United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-4399

___________________________

Calvin Fletcher, Sr.

lllllllllllllllllllll Plaintiff - Appellee

v.

Joseph Tomlinson

lllllllllllllllllllll Defendant

Nicholas Martorano; John Moton

lllllllllllllllllllll Defendants - Appellants

Jonathan Carroll; City of St. Louis; St. Louis City Metropolitan Police

Department; Board of Police Commissioners; Corizon, Inc.; Dr. Jane Doe; Jane

Doe, 1; Jane Doe, 2; Richard Gray, in his capacity as police commissioner;

Thomas Irwin, in his capacity as police commissioner; Erwin Switzer, in his

capacity as police commissioner; Bettye Battle-Turner, in her capacity as police

commissioner; Francis G. Slay, in his capacity as police commissioner; Paul

Geiger; April Scott; Rhalashondra Straughter; Joyce Sanchez; Blake Leadbetter;

Jane Doe, 3; Jane Doe, 4; John Doe, 1; John Doe, 2

lllllllllllllllllllll Defendants

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________
Submitted: December 12, 2017

 Filed: July 13, 2018

____________

Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.

____________

SMITH, Chief Judge. 

St. Louis Police Department (SLPD) Officers Nicholas Martorano and John

Moton appealfromthe district court’s judgment, entered upon a jury verdict, finding 1

that they used excessive force in their apprehension and arrest of Calvin Fletcher and

awarding damages to Fletcher totaling $600,000. They raise three issues on appeal:

(1) the district court erred in allowing Fletcher to read deposition testimony of a

medical expert who was not subject to cross-examination at trial; (2) the district court

erred in allowing the jury to award punitive damages against Officer Moton without

evidence that Officer Moton engaged in any excessive force against Fletcher; and (3)

the district court erred in failing to deduct from Fletcher’s judgment the amounts that

he received from his settlements with other defendants. We affirm. 

I. Background

“We view the facts relevant to the controlling issue of law in the light most

favorable to the jury’s verdict.” Hagen v. Siouxland Obstetrics & Gynecology, PC,

799 F.3d 922, 924 (8th Cir. 2015). 

One evening, Fletcher, a 5’8” African-American male who weighs 155 pounds,

was walking to a gas station in St. Louis, Missouri. Fletcher was unarmed and carried

no drugs or other contraband. Fletcher saw a marked patrol car leaving the gas

The Honorable Ronnie L. White, United States District Judge for the Eastern 1

District of Missouri.

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station’s parking lot. SLPD Officers Joseph Tomlinson, Martorano, and Moton were

in the patrol car. Fletcher continued walking. He saw the patrol car stop at a stoplight.

Fletcher was standing at the corner of the street where the patrol car stopped. 

Upon seeing Fletcher, the officers radioed at 8:21 p.m. that they were about to

perform a “pedestrian check” on Fletcher. According to the officers, they initiated

contact with Fletcher based on his behavior in a vacant lot at the corner of the street.

Officer Tomlinson claimed that Fletcher “seemed to be adjusting something in his

waistband,” which is “[g]enerally . . . a sign of someone carrying a weapon or

something on them.” Jury Trial Proceedings Transcript, Vol. II, at 166–67, Fletcher

v. Tomlinson, No. 4:14-cv-00999-RLW (E.D. Mo. Aug. 9, 2016), ECF No. 221.

Officer Tomlinson also testified that Fletcher was “visibly startled” by the patrol car.

Id. at 167. Fletcher walked quickly away from the police, and Officer Tomlinson

testified that Fletcher then discarded some type of package from his pockets. Officer

Tomlinson described the package as “a chunk of off-white rock-like substance

wrapped in plastic, tied at the end. The plastic was knotted.” Id. at 154. Fletcher,

however, testified that he was not in a vacant lot that evening and never threw

anything out of his pockets after he noticed the patrol car. In any event, the officers

stopped their patrol car, and Officer Tomlinson got out to retrieve whatever Fletcher

had allegedly discarded.

Thereafter, the officerssought to detain Fletcher. All the officersleft the patrol

car and rapidly approached Fletcher. From the patrol car to where Fletcher stood was

a few feet. The officers were armed and wearing armored vests. Each was over six

feet tall and weighed at least 200 pounds. Startled, Fletcher began backpedaling. He

tried to maintain eye contact with the officers, but he glanced back once or twice to

see where he was going and to see if something behind him was drawing the officers’

attention. Officer Martorano fell as he neared Fletcher, cutting his hand. Officer

Moton reached Fletcher first, and Officer Martorano jumped to his feet and ran to

Fletcher, too. Fletcher testified that as he was backing up, one of the officers (not

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Officer Martorano) caught up with him, and Fletcher fell on his bottom. After

Fletcher fell, the officer came up behind Fletcher and put his hands behind Fletcher’s

back. 

While Fletcher sat on the ground, Officer Martorano, appearing angry, rushed

toward Fletcher with his hands up and carrying something in his hand. According to

Fletcher, Officer Martorano “smacked [Fletcher] across [his] face” with something

that “felt like a brick.” Id. at 20–21. Fletcher identified “Officers Tomlinson,

Martorano[,] and Moton” asthe officers who then “started kicking and punching and

hitting [him] all over [his] body” as he sat there. Id. at 21. Fletcher did not resist the

officers. According to Fletcher, “it felt like [the officers were hitting him with]

something hard, like a pole or something.” Id. at 24. He described it as “some kind

of rod.” Id. He felt this object “[o]n [his] lower back, [his] legs.” Id. According to the

police report, Officer Moton was the officer who hit Fletcher with a baton. Officers

Moton and Martorano then handcuffed Fletcher and placed him in the backseat of the

patrol car. 

While in the patrol car, Fletcher saw some bags, a jacket, and a cell phone. He

began “screaming and yelling and saying that . . . thisstuff is not mine. ‘What’s going

on? What’s going on?’” Id. at 25. Fletcher feared that the officers were “trying to set

[him] up.” Id. at 26. Fletcher yelled but did nothing to damage the patrol car. Fletcher

testified that he yelled briefly. Then, the officers got him out of the patrol car, cursed

at him, told him to shut up, and started beating him again. To Fletcher, the beating

seemed like it lasted a long time. Fletcher remained handcuffed throughout the

encounter. He testified he did not fight back in any way. Fletcher believed there were

more than three officers involved in the beating because he “saw . . . a lady [who] had

her foot on [his] neck.” Id. at 27. Toward the end of the beating, Fletcher recalled

trying to look back. One of the officers got a jacket and put it over Fletcher’s head to

block his sight. Then, Fletcher felt an electric shock. Fletcher recalled the officers

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hitting him while the female’s foot was on his neck. Fletcher believed that he

probably lost consciousness because he “can’t remember a whole lot.” Id. at 31.

Not surprisingly, the officers described events from that evening differently

than the way Fletcher described them. Once placed in the patrol car, Fletcher,

according to the officers, remained combative, thrashing and kicking in the patrol car.

This prompted the officers to request a paddy wagon at 8:26 p.m. Officer Jonathan 2

Carroll arrived driving the paddy wagon at 8:29 p.m. According to the officers, they 3

put Fletcher in the paddy wagon soon after it arrived and his “same combative

behavior continued.” Jury Trial Proceedings Transcript, Vol. III, at 18. Fletcher

categorically denied behaving that way.4

Testimony defined a paddy wagon as “a full-size van with a prisoner cage in 2

the back. It has two seats, a driver’s seat and a passenger seat.” Jury Trial Proceedings

Transcript, Vol. I, at 121, Fletcher v. Tomlinson, No. 4:14-cv-00999-RLW (E.D. Mo.

Aug. 8, 2016), ECF No. 220. It is used “for transporting arrestees in the City of St.

Louis.” Id. 

Sergeant Christopher Simeone was dispatched to the scene at 8:49 p.m. He 3

recalled arriving at the scene prior to the paddy wagon’s arrival, but the paddy wagon

arrived at 8:29 p.m—20 minutes prior to Sergeant Simeone’s dispatched time.

Sergeant Simeone claimed he observed Fletcher in the patrol car yelling and causing

the car to shake back and forth. Sergeant Simeone testified he opened the door to

speak with Fletcher, and Fletcher was “moving about aggressively in the back seat,

kind of thrashing about, yelling incoherently.” JuryTrial Proceedings Transcript, Vol.

III, at 109, Fletcher v. Tomlinson, No. 4:14-cv-00999-RLW (E.D. Mo. Aug. 10,

2016), ECF No. 222. Sergeant Simeone testified to seeing Fletcher out of the patrol

car when “he was conveyed either to the pa[dd]y wagon or the EMS van.” Id. at 121. 

While the paddywagon is equipped with cameras, Officer Carroll turned them 4

off when he arrived on the scene. However, the dashboard camera did capture footage

upon his arrival to the scene. The dashboard footage shows the officers talking asthe

paddywagon arrives. The patrol car’s doors are open, and its emergency lights are not

on. Fletcher is not seen. 

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Fletcher does not recall how he got to the paddy wagon. Officer Carroll

testified that Fletcher “had to be dragged a little” to the paddy wagon. Jury Trial

Proceedings Transcript, Vol. I, at 138. According to Officer Carroll, Fletcher’s body

was “[p]robably” limp. Id. Officer Carroll confirmed that “the officers laid Mr.

Fletcher on his side in the pa[dd]y wagon and just sort of pushed him in [it].” Id. at

139. Fletcher recalled lying in the paddy wagon and hearing someone talking to him;

however, Fletcher was unable to open his eyes. Fletcher then felt another electric

shock, which woke him up. He looked up and saw a big light in his face. He closed 5

his eyes again but could still hear talking. Fletcher then looked up and saw a light

shining in his face again. He then heard an officer say, “Watch your head.” Jury Trial

Proceedings Transcript, Vol. II, at 34. Then, according to Fletcher, the door was

slammed on his head.

By contrast, the officers reported that as they “were attempting to load

[Fletcher] into the back of the [paddy wagon], he became combative once again and

kicked [Officer Martorano] in the right knee.” JuryTrial Proceedings Transcript, Vol.

III, at 15. The officers then “subdued [Fletcher] and loaded [him] into the cruiser.”

Id.

Fletcher was in the paddy wagon when EMTs arrived at 8:58 p.m. The EMTs

asked Fletcher if he wanted medical treatment, and Fletcher did not respond. Fletcher

does not remember any EMTs speaking with him. The EMT who assessed Fletcher

The officers acknowledge that Officer Moton’s taser was used twice on 5

Fletcher that evening, but they claim that Officer Martorano fired it and that Officer

Moton handed it to Officer Martorano to use. According to the police report, the two

taser firings occurred during the first altercation, just before Fletcher was handcuffed.

The record showed that three taser firings during Officer Moton’s shift. The first was

soon after the shift began, at 6:40 p.m. Officer Moton’s sergeant confirmed thisfiring

as an expected test-firing time. The other firings were at 8:52 p.m. and 8:56 p.m. The

pedestrian-check call on Fletcher occurred at 8:21 p.m. The time span between the

pedestrian-check and the second firing is approximately 30 minutes. 

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testified that “the police signed the refusal [of transport]” to take Fletcher to the

hospital. Id. at 83. The EMT identified Officer Tomlinson as “the witness to the

refusal.” Id. at 85. The EMTs left at 9:12 p.m. 

Officer Carroll then drove Fletcher to the city jail. On arrival, Officer Carroll

testified that officers had to hold Fletcher up to enable him to walk inside the jail.

According to Officer Carroll, “If they would have let him go, he probably would have

just dropped to the ground.” JuryTrial Proceedings Transcript, Vol. I, at 140. Fletcher

was not under the influence of drugs or alcohol upon his arrival to the jail. Fletcher

remained in handcuffs from his initial arrest until they were removed at the jail. 

Due to his injuries, Fletcher was in the jail’s infirmary for six days. He had a

swollen face, pain, abrasions, and bruising all over his body, including his lower back

and head. While at the jail, the only medical test conducted was a chest x-ray.

Fletcher was then taken to Perry County, Missouri, on a traffic warrant. Fletcher

remained in Perry County jail for about a week. Perry County then transported

Fletcher to Perry County Memorial Hospital because his condition worsened.

Ultimately, Fletcher was taken to St. Louis University (SLU) Hospital. While there,

skull x-rays were taken and his creatine levels were checked. A radiology report

revealed he had a broken nose, broken eye socket, other facial fractures, and internal

brain bleeding. The creatine levels revealed that Fletcher’s kidneys were damaged

and that he was nearing renal failure. He stayed in SLU Hospital’s I.C.U. for two

weeks. 

Fletcher was charged with drug possession, resisting arrest, and assault on an

officer. The rock-like substance that Fletcher allegedly discarded was tested and

proved not to be drugs. The prosecuting attorney’s office dropped all charges against

Fletcher. 

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Fletcher filed a civil rights action against Officers Carroll, Martorano, Moton,

and Tomlinson, the SLPD Board and its members, the City of St. Louis, the

contractor operating the jail infirmary (“Corizon”), some ofCorizon’s employees, the

Perry County Sheriff’s Department, and the Perry County Memorial Hospital.

Fletcher alleged federal and state-law claims of excessive force against each of the

four defendant police officers. Fletcher also alleged a claim of conspiracy to violate

his Fourth Amendment rights. 

On September 29, 2015, defendant Corizon disclosed pursuant to Federal Rule

of Civil Procedure 26(a)(2) its retained medical expert Dr. Arnold Berns. Dr. Berns’s

cover letter revealed that he is board-certified in medicine and nephrology and is

familiar with and experienced in all branches and aspects of clinical nephrology,

including acute kidney injury, chronic kidney disease, end-stage renal disease, and

dialysis. Dr. Berns resides and practicesin Chicago, Illinois. Dr. Berns also included

his educational, training, and professional experience. Dr. Berns opined that “[t]he

proximate cause of Mr. Fletcher’s acute kidney injury with associated metabolic

complications was traumatic rhabdomyolysis. The rhabdomyolysis occurred at the

6

time of his arrest on March 6 and was due to direct muscle trauma.” Plaintiff’s

Response to Defendant’s Objection to the Admission of Any Testimony from the

Deposition of Dr. Arnold Berns at 13, Fletcher v. Tomlinson, No.

4:14-cv-00999-RLW (E.D. Mo. Aug. 7, 2016), ECF No. 179. 

Fletcher’s counsel paid for and took the deposition of Dr. Berns on January 13,

2016. Counsel for the officers cross-examined Dr. Berns during that deposition. 

“[R]habdomyolysis [is] a condition that may occur when muscle tissue breaks

6

down and releases substances into the bloodstream that overwhelm the kidneys.

Rhabdomyolysis reportedly can be caused by many factors, including but not limited

to drug use or trauma by electrical charge or physical force.” Lash v. Hollis, 525 F.3d

636, 638 (8th Cir. 2008). 

-8-
Pursuant to the district court’s order, Fletcher served his deposition

designations, including the deposition designation for Dr. Berns, on the defendants

on July 19, 2016. Twenty days before trial, per the pretrial order, Fletcher filed notice

that he “may read the following deposition portions into evidence during his

case-in-chief . . . [f]rom the deposition of Dr. Berns.” Plaintiff’s Designations of

Discovery and Depositions at 1, 4, Fletcher v. Tomlinson, No. 4:14-cv-00999-RLW

(E.D. Mo. July 19, 2016), ECF No. 165. Fletcher also filed a witness list, stating that

he “may call . . . Arnold Berns, M.D.” Plaintiff’s Witness List at 1, Fletcher v.

Tomlinson, No. 4:14-cv-00999-RLW (E.D. Mo. July 19, 2016), ECF No. 164. The

district court’s case management order required the defendants to make any

objections to the deposition designations at least ten days before trial. The defendants

filed no objections to designated parts of Dr. Berns’s deposition and filed no

cross-designation of the deposition parts. 

On August 4, 2016, the defendants learned that Fletcher intended to ask the

court for leave to read from the deposition of Dr. Berns, an expert witness previously

identified not by Fletcher, but by defendant Corizon, who was no longer a party to the

case. On August 5, 2016, the defendants objected to the admission of any out-of-court

testimony from Dr. Berns, making six arguments. Defendants argued that (1) Dr.

Berns cannot qualify as an expert under the analysis required under Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); (2) unless Dr. Berns

appears live at trial, the defendants will be deprived of the opportunity to show that

Dr. Berns’s opinions are inadmissible under Daubert; (3) Fletcher did not identify Dr.

Berns as an expert witness in his initial disclosures or in response to the discovery

requests that the defendants submitted to Fletcher; (4) the defendants learned four

days prior to trial that Fletcher had no intention of calling Dr. Berns to testify live at

trial but instead intended to read portions of Dr. Berns’s deposition transcript, which

is inadmissible hearsay under Federal Rule of Evidence 803; (5) such deposition

transcript testimony is not admissible under Federal Rule of Evidence 804 because

Dr. Berns meets none of the criteria required to qualify as an “unavailable” witness;

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and (6) the defendants would be severely prejudiced by admission of the deposition

transcript testimony because they have not had a chance to depose Dr. Berns as an

expert for Fletcher.

Themorning oftrial, defense counsel discussed its objection to the introduction

of Dr. Berns’s deposition testimony with the court. The court asked whether defense

counsel was present during Dr. Berns’s deposition and whether counsel had the

opportunity to cross-examine Dr. Berns. Defense counsel answered yes. The court

stated, “I’m going to allow Defendants to use the depo designations that were made

to cross-examin[e] anything that Dr. Berns testifies in this trial.” Jury Trial

Proceedings Transcript, Vol. I, at 15.

Fletcher’s counsel then clarified that Fletcher would be relying on Dr. Berns’s

deposition testimony despite listing him as a “may call” witness. Based on a letter

fromDr. Berns, Fletcher’s counsel argued that Dr. Berns was “unavailable” under the

federalrules. If unavailable, Dr. Berns’s deposition would be admissible. In response,

defense counsel stated that Dr. Berns had been on the “may call” list and that the

defendants did not learn of Dr. Berns’s alleged unavailability until four days prior to

trial. The district court allowed Fletcher’s counsel to present portions of Dr. Berns’s

deposition but required him to inform defense counsel which parts would be used.

The court believed Dr. Berns qualified as an unavailable witness because he was

more than 100 miles away and his absence had not been strategically arranged. The

case proceeded to trial.

At the close of evidence, the district court granted the defendants a directed

verdict on the conspiracy claim. Fletcher then voluntarily dismissed all of his statelaw claims, leaving only his federal § 1983 claims. Over the defendants’ objection,

the district court submitted an instruction to the jury permitting it to return a verdict

for punitive damages against Officer Moton. 

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The jury found in favor of Officers Tomlinson and Carroll and against Officers

Martorano and Moton. On each of the claims against Officers Martorano and Moton,

the jury awarded compensatory damages of $100,000 and punitive damages of

$200,000. 

Officers Martorano and Moton filed various post-trial motions, including a

motion for new trial based upon the alleged erroneous admission of Dr. Berns’s

deposition testimony; a motion for judgment as a matter of law based upon the

alleged lack of evidence against Officer Moton; and a motion to amend the judgment

based upon the alleged failure to deduct the amounts that Fletcher received from his

settlements with Corizon and Perry County.

Relevant to this appeal, the court found no basis for granting a new trial,

concluding that Dr. Berns was disclosed as a witness by Corizon and was

cross-examined thoroughly by defense counsel. The district court found that Dr.

Berns was unavailable under Federal Rule of Civil Procedure 32(a) pursuant to the

letter from Dr. Berns’s Chicago office stating that he would be practicing medicine

in Chicago. In addition, the court noted that Fletcher putting Berns on the “may call”

list did not preclude Fletcher from using his deposition, which was clearly identified

in Fletcher’s deposition designations. The court also held that the defendants could

not argue post-trial that Dr. Berns was unqualified to provide expert testimony when

they never filed a Daubertmotion challenging his qualifications. The court found that

the defendants had waived the issue.

The court also addressed Officers Moton and Martorano’s motions to alter or

amend the judgment based on their objection at trial to the submission of Fletcher’s

claims for punitive damages and to the jury instructions on punitive damages. The

court held that the defendants failed to show a sufficient basis for altering or

amending the judgment because the jury clearly believed Fletcher’s version of events

with respect to Officers Moton and Martorano. That verdict reflected a finding of

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malice, recklessness, or callous indifference to Fletcher’s right to be free from

excessive force. The court found sufficient evidence of malice, recklessness, or

callous indifference to support the verdict based upon Fletcher’s extensive injuries

and the testimony that he was beaten even after he complied with the officers’

requests and after he was handcuffed. The court noted the jury’s reliance upon expert

witness testimony that Fletcher’s injuries were caused by the actions of Officers

Moton and Martorano. As a result, the jury had a reasonable basis for awarding

punitive damages to Fletcher. 

The court awarded Fletcher $21,898.03 in expenses and awarded Fletcher 55

percent of his requested attorneys’ fees ($164,071.88). 

II. Discussion

On appeal, Officers Martorano and Moton argue: (1) the district court erred in

allowing Fletcher to read Dr. Berns’s deposition testimony at trial; (2) the district

court erred in allowing the jury to award punitive damages against Officer Moton

without evidence that Officer Moton engaged in any excessive force against Fletcher;

and (3) the district court erred in failing to deduct from Fletcher’s judgment the

amounts that he received from his settlements with other defendants.

A. Expert Testimony

“We review the denial of a motion for a new trial for a clear abuse of

discretion, with the key question being whether a new trial is necessary to prevent a

miscarriage of justice.” Manning v. Jones, 875 F.3d 408, 410 (8th Cir. 2017) (citation

omitted), cert. denied, 138 S. Ct. 1707 (2018). “The decision to admit deposition

testimony will not be reversed absent a clear showing the trial court abused its

discretion.” Nationwide Mut. Fire Ins. Co. v. Dunkin, 850 F.2d 441, 443 (8th Cir.

1988) (per curiam) (citation omitted). 

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Officers Martorano and Moton make four arguments in support of their

contention that the district court abused its discretion in allowing Fletcher to read Dr.

Berns’s deposition testimony at trial: (1) Dr. Berns’s deposition testimony was

inadmissible because they were never allowed to cross-examine Dr. Berns at trial or

as an expert witness for Fletcher; (2) Dr. Berns’s out-of-court testimony was

inadmissible because Fletcher failed to show that Dr. Berns was “unavailable” under

Federal Rule of Evidence 804(a)(5); (3) Fletcher did not show that Dr. Berns was

qualified to render his opinions based solely upon a review of some unidentified

medical records; and (4) Fletcher deprived the officers of a fair trial and prejudiced

them by not producing Dr. Berns for cross-examination and impeachment at trial. We

consider each argument in turn. 

1. Cross-examination

Officers Martorano and Moton argue that Dr. Berns’s deposition was

inadmissible because they never had the opportunity to cross-examine Dr. Berns at

trial or as an expert witness for Fletcher. In support of this argument, they assert that

(1) Fletcher never identified Dr. Berns during discovery, (2) Fletcher did not identify

Dr. Berns after discovery closed, and (3) they were denied their right to crossexamine Dr. Berns either at trial or as an expert for Fletcher. 

The officers’ argument flies in the face of unyielding facts. The record shows

that on September 29, 2015, defendant Corizon notified all partiesthat Dr. Berns was

its retained expert witness. The officers do not dispute that in January 2016,

Fletcher’s counsel served on defendants’ counsel a “Supplemental Disclosure of

Experts” in which Fletcher stated that he might rely on Dr. Berns’s testimony. On

January 13, 2016, Fletcher’s counsel—not Corizon—paid for and took the deposition

of Dr. Berns. Counsel for the officers extensively cross-examined Dr. Berns during

that deposition. 

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The district court set trial for August 8, 2016. The district court ordered the

partiesto designate any deposition testimony that they intended to read into evidence

20 days prior to trial and to file any objection to such testimony ten days prior to trial.

In accordance with the district court’s pretrial order, on July 19, 2016, Fletcher filed

his deposition designations. Specifically, Fletcher provided that he “may read the

following deposition portions into evidence during his case-in-chief” and included

“the deposition of Dr. Berns” with the designated portions of that deposition.

Plaintiff’s Designations of Discovery and Depositions at 1, 4. The officers did not

7

object ten days before trial in accordance with the pretrial order; instead, they waited

until August 5, 2016, the last business day before trial, to file any objection. The

officers argued that they were notified the day prior that Fletcher intended to read

from Dr. Berns’s deposition instead of producing Dr. Berns as a live witness at trial.

The court overruled this objection. After the district court permitted Fletcher to

introduce parts of Dr. Berns’s deposition into the record, the officers’ counsel read

the prior cross-examination of Dr. Berns to the jury at trial.

Based on the record, we conclude that the officers were not deprived of an

opportunity to cross-examine Dr. Berns for trial purposes for three reasons. First, the

officers had the opportunity to cross-examine Dr. Berns during his deposition on

January 13, 2016, and extensively did so. Second, Fletcher notified the officers in

accordance with the pretrial order that he “may read” designated portions of Dr.

Berns’s deposition at trial. The officers had ten days following Fletcher’s designation

to object; they chose not to object. Third, the court permitted the officers’ counsel to

Fletcher separately filed a witness list. Fletcher indicated that he “may call” 7

Dr. Berns. Plaintiff’s Witness List at 1. This designation can be contrasted with two

other witnesses that Fletcher indicated that he “intend[ed] to call” at trial. Id.

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read the prior cross-examination of Dr. Berns to the jury at trial. Their argument that 8

they were deprived of their right to cross-examine Dr. Berns at trial fails. 

2. Unavailable

The officers next argue that Dr. Berns’s out-of-court testimony was

inadmissible because Fletcher did not show—and the district court failed to

find—that Dr. Berns was “unavailable” under Rule 804(a)(5). Specifically, the

officers contend that Fletcher failed to show that he could not procure Dr. Berns’s

attendance by “other reasonable means.” Fed. R. Evid. 804(a)(5). 

We begin with Federal Rule of Civil Procedure 32(a)(4)(B), which provides

that

[a] party may use for any purpose the deposition of a witness, whether

or not a party, if the court finds . . . that the witness is more than 100

miles from the place of hearing or trial or is outside the United States,

unless it appears that the witness’s absence was procured by the party

offering the deposition. 

We hold that Rule 32(a)(4)(B) gave the district court discretion to admit Dr.

Berns’s deposition testimony because he was more than 100 miles away from the

trial, and Fletcher did not procure his absence. Decisions from around the country

have concluded that Rule 32(a)(4)(B) operates as an independent exception to the

hearsay rule. We agree. 9

Because we conclude that the officers were not deprived of their opportunity

8

to cross-examine Dr. Berns for trial purposes, we need not address whether they were

deprived of a fair trial or prejudiced by Dr. Berns’s absence from the trial. 

“Our sister circuits have recognized that Rule 32(a) is an independent

9

exception to the hearsay rule.” Nationwide Life Ins. Co. v. Richards, 541 F.3d 903,

914 (9th Cir. 2008) (citing Ueland v. United States, 291 F.3d 993, 996 (7th Cir. 2002)

(“Rule 32(a), as a freestanding exception to the hearsay rule, is one of the ‘other

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As a result, a deponent whose “testimony properly was admitted under Rule

32(a)(4)(B) . . . need not also meet the requirements for admissibility set forth in

[Federal Rule of Evidence] 804(b)(1). Richards, 541 F.3d at 914. Federal Rule of 10

rules’ to which Fed. R. Evid. 802 refers. Evidence authorized by Rule 32(a) cannot

be excluded as hearsay, unless it would be inadmissible even if delivered in court.”);

Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 962–63 (10th Cir. 1993)

(“Deposition testimony is normally inadmissible hearsay, but Fed. R. Civ. P. 32(a)

creates an exception to the hearsay rules.”); S. Ind. Broad., Ltd. v. FCC, 935 F.2d

1340, 1341–42 (D.C. Cir. 1991) (acknowledging thatRule 32(a) creates an exception

to the hearsay rule); United States v. Vespe, 868 F.2d 1328, 1339 (3d Cir. 1989)

(stating that Rule 32(a)(4)(B) “constitutes an independent exception to the hearsay

rule”); Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 n.2 (1st Cir. 1988) (stating

that Rule 32(a)(4)(B) “is more permissive than FederalRule of Evidence 804(a)(5)”)). 

Federal Rule of Evidence 804(b) sets forth the exceptions that “are not

10

excluded by the rule against hearsay if the declarant is unavailable as a witness.”

Specifically, subsection 804(b)(1) provides that former testimony is an exception to

the hearsay rule if that testimony

(A) was given as a witness at a trial, hearing, or lawful deposition,

whether given during the current proceeding or a different one; and 

(B) is now offered against a party who had—or, in a civil case, whose

predecessor in interest had—an opportunity and similar motive to

develop it by direct, cross-, or redirect examination. 

Federal Rule of Evidence 804(a) sets forth the criteria for being unavailable. The

officers rely on subsection 804(a)(5), which provides that 

[a] declarant is considered to be unavailable as a witness if the declarant

. . . is absent from the trial or hearing and the statement’s proponent has

not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under

Rule 804(b)(1) or (6); or 

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Evidence 802 provides that “hearsay is admissible where allowed by the Federal

Rules of Evidence, or ‘by other rules prescribed by the Supreme Court pursuant to

statutory authority or by Act of Congress.’” Id. (quoting Fed. R. Evid. 802). “Rule

32(a)(4)(B) is one of these ‘other rules.’” Id. (quoting Fed. R. Evid. 802 advisory

committee’s notes)). “Rule 804 is irrelevant to [the] analysis” of admission of

deposition testimony under Rule 32(a)(4)(B). Id. at 915. But see Lehman Bro.

Holdings, Inc. v. Nat’l Bank of Ark., 875 F. Supp. 2d 911, 922 (E.D. Ark. 2012) (“The

party seeking to admit the deposition must prove that the requirements of both Rule

32(a)([4]) and Rule 804(b)(1) have been met. . . . ” (quoting In re Air Crash, 720 F.

Supp. 1493, 1502 (D. Co. 1989))).

Here, the record reflects that on August 4, 2016, Dr. Berns wrote and submitted

a letter to the officers’ counsel advising that he was unavailable for trial “during the

time period of August 8, 2016[,] through August 12, 201[6,] because [he would] be

busy in Chicago practicing medicine at [his] medical practices.” Plaintiff’s Response

to Defendant’s Objection to the Admission of Any Testimony from the Deposition

of Dr. Arnold Berns at 7. Given that the trial would take place in St. Louis, Missouri,

thissatisfies Rule 32(a)(4)(B)’s requirement that the witness be “more than 100 miles

from the place of . . . trial.” The officers have produced no record evidence to show

that Fletcher procured Dr. Berns’s absence. See id. 

The officers also argue that the district court failed to make an express finding

that Dr. Berns was “unavailable.” Because the district court failed to make an express

finding of unavailability, the officers contend, Dr. Berns’s deposition opinion is

(B) the declarant’s attendance or testimony, in the case of a hearsay

exception under Rule 804(b)(2), (3), or (4).” 

(Emphasis added.)

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inadmissible hearsay that should not have been read to the jury at trial. The officers’

argument is directly contradicted by Dunkin. In that case, the appellant argued that

the district court erred by admitting the deposition testimony of her attorney. 850 F.2d

at 443. The district court observed that the appellant’s attorney was not available

because he was required to appear in another case in another city on the same day. Id.

Both parties agreed that the city in question was more than 100 miles from the place

of the trial; however, the appellant argued that the district court failed to “make a

specific finding to that effect” under Rule 32(a)(4)(B). Id. This court held, “By

admitting the deposition of [the appellant’s] attorney, however, the court implicitly

found the conditions of rule 32(a)([4])(B) had been satisfied.” Id. (emphasis added)

(citation omitted). Therefore, the court found “no abuse of discretion in the district

court’s admission of the deposition.” Id. Dunkin stands for the proposition that no

express finding is required. 

Here, the district court made a finding that the conditions of Rule 32(a) were

satisfied based on Dr. Berns’s letter dated August 4, 2016, that he was “unavailable

to attend trial in Missouri during the time period of August 8, 2016[,] through August

12, 201[6,] because [he would] be busy in Chicago practicing medicine at [his]

medical practices.” Plaintiff’s Response to Defendant’s Objection to the Admission

of Any Testimony from the Deposition of Dr. Arnold Berns at 7. Dr. Berns stated that

he “live[s] in the Chicago area and [is] generally not available to attend trial in St.

Louis, MO.” Id. On the first day of trial, the district court noted that Dr. Berns had

“filed a letter that’s part of the record of the court that indicates he can’t be here

because he’s practicing medicine.” Jury Trial Proceedings Transcript, Vol. I, at 17.

Based on Dunkin, the district court’s admission of the deposition and

acknowledgment of this letter was sufficient. It did not have to expressly state on the

record that it was finding Dr. Berns “unavailable.” 

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3. Qualified Expert

The officers argue that Fletcher made no showing that Dr. Berns was qualified

to render his opinions based solely upon a review of some unidentified medical

records. The officers point out that Dr. Berns was the expert witness for Corizon, not

Fletcher. According to the officers, neither Corizon nor Fletcher ever made a showing

of Dr. Berns’s qualifications. 

On September 29, 2015, defendant Corizon disclosed Dr. Berns as its retained

expert pursuant to Federal Rule of Civil Procedure 26(a)(2). On November 24, 2015,

the district court issued a memorandum and order on Fletcher’s motion to amend the

case management order. That order provided, in relevant part, that “any motion to

exclude testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993)[,] or Kuhmo Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999), must

be filed no later than January 15, 2016.” Memorandum and Order at 2, Fletcher v.

Tomlinson, No. 4:14-cv-00999-RLW (E.D. Mo. Nov. 24, 2015), ECF No. 113 (bold

omitted). 

Fletcher’s counsel paid for and took the deposition of Dr. Berns on January 13,

2016. Counsel for the police officers extensively cross-examined Dr. Berns during

that deposition. 

As the district court pointed out, “Defendants never filed a Daubert motion

challenging [Dr. Berns’s] qualifications. Likewise, Defendants did not raise thisissue

before the Court when Defendants addressed the testimony of Dr. Berns immediately

before the trial.” Memorandum and Order at 7, Fletcher v. Tomlinson (Fletcher II),

No. 4:14-cv-00999-RLW (E.D. Mo. Oct. 14, 2016), ECF No. 219 (hereinafter,

“Fletcher II”). As a result, the district court concluded that the defendants had

“waived the right to assert that Dr. Berns was unqualified.” Id.

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On appeal, the officers argue that they did not waive their objection to the

hearsay opinion of Dr. Berns because they objected assoon as Fletcher disclosed that,

rather than produce Dr. Berns for cross-examination at trial, he would instead attempt

to read Dr. Berns’s deposition opinions into evidence. This belated objection has

nothing to do with Dr. Berns’s qualifications. Like the district court, we conclude that

the officers waived their Daubert challenge to Dr. Berns’s qualifications because the

deadline was January 15, 2016, and the officers did not submit a Daubert challenge

to Dr. Berns by this deadline. 

In summary, we conclude that the district court did not abuse its discretion in

admitting Dr. Berns’s deposition testimony. See Dunkin, 850 F.2d at 443. 

B. Punitive Damages

Officer Moton argues that the district court erred in submitting Fletcher’s

punitive damages claim against him to the jury because Fletcher produced no

evidence showing that he used excessive force, acted with malice or racial bias, or

caused any of Fletcher’s injuries. First, Officer Moton assertsthat no evidence at trial

showsthat he used excessive force against Fletcher because Fletcher never identified

him as one of the officers who attacked or injured him during the arrest. Officer

Moton contendsthat Fletcher testified that the officers who attacked him were white,

while Officer Moton is black. He also maintains that Fletcher identified Officer

Martorano as the officer who hit him. Finally, Officer Moton cites evidence that he

held Fletcher only around his legs, where Fletcher sustained no injuries. Second,

Officer Moton maintains that no evidence at trial shows that he caused any of

Fletcher’s injuries. Again, he assertsthat Fletcher identified Officer Martorano asthe

officer who injured him. Furthermore, the expert witnesses did not identify any

injuries to Fletcher’s lower body, where Officer Moton handled Fletcher. In the

absence of evidence that he used excessive force against Fletcher, Officer Moton

argues that the district court erred in submitting a punitive-damagesinstruction to the

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jury. The district court rejected these same arguments in the officers’ motion to alter

or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). 

“We accord a district court broad discretion in determining whether to grant a

motion to alter or amend judgment, and we will not reverse absent a clear abuse of

discretion.” Burckhard v. BNSF Ry. Co., 837 F.3d 848, 857 (8th Cir. 2016) (per

curiam) (citation omitted), reh’g denied (Oct. 19, 2016).

If a plaintiff’s underlying claim fails, then a plaintiff’s claim “for punitive

damages necessarily fail[s].” Schaffer by Schaffer v. A.O. Smith Harvestore Prod.,

Inc., 74 F.3d 722, 731 (6th Cir. 1996). “To establish a constitutional violation under

the Fourth Amendment’s right to be free fromexcessive force, ‘the test is whether the

amount offorce used was objectively reasonable under the particular circumstances.’”

Littrell v. Franklin, 388 F.3d 578, 583 (8th Cir. 2004) (quoting Greiner v. City of

Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994)). “The question for the jury is whether,

judging from the perspective of a reasonable officer at the scene of the arrest, the

totality of the circumstances justifies the use of the force used.” Id. at 584 (quoting

Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1081 (8th Cir. 1990)).

Here, we conclude that the district court properly submitted the issue of

excessive force to the jury, and the jury found that the officers, including Officer

Moton, violated Fletcher’s constitutional right to be free from excessive force. See

id. As the district court explained, “The jury clearly believed [Fletcher’s] version of

events with respect to Defendants Moton and Martorano.” FletcherII at 11 (emphasis

added). Fletcher testified that he did not resist the officers or give them any reason to

use force. 

First, the evidence sufficiently establishes that Officer Moton used excessive

force against Fletcher. Fletcher specifically identified “Officers Tomlinson,

Martorano, and Moton” asthe officers who “started kicking and punching and hitting

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[him] all over [his] body.” Jury Trial Proceedings, Vol. II, at 21. Fletcher described

being hit with “some kind of rod . . . [o]n [his] lower back, [his] legs.” Id. at 24.

Officer Moton was the officer who hit Fletcher with a baton, as confirmed in the

police report, Officer Moton’s testimony, and Officer Tomlinson’s testimony.

11

Second, the evidence sufficiently establishes that Officer Moton caused

Fletcher’s injuries. Officer Moton hit Fletcher with the baton. Fletcher testified that

he was hit with a rod-like instrument on his “lower back.” Id. at 24. Dr. Arkin

testified that Fletcher had a “linear wound” that could have been caused by “a linear

object” such as “a baton or a rod of some sort.” Jury Trial Proceedings Transcript,

Vol. I, at 74. Fletcher’s linear bruising appeared on his back, and it “was noted by the

professionals that were at The Justice Center.” Id. Dr. Arkin explained that the

kidneys are “located down in the torso near where [Fletcher’s] injury was.” Id. In

other words, Dr. Arkin confirmed that Fletcher’s kidneys were located in “the same

general area where the linear or line bruising was.” Id. at 74–75. Dr. Arkin’s opinion

was that “the trauma to [Fletcher’s] torso, to [his] back, . . . caused kidney failure.”

Id. at 88. 

Because Fletcher’s excessive-force claim is supported by sufficient evidence,

we next address whether sufficient evidence supports the jury’s award of punitive

damages against Officer Moton. See Schaffer by Schaffer, 74 F.3d at 731. “Punitive

damages may be awarded under 42 U.S.C. § 1983 ‘when the defendant’s conduct is

shown to be motivated by evil motive or intent, or when it involves reckless or

callous indifference to the federally protected rights of others.’” Schaub v. VonWald,

638 F.3d 905, 922 (8th Cir. 2011) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).

Officer Moton testified that he “pulled [his] ASP [(baton)] out and [he] hit

11

[Fletcher] on the back of the leg.” Id. at 220 (emphasis added). Thus, he admits to

using the baton, but he contests where he hit Fletcher with it. Officer Tomlinson

confirmed that “[Officer] Moton was the one who was hitting [Fletcher] with the

baton.” Id. at 123. 

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The purpose of punitive damages is to “punish a defendant for outrageous,

intentional, or malicious conduct, and deter similar extreme conduct in the future.”

Id. at 922–23 (citations omitted). “[W]hether a defendant’s conduct was motivated

by an evil motive or involves reckless indifference to the federally protected rights

of others” “is a question of fact.” Id. at 923 (citation omitted). We agree with the

district court that 

there was sufficient evidence of malice, recklessness or callous

indifference to support this verdict based upon the extensive injuries

suffered by [Fletcher], as well as his testimony that he was beaten after

he complied with the officers and after he was handcuffed. The jury also

relied upon the expert witness testimony that [Fletcher’s] injuries were

caused by the actions of [Officers] Moton and Martorano. Based upon

all of the foregoing, the jury had a reasonable basis for awarding

punitive damages to [Fletcher]. 

Fletcher II at 11–12. 

C. Deducting Settlement Amount

Finally, Officers Martorano and Moton argue that the district court neglected

to deduct from the judgment amount the sums that Fletcher received from the pretrial

settlements with other defendants.

The record showsthat a week prior to trial, on July 29, 2016, Fletcher’s counsel

notified the officers’ counsel that “Perry County paid . . . to settle the case and the

Corizon Defendants paid . . . to settle the case. It is our understanding that these

numbers and settlements are confidential and are protected fromdisclosure in writing

or orally to other parties.” Add. at A022. At no time prior to trial or during trial did

the officers bring these settlements or the issue of offset to the district court’s

attention. Only after trial did the officers ask to reduce any actual damages by the

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settlement amounts via a Rule 59(e) motion to alter or amend the judgment. That

motion provided, in relevant part:

Pursuant to a settlement with Corizon, Inc. and other former defendants

in this case, Plaintiff has received payment of substantial sums toward

his actual damages. By agreement between counsel, the parties have

kept the settlement amounts confidential, and, with the Court’s

permission, a memorandum will be filed under seal advising the Court

of the settlement amount by which the Judgment should be reduced. 

WHEREFORE, Officer John Moton and Officer Nicholas

Martorano each prays that the Court amend the Judgment by subtracting

from the Judgment the amounts that Plaintiff has received by way of

settlements and that the Court also eliminate and/or reduce one or both

of the awards of punitive damages that the jury awarded in their

verdicts. 

Motion to Alter or Amend the Judgments at 1–2, Fletcher v. Tomlinson, No.

4:14-cv-00999-RLW (E.D. Mo. Sept. 7, 2016), ECF No. 205. 

In their memorandumin support of their Rule 59(e) motion, the officers did not

mention their offset argument. In its memorandumand order, the district court did not

address this aspect of the officers’ Rule 59(e) motion.

Federal Rule of Civil Procedure 59(e) was adopted to clarify a

district court’s power to correct its own mistakes in the time period

immediately following entry of judgment. Rule 59(e) motions serve a

limited function of correcting “‘manifest errors of law or fact or to

present newly discovered evidence.’” Such motions cannot be used to

introduce new evidence, tender new legal theories, or raise arguments

which could have been offered or raised prior to entry of judgment. A

case in which a timely Rule 59(e) motion has been filed lacks finality

because the motion tolls the time limitation for appeal in order to

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provide the trial court with jurisdiction to resolve the motion. This

“tolling process” encourages “both correctness and finality.” 

Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d

1284, 1286 (8th Cir. 1998) (citations omitted). 

Here, the officers were using Rule 59(e) to introduce a new legal argument not

previously raised before the district court—the legal argument that the settlement

amounts should be reduced from any actual damages awarded. Rule 59(e) cannot be

so used. See id. For that reason, the district court did not err in declining to address

the issue, and we affirm the district court’s denial of the officers’ Rule 59(e) motion

on this ground. 

III. Conclusion

Accordingly, we affirm the judgment of the district court. 

______________________________

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