UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSEPH P. SMITH )

)

Plaintiff, )

) No. 12 C 4546

v. )

) Judge Sara L. Ellis

CAPTAIN MARK ALTMAN, )

)

Defendant. )

OPINION AND ORDER

After a trial in October 2014, the jury returned a verdict in favor of Plaintiff Joseph P. 

Smith and against Defendant Captain Mark Altman on Smith’s claim of excessive force under 42 

U.S.C. § 1983. The jury awarded Smith a total of $1,326,779.15 in compensatory damages, 

which included $600,000.00 for pain and suffering, $300,000.00 for loss of normal life, and 

$264,330.15 for medical care. Punitive damages in the amount of $5,000.00 were also awarded 

against Altman. By separate Opinion and Order to be issued concurrently with this one, the 

Court has determined that the City is entitled to a set-off of the medical care award in the amount 

of $264,330.15. 

The Court had ruled pre-trial that the City of Chicago (“City”) was a nominal defendant. 

The City did not attend the trial. On November 26, 2014, the City filed a Rule 59 Motion for 

New Trial or, in the Alternative, for Remittitur [186], arguing that Smith’s counsel violated 

pretrial rulings in closing argument, which misled the jury and resulted in an excessive 

compensatory damages award. The City also argues that the damages award is against the clear 

weight of the evidence and therefore a new trial on damages or remittitur is required. Smith filed 

a response and also moved to strike the motion in toto because the City was a nominal defendant 
that did not participate at trial. For the following reasons, Smith’s Motion to Strike [189] is 

denied. The City’s Motion for New Trial or in the Alternative for Remittitur [186] is granted in 

part and denied in part. The City’s motion for new trial is denied. The Court grants the City’s 

alternative request for a remittitur of the compensatory damages award, however, and remits the 

jury’s verdict to $656,779.15.

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ANALYSIS

I. Smith’s Motion to Strike & the City’s Motion for New Trial

Smith moves to strike the City’s motion for new trial or remittitur on the basis that the 

City is a nominal defendant and therefore has no standing to object to the trial proceedings. 

Smith further argues that the City has waived any potential objections because it made no such 

objections at trial. The City argues that although it is a nominal defendant, it had a substantive 

interest in the damages portion of the case and should therefore be allowed to move for a new 

trial. The City requests a new trial on the grounds that Smith, in closing argument, mislead the 

jury into believing that he paid the portion of stipulated medical bills not paid by the City and 

claimed future medical expenses as part of the “loss of normal life” category of compensatory 

damages without having presented any evidence on this point. The City further argues that this 

inflated amount was then tripled by the jury for the “pain and suffering” award.

At a May 8, 2014 hearing, the City introduced itself as no longer a party to the case and 

admitted it would indemnify Altman and that Altman was acting in the scope of his employment 

during the incident. At that hearing, the Court explained to Smith’s counsel, “[w]hat this means 

is that [the City’s] not in the case substantively, so they are only there for indemnification. . . . 

They’re not going to be participating as a defendant in the case. . . . They’re here solely for 

1 The City has also filed a motion for set-off of certain amounts from the compensatory damages award [196]. The 

total remitted jury verdict of $656,779.15 discussed in this motion does not reflect the set-off amounts. Those 

amounts are discussed in a separate Opinion and Order that is issued concurrently.

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indemnification purposes. They will not be at counsel table, there will just be counsel for 

Defendant Altman.” Doc. 189-2 at 6, 10. Counsel for the City also appeared at the pre-trial 

conference, where counsel introduced himself on behalf of “the nominal defendant, City of 

Chicago” and argued for a set-off hearing post-trial, which was granted on the basis that the City 

was still a defendant in that it was “dismissed to the extent that they don’t need to be at trial,” but 

“they’re the ones that are ultimately paying. . . . They’re entitled to a setoff.” Doc. 186-1 at 3–4. 

Counsel for the City then participated in pre-trial conference discussions about a possible 

stipulation to the amount of Smith’s medical bills, then excused himself. Id. at 4–25. The 

parties and the Court understood that the City was a nominal defendant in the sense that, 

although not technically dismissed from the case, it was in place for indemnification purposes 

only and would not participate at trial. The City itself proposed this posture and made no effort 

to correct the Court or participate in the trial during the May 2014 hearing, the pre-trial 

conference, or the trial itself. 

Smith first argues that the City is a nominal defendant and therefore has no standing to 

bring this new trial motion. Smith cites several Seventh Circuit cases that define “nominal 

defendant” as a party brought into a case as the keeper of the funds in dispute—i.e. the 

“depositary”—that has “no interest in the property that is the subject of the litigation.” See SEC 

v. Cherif, 933 F.2d 403, 414 n.13 (7th Cir. 1991). Nominal parties have also been described (in 

the remand context) as “a party without a real interest in the subject matter being litigated [that] 

can be joined merely as a means of facilitating collection of the disputed subject matter.” Legal 

Helpers Debt Resolution, LLC v. Global Client Solutions, No. 12-CV-03055, 2012 WL 3017886, 

at *2 (N.D. Ill. July 23, 2012). The City argues that the concept of a nominal defendant is not a 

bright line test, but rather a balancing test examining whether the party has an interest in the 

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particular litigation. The City argues that it has a clear interest in the litigation, citing the 

indemnification and respondeat superior claims pleaded against it, its agreement to indemnify 

Altman for any compensatory damages award, and its ownership interest in the funds to be used 

for that award. The City also cites its participation as a party in the case by answering the 

complaint, including asserting an affirmative defense of set-off on which it was granted a posttrial evidentiary hearing, and responding to discovery.

The City agreed that it would not participate at trial, then requested and was granted a 

post-trial set-off hearing to assert its rights. Although the City has an interest in the damages 

award (because it will eventually be on the hook to pay that award), because it did not participate 

in the trial, it cannot now complain about stipulations and closing arguments to which an 

objection should have been made at the time. Whether or not the City is a “nominal defendant” 

under the Seventh Circuit case law cited by the parties to the Court, it has certainly waived any 

new trial arguments based on evidentiary objections. The proper party to bring such a motion 

would have been Altman himself, who did not preserve these objections at trial and has therefore 

waived them.2

 See Deppe v. Tripp, 863 F.2d 1356, 1363 (7th Cir. 1988) (the failure to object at 

trial waived appellate review of challenge to closing argument). 

The City argues that “the handling of the damages sector of the trial was determined” at 

the pre-trial conference that it attended, and that meant “only the liability-related issues 

remain[ed], thereby leading the City to believe that it had, in fact, preserved such rights and 

privileges regarding all damages aspects of the trial in this case.” Doc. 210 at 6. However, the 

pre-trial conference did not settle all aspects of the presentation of damages evidence. On the 

contrary, despite the Court’s urging, counsel could not come to an agreement on the total amount 

2 Altman brought his own motion for new trial [184] based on other objections, which is addressed in a separate 

opinion.

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of medical bills or lost wages at that conference and were strongly encouraged by the Court to 

create stipulations to present those issues to the jury. The City further argues that it did not 

tender its defense to Altman’s counsel and therefore has not waived any right to object to aspects 

of the handling of damages at trial. But the City styled itself a nominal defendant and did not 

attend trial. It was clear from the pre-trial conference that many aspects of the damages portion 

of the trial were uncertain and disputed. The City has waived these arguments and cannot come 

in at this late date with evidentiary objections.

The Court denies the City’s Motion for New Trial. Smith’s Motion to Strike is also 

denied, because the City’s Alternative Motion for Remittitur, as discussed below, is well-taken.

II. The City’s Motion for Remittitur

In the alternative, the City asks the Court to remit the compensatory damages award, 

arguing that the jury’s award is not rationally connected to the evidence and is not comparable to 

awards in similar cases. Even if the City has waived its evidentiary arguments for new trial, the 

Court may consider the question of remittitur sua sponte. See Superbird Farms, Inc. v. Perdue 

Farms, Inc., 970 F.2d 238, 247 (7th Cir. 1992) (reviewing district judge’s grant of remittitur on 

its own motion), overruled on other grounds by Medcom Holding Co. v. Baxter Travenol Labs., 

Inc., 106 F.3d 1388, 1397 (7th Cir. 1997).

Compensatory damages serve to make the plaintiff whole—i.e. “to redress the concrete 

loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct.” Garcia v. 

City of Chicago, No. 01 C 8945, 2003 WL 22175622, at *3 (N.D. Ill. Sept. 19, 2003) (quoting 

Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432, 121 S. Ct. 1678, 149 L. 

Ed. 2d 674 (2001)). A jury’s verdict is entitled to deference. Farfaras v. Citizens Bank & Trust 

of Chicago, 433 F.3d 558, 566 (7th Cir. 2006). However, when deciding whether to remit a jury 

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verdict, the district court may consider whether that verdict is “monstrously excessive,” if there 

is no rational connection between the verdict and the evidence presented at trial, and whether the 

award is roughly comparable to awards in similar cases. Thompson v. Mem’l Hosp. of 

Carbondale, 625 F.3d 394, 408 (7th Cir. 2010). The Seventh Circuit has advised courts to 

consider the “monstrously excessive” inquiry as “another way of asking whether there is a 

rational connection between the award and the evidence.” O’Sullivan v. City of Chicago, 474 F. 

Supp. 2d 971, 982 (N.D. Ill. 2007) (citing Deloughery v. City of Chicago, 422 F.3d 611, 619 n.4 

(7th Cir. 2005)). 

Based on a review of the evidence and when considered against other, similar cases, the 

jury’s award of $600,000.00 for pain and suffering and $300,000.00 for loss of normal life are 

excessive, lack a rational basis in the damages evidence presented, and are not in line with 

awards in comparable cases. 

A. Trial Evidence

The evidence presented by Smith, including Smith’s own testimony and that of his 

treating physician, Dr. Sweeney, does not support an award of this magnitude for pain and 

suffering and loss of normal life. Pain and suffering, as defined by the jury instructions read at 

trial, comprised both physical and “mental/emotional pain and suffering.” Doc. 165 at 27. Loss 

of normal life was described as “disability/loss of a normal life” in the jury instructions. Id. 

Loss of normal life means “the temporary or permanent diminished ability to enjoy life . . . [and] 

includes a person’s inability to pursue the pleasurable aspects of life.” Ocampo v. Paper 

Converting Mach. Co., No. 02 C 4054, 2005 WL 2007144, at *7 (N.D. Ill. Aug. 12, 2005). Both 

of these damages awards have physical and emotional suffering components, therefore the Court 

will review the evidence presented by Smith on both aspects.

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The Court will first review the evidence of physical pain and suffering. Prior to the 

incident with Altman, Smith was in excellent athletic conditioning and worked as a marine diver, 

a physically demanding job. Dr. Sweeney testified that Smith had preexisting conditions, 

including degenerated discs and arthritic joints, that were asymptomatic prior to, but exacerbated 

by, the incident. Smith had severe pain after the incident which caused him to seek help at the 

emergency room on two separate occasions. Smith then consulted an orthopedic surgeon, Dr. 

Sweeney. Smith also saw a pain specialist, who attempted unsuccessfully to treat him with 

epidural steroid injections. Dr. Sweeney performed two operations on him, the second a spinal 

fusion. Smith underwent a year of physical therapy before the spinal fusion and wore a neck 

brace for a period of over six months. Smith has worn a back brace since the February 2013

spinal fusion surgery. Before the second surgery, Smith had numbness in his legs that made it 

difficult for him to stand at times. That surgery improved the pain. Smith also testified that his 

pain has diminished over the years since the accident. Dr. Sweeney has recommended another 

neck fusion for Smith because Smith had recently complained of tingling in his fingers and neck 

and pain in his shoulder, low back, groin, and some numbness in his legs. Treatments have 

improved those complaints partially. Smith has elected not to have that surgery at this time. Dr. 

Sweeney testified that Smith will have on-going pain that will limit him from many of his prior 

activities. After the incident, Smith developed sacroiliac joint syndrome either from the incident 

or the spinal fusion surgery. 

The City’s expert, Dr. Kessler, testified that Smith’s injuries from the incident were 

relatively minor and should only have required limited physical therapy and physician visits. 

She further testified that Smith’s complaints of pain and numbness were likely symptoms of a 

degenerative condition that was long-standing and could not have occurred as a result of the 

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incident. She testified that this condition was not exacerbated by the incident. Dr. Kessler also 

opined that Smith’s symptoms could not have been caused by the diagnosis given by Dr. 

Sweeney and that the pain reported could not have been linked to the portions of the neck and 

back Dr. Sweeney targeted for the surgeries.

As for proof of emotional damages, Smith testified that he is no longer able to work as a 

marine diver, which is his dream job. His doctor has recommended that he be assigned a desk 

job once he can meet the physical entrance exam requirements and be cleared for duty. Smith is 

working hard in physical therapy to get to that point. The incident affected his relationship with 

his children, because he is not able to be as active a father as he once was—for instance, he is not 

able to attend all his children’s musical performances. Smith testified that he feels the incident 

was wrong and that he was miserable for the first year after the accident. 

When considering remittitur, this Court must give deference to the jury’s determination 

of damages, however it must also consider whether the award has a rational basis in the 

evidence. See Spina v. Forest Pres. Dist. of Cook County, 207 F. Supp. 2d 764, 771 (N.D. Ill. 

2002). The jury could find, based on Smith’s own and Dr. Sweeney’s testimony, that Smith had 

a great deal of pain after the incident and, despite over three years of medical intervention, 

continues to suffer from pain. Further, Smith wears a back brace, continues to have some 

numbness, and has sacroiliac joint syndrome. Smith is working to return to the police force but 

will almost certainly be confined to a desk job. Smith testified to the effect of the incident on his 

emotional and family life in that first year after the event, and that he can no longer be as active a 

participant in his children’s lives as he would like. 

Smith undoubtedly continues to have pain and some limitations in his level of activity. 

His family life has been affected by his medical condition. He will not be able to return to 

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marine diving, although he will hopefully return to the Police Department in some capacity. The 

trial evidence does not, however, support an award of $600,000 for pain and suffering. See 

Garcia, 2003 WL 22175622, at *4 (limited evidence of physical and emotional injuries 

warranted remittitur of $1,000,000 compensatory damages award); Reising v. United States, 60 

F.3d 1241, 1244 (7th Cir. 1995) ($150,000 award for pain and suffering after back injury). 

Indeed, in terms of emotional damages, another court noted that, “[i]n only a few cases within 

the Seventh Circuit have courts upheld jury verdicts of more than $50.000.00 for emotional 

damages” and that “special circumstances,” including threat of on-going physical injury, was 

required for six-figure emotional damages awards. See Spina, 207 F. Supp. 2d at 773–74

(reviewing cases). Furthermore, $300,000 for loss of normal life is wildly excessive considering 

the limited evidence presented—Smith did not present evidence of permanent disability beyond 

his continued pain and the continued use of a back brace. He further gave no testimony about an 

inability to enjoy life besides some limitations on his ability to attend his children’s 

extracurricular functions. Cf. Ocampo, 2005 WL 2007144, at *7 (evidence of plaintiff’s 

nightmares, post-traumatic stress, depression, and avoidance of public places supported 

$1,000,000 loss of normal life award). Although the Court acknowledges the difficulty in 

quantifying these kinds of damages, the amounts awarded by the jury bear little relationship to 

the evidence presented at trial. 

Finally, the jury is entitled to credit the testimony of Dr. Sweeney over Dr. Kessler as to 

the source of Smith’s pain and the proper course of treatment. But beyond the lack of rational 

evidence to support such an out-of-proportion pain and suffering award, the Court believes that 

the jury likely increased the size of this award out of a desire to compensate Smith for the 

ineffective and possibly destructive medical treatment he received from Dr. Sweeney after the 

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incident. This is an irrational, improper basis for inflating the verdict. See Garcia, 2003 WL 

22175622, at *4 (remitting award “born of passion and prejudice” because it was based, in part, 

on the jury’s likely desire to punish the police department for other offenses, not to compensate 

the victim for his injuries). 

B. Comparative Cases

The Court may also consider awards in similar cases as a reference point in assessing 

reasonableness. See Adams v. City of Chicago, --- F.3d ----, 2015 WL 4863526, at *5 (7th Cir. 

2015). A review of awards in this and other circuits shows that the range for pain and suffering 

in similar cases is between $80,000 and $150,000. These cases also involve back injuries, 

multiple surgeries, and continuing pain, yet courts remit $500,000 and $600,000 pain and 

suffering awards. While the Seventh Circuit has recently reminded district courts that “[t]here 

must be room for a jury’s award to exceed the relevant range of cases when facts warrant,” as 

discussed above, Smith did not present proof of damages sufficient to support the $600,000 

award. See id. 

For example, in a case very similar to this one, plaintiff suffered head injuries in an 

automobile accident that he asserted aggravated or accelerated pre-existing back problems. 

Reising, 60 F.3d at 1242. After multiple surgeries, the plaintiff continued to live with significant 

pain and this affected his ability to work at his former profession. Id. The Seventh Circuit 

upheld a $150,000 award to the plaintiff for his increased suffering as a result of the accident. 

Id. at 1244. Similarly, the Seventh Circuit remitted an award of almost $300,000 to $138,204.39 

in a case where the plaintiff suffered several fractured vertebrae, required one surgery, was in 

pain and could not walk normally or climb stairs for six months after the surgery, and whose 

doctor may recommend an additional spinal surgery. Abernathy v. Superior Hardwoods, Inc., 

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704 F.2d 963, 973 (7th Cir. 1983). Other federal and state cases support this range of up to 

around $150,000 for pain and suffering resulting from back injury with continuing pain. See 

Ferrero v. United States, 603 F.2d 510, 515 (5th Cir. 1979) (reducing $650,000 award to 

$375,000 for a fifty-three year old female, an avid sports participant, who was severely and 

painfully injured, but recovered with permanent partial disability, some pain, and loss of 

enjoyment of life; reducing $650,000 award to $150,000 for twenty-four year old seriously and 

painfully injured, who recovered but had continued pain); Evans v. City of N.Y., 613 N.Y.S.2d 

712, 713 (N.Y. App. Div. 1994) (reducing $600,000.00 past and future pain and suffering award

for back injury to $90,000.00); Coleman v. State, 353 So. 2d 249, 253 (La. Ct. App. 1988) 

(reducing $500,000 award for neck injury to $80,000). The Court notes, however, that these 

cases are all ten years old or older, therefore $150,000 is likely low taking into account economic 

and inflationary changes.

Smith presents state court cases from Illinois and other states to support his argument that 

$600,000 in pain and suffering is reasonable. See Spina, 207 F. Supp. 2d at 773 (“Plaintiff 

correctly notes that this Court is not limited to considering damages awarded within the Seventh 

Circuit, or even to considering only those awards that have been specifically challenged as 

excessive.”). However, Smith’s examples involve more extreme damages than those proven at 

trial here. See Dewart v. City of Chicago, 2013 Jury Verdicts LEXIS 10654 (Sept. 20, 2013)

($850,000 pain and suffering award to plaintiff hit by a truck who suffered four fractured 

vertebra, a broken right leg requiring a metal rod, a six-day initial hospital stay, a torso brace, 

physical therapy, and a follow-up surgery); Doss v. Luken, 1999 Nat. Jury Verdicts Review 

LEXIS 2828 (Sept. 8, 1999) ($1,950,000 pain and suffering award to plaintiff whose 

neurosurgeon negligently removed two vertebra, leading to a second surgery to remove two 

11
additional vertebra, and leaving the plaintiff with a permanent restriction on bending, stooping, 

and lifting over five pounds, and permanent bowel and bladder urgency); Gaston v. City of 

Springfield, 2006 Jury Verdicts LEXIS 48469 (Mar. 1, 2006) ($3,000,000 pain and suffering 

award to plaintiff left quadriplegic after back injury from car accident); Fontneau v. Champagne, 

1995 Nat. Jury Verdict Review LEXIS 762 (Sept. 11, 1995) ($750,000 pain and suffering award 

to plaintiff who reported “excruciating pain,” could not walk, and was rushed to the emergency 

room, suffering 10% permanent partial disability of the lumbar spine and herniated disc after 

negligent chiropractic sessions); Allen v. D.C. Water & Sewer Auth., 2009 DC Metro Verdicts 

Monthly LEXIS 644 (Mar. 4, 2009) ($611,238 award to plaintiff who suffered inoperable disc 

herniation in automobile accident during funeral procession; case settled for a reduced amount 

pending motion for remittitur). The one federal case presented by Smith, McGregor v. Harrah’s 

Ill. Corp., 2001 Jury Verdicts LEXIS 47290 (Mar. 12, 2001), is not comparable because it was 

brought under the Federal Employers Liability Act, which the Seventh Circuit has explained 

often results in very large jury awards. See Frazier v. Norfolk v. W. Ry. Co., 996 F.2d 922, 926 

(7th Cir. 1993) ($2.3 million jury award did not “shock[] our judicial conscience” because 

“[l]arge FELA jury verdicts in state and federal court are not uncommon”).

The Court finds that the cases presented by the City establishing a rough upper limit of 

$150,000 in pain and suffering for back injuries are the most comparable, if somewhat dated. 

Considering these, the jury’s award of $600,000 is shockingly large. 

CONCLUSION

For the foregoing reasons, Smith’s Motion to Strike [189] is denied. The City’s Motion 

for New Trial [186] is denied. The City’s Alternative Motion for Remittitur [186] is granted. 

The Court finds that a reasonable award in this case is $200,000 for pain and suffering and 

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$30,000 for loss of normal life. The Court orders Smith to consent to a $670,000 remittitur of 

the $1,326,779.15 compensatory damages jury verdict, resulting in a compensatory damages 

award of $656,779.15 before the set-off discussed in the Court’s separate Opinion and Order, or 

to consent to a new trial on the issue of compensatory damages. Smith may file with the Clerk of 

the Court an acceptance of the remittitur to $656,779.15 on or before October 6, 2015. If Smith 

consents to the remittitur, an Amended Judgment in the amount of $392,449.00 will issue. In the 

event Smith does not file an acceptance of the remittitur on or before October 6, 2015, a new trial 

on Smith’s compensatory damages only (Altman’s liability having been established) will 

commence on a date to be set at the next status hearing on October 13, 2015.

Dated: September 21, 2015 ______________________

SARA L. ELLIS

United States District Judge

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