although again we contend that that's on necessary thank you thank you inconsistent with the theory of liability offered a trial together with other industries such as a close question or a theory the only theory to these parties litigated is what happened in that cell if you looked at the cross examination of lee by the attorney for the city it took him twenty pages before he even got to anything that happened in that precinct it was all a character assassination that's all they did was go after him that's all that was the bottom on in the other cases is another important in which the courts denied the motions another important fact there were multiple officers who were involved so where they could have found that one point one officer acted excessively and that's just and but that didn't cause any damage and gave him a dollar and the other officer didn't do anything at all none of those are present here thank you