* The Honorable Karen K. Caldwel l, Uni ted Stat es Dist ric t Ju dge f

or the Eastern Distri ct of Kentucky, si tting by designation.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0270P (6th C ir.) File Name: 04a02 70p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

C ALVI N B. C HAMPION et al., Plaintiffs- Appellee s,

v.

O UTLOOK N ASHVILLE , I NC . et al., Defenda nts,

D EBBIE M ILL ER et al., Defenda nts-Appe llants. X - - - -

> , - - - - - - - N No. 03-5068

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 00-00568—Todd J. Campbell, District Judge.

Argued: April 21, 2004
Decided and Filed: August 19, 2004

Befor e: BATCHELDER and MOORE , Circuit Jud ges; CALDWELL , District Judge. * 2 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

_________________ COUNSEL

ARGUED: Francis H. Young, M ETROPOLI TAN DEPARTMENT OF LA W , Nashville, Tennessee, for Appellan ts. Trent A. M c Cain, COCHRAN, CHERRY, GIV ENS, SMITH & MONTGOMERY, Chicago, Illinois, for Appellee s. ON BRI EF: Francis H. Young
, METROPOLI TAN DEPARTMEN T OF LAW, Nashville, Tennessee, for Appellants. Trent A. McCain, James D. Mo nt go me ry, Th omas C. Marszewski, C OCHRAN, CHERRY, GIVENS, SMI TH & MONTGOMERY, Chicago, Illinois, for A

ppellee s.

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. The death of Calvin D. Champion (“Champio n”) shortly af ter being detaine d, restrained, and subdued by Nashville P olice Officer s present s us with a di ffic ult iss ue of whether the Officers ar e entitled to qualified immunity such that we should reverse a jury verdict r ende red against them. On April 30, 1999, Ch am pion overwhelmed the facilities of his caregiver, promoting a response by the Nas vh ille Police. Three Nashville Police Of

ficers, Defend

ants-App ellants D ebbie Miller (“Miller”), Richard Woodside (“Woodside”), and Craig Dickhaus (“Dickhaus”) (collectively “Defendants” or “Officers”), subdued Champion with pepper spray and physical restraints. At trial, five different witnesses testified that after Champion wa s handcuffed an d his feet were bound, the Officers continued to pepper spray Champion a

nd to apply pressure t o Champion’s back as he lay on his stomach. Champion die d en r oute to the hospital sh

ortly after th is incide nt. Champion’s father, Calvin B. Champion, andNo. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 3

1 Cha mpio n’s father brought the acti on individually and as the personal represen tati ve o f C hamp ion’s estate. Champ ion’s sister was a plaintiff in he r individ ual cap acity on ly. Champion’s sister, Jet

onne Cham

pion-Coll i ns, (together “Plaintiffs”), 1 brought an action against the Off icers pursuant to 42 U.S.C. § 1983. A jury awa rded the Plaintiffs $900,000 indamages for Cham

pio n’s physical and menta l pain and suffer ing. Following the return of th e verdict, the district court denied

the Officers’ motion for a judgment as a matter of law or a n

ew tria l or remit titur, in which they arg

ued that they were entitled to qualified immunity and that the verdict was excessive.

While the Officers undoubtedly faced unenviable choices in their inte

raction s with Champ ion, they are not e ntitle d t o qualified immunity . Based

upon the te stimo ny pre sented at trial, the Offi cers’ a

ctions in this particular

situation violated Champion’s clearly

established righ

ts. Conseq

uentl y , we AFFIRM the judgment of the district court, which upheld the jury ’s verdi ct.

I. FACTS AND PROCEDURE

A. Fac tual Backgr ound

The parties mostly ag

ree on the anguishing

series o f events that culminate d in Champion’s de ath, but th ey differ w ith regards to the most c

rucial m oments of

the incid

ent. Champion, w ho was 32 years old a t the time of his death, complete ly

lacked t h e ability to care for himself on a ccount of his autism. He was nonresponsive and unable to speak. Outlook Nashville, Inc. (“Outlook”) , which provided care for developmentally

disabled individua ls, was re sponsible

for his well- being. On A pri l 30, 2000, Jolene Delelys (“Dele lys”),

anOutlook empl oye e, watched over Champion. Upon departingfrom a Na sh vi lle Babies ‘R’ Us store, where 4 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

De le lys had taken Champion and her three-y ear-old son Devin, Champion began to have a “ behavio r.” Delely s had neglected to se atb elt Champi on, and Cha mpion beg an to

move around Delely s’s minivan, hitting himself in the face and biting his hand, which was a ty pe of “ behavi or” Champion freque

ntly exhibited. Delely

s s t ated that Champion was very

agitated, “slapping his own head harder thanusual, biting his own hand h arder than usual, slapping the top of [Devin]’s head, shaking [Devin]’s hand. ” Joint Appendix (“J.A.”) at 165.

De le lys stopped the van, fearing that Champion’s behavior would further escalate. Del elys and Champion both exited the van. Champion grabbed Delely s’s right hand

and started to rub her hand all over his head, a response which, unbeknow

nst to Delelys, had helpe d

Champion to

calm down inth e p as t. De le lys became frightened. She broke away from Champion and locked

herself in the van , realizin

g she ha d lost control. Delelys tried to g et help. She failed in her repeated attemptsto call the Outlook emergency number. F in al ly, Del el ys called 911. Right after she finished her phone c all
, Officer Debbie M ille r app eared at the driver-side window, having been alerted to the developing problem by other Babies ‘R’ Us customers who had phoned91 1. De le lys informed Mi ll er th at Ch am pi on wa s m en ta ll y il l, bu t D el el ys did not te ll Mi ller that Champion was nonverbal and nonresponsive.

Miller approached Champion, asking him for his name and to explain the reason for

his agitation. Champion was hitting and biting hi mself as he began to appr

oach Mille

r. Miller told Champion to s top, but Champion kept advancing towards Miller. Miller had

walked backwards about fifty feet throu gh t he parking lot, retreating from Champion, when Cham pio n grabbed Miller’s shirt. Miller pushed Champion’s hand away and delivered a short burst of pepper spray to Champion’ s face.No. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 5

Champion walked dazedly into the Babies ‘R’ Us. Miller followed him into the

store, a nd after a few minutes she touched him on the arm and ordered him to leave. Champion responded

to this command, gi ving Mille

r the false impre ssion that Champion actually understood her . Just as the two exit edthe store, Officer Richard Woodside arrived. Miller infor med Wo odsi de that Champion was “10-35” — police c ode for “

mentally ill individual” — and that she had previous ly

sprayed Champion with peppe r spray. Miller a

nd Woodside attempted to arrest Champion outside the store, but the Officers struggled with Champion until Officer Craig Dickhaus arrived. The Officers decided to take Champion to the ground in the entranc e foy er of the store, a n area w ith carpet ing. As Miller

describ ed it, “Woo dside ben ds or squa ts downt o where he has his arms wrapped around, a bear hug p osition if you wil l, of C hampi on’s l ower l egs . And a s Of ficer Dickhaus and myse lf step forward, we bring Champion down to his knees, a nd t hen from his knees we gently la y him from his knees, his knees to his stomach, and down on his chest to the ground.” J.A. at 248.

Once on th e gr ound Ch ampion struggled. The Officer s handcuffed

Champion usin g two sets of hand cuffs so as to allow Ch amp ion more movement. Champion continued to squirm and

move aro und. Bec ause Woodside ha d difficu lty controlling Champion’s feet, wh ich we re kicki ng hig h into the air, Miller an d Dickhaus decided to restrain Champion further through the use of a “hobble device,” which essentia lly binds an in

divid ual’ s ankles together. The Officers had difficulty putting on the hobble device b e cause Champion was still kick ing violently , but they eventua lly “hobbled ” him.

The parties’ diverg ent rec ounti ng of what occurred in the seventeen minutes b etween the application of the hobbling device and the arrival of the emergenc y medical tec

hnicians (“EMT”) was one of the most significant factual issues at trial and is the axis a

round whi ch this ap

peal re volv e s. The 6 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

Plaintiffs have n ot su gge sted t hat the Officers acted improper ly before Champion was handcuff edand hobbled. Indeed, the Plaintiffs’ entire § 1983 claim is premised on the Office rs’ a lleged use of pepper spray and application of asphyxiating

pressure after Champion’s incapacitation. The parties disagreed during

trial, and continue to diverge, in their respective understandings of how m uch force the Officers used after Champion was incapacitated on the g round.

After several minutes of b ein g on the ground, Champion began to vomit. Woodside im mediately ca lled for an ambulance. Between Champion’s first regurgitation and the arrival of th e EMTs, Cha mpion vomite d two more times. Each time, a ccording to the officers, Dickhaus a nd Miller pulled Champion back by the ar ms so that he wou ld not b e lying in his own v omit. They also che cked Ch ampion’ s mouth and nose to ensure that he wa s still br eathing. The Officers reporte d th at af

ter vomiti

ng, Cham pion was a

lert, blinking, breathing, and moving his head fr om side-to-side.

The EMTs entered the s tore shortly afte r Champion vomited fo r a thi rd time. The first EMT to view Champion

was Douglas Bagg ett (“Bagge tt”). Baggett testified

that as he stepped over Champion, he no ticed that C hampi on’s l egs moved a couple of inches, which gave B aggett theimpression that Champion was alive. Then, Cha mpion’s “ belly rose, his back rose up, and

then he vomited,”

J.A. at 153 (

Bagg ett Test.), such that Baggett thoug ht he was watching Champion “take his last brea

th .” J.A. at 154. Baggett failed to find a pulse on Champion and asked the Office rs to remove the handc uffs, which the

y pr omptly did. Champ ion went in to

ca rdiac arrest; despite effort to resuscitate him, he wa s pronounc ed dead

on arriv al at the h

ospital.
All three Officers claim that none of them put pressure on Champion’s back or p

ressed Champion’s

face in to the floor suchthat he could not breathe during this entire time period. See J.A. at 181, 185 (Dickhaus Test.); J.A. at 255-56 (MillerNo. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 7

Test.) (“Not onl y did I not [l ie acro ss Champion ’s back, lie

acrosshis legs, or kick him], I took extra care myself to make

sure that Champion did not receiv e any injuries fr om the ground . . . . [ W]e knew he had a mental problem.”); J.A. at 298 (Woods ide Test.). Additionally, the Off icers claimed that Champion was not spray

ed aga in with chemica ls after he was

on t he gro und. J.A. at 185 (Dickhaus Test.); J.A. at 298 (Woodside Test.). Pa

ramedic Dougla s Sleight

er, who i s
ex tremely sensitive to pepper

spray such that

he feel s i t s effec ts if it is sprayed near

him or on another individual near him, test ifie d that he did not detect any pepper spray

on Champion during the course of the ambulance ride

. Howeve r, f

ive different lay

witnesses testified that the Officers continued to sit or otherwise put pressure on Champion’s back while he was prone on the gro und with his face towards the carpet. J .A. at 156 (Ballenger Test.) (recalling that the Officers were ly

ing on to p of Champion); J.A. at 158 ( Buford Test.) (“They were lay ing on him, like how wrestlers do in the ring, they were just all — upper body

was on him, all their strength was on h im.”); J.A. at 228 (Jamerson Test.); (“I saw thre e officers on top of him.”); J.A. at 230-31 (Martinez Test.) (“They were holding him down, laying on top of him after he was already down . . . . [T ]h ey
are on top of him and

with their elbows, and

basically lay

ing

on top of him.”); J.A. at 265 (Simpson Test.) (“I believe there

w as another officer with his knee in the middle of his ba c k

. . . .”). Additionally, these witnesse s testified that the Officers continued

to use pepper

spray on Champion afte

r he

was subdued on the ground and had st opped resis ting. J.A. at 156 (Ballenger Test.) (“ [Champion] turned his head to move and breathe . . . and the female officer mace d him.”); J.A. at 229 (Jam erson Test. ) (tes tifying tha t Miller sprayed Champion twice and that Champion subsequently turne d white); J.A. at 231-32 (Martinez Test.) (“Well, he was on the ground already and [Miller] maced him again after h e was already han dcuff

ed.”); J.A. at 265 (Simpson Test.) (“He turned his face to bre athe a nd then he got spray ed again.”). 8 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

All of these witnesses stated that they did not see Champion struggle during

this time. T

here we re some inconsiste

ncies, however, in the witnesse s’ storie s, partic ularly with regar d to the length o f time that various activities regarding Champion went o n and the n

umber of Office rs who we

re ly ing on him after they brought him to the ground.
B. Procedural History

Plaintiffs f

iled their action on June 15, 2000. The complaint featured several differe

nt claims against an array

of defenda nts, but most of the claims were dismissed, leaving

on ly: 1) neg ligenc e claimsagainst Outlook and Delelys; and 2) § 1983 claims against the three Officers premised upon violat ions of Champion’s rights under the Fourth Amendm ent (excessive force)

and Four

teenth Amendment ( failure to render medical assistance). F ollow ing discovery , the government defenda

nts f iled a moti on for sum

mary judgmen t, alleging for the first time th at qualified immunity insulated the Officers from liability . The district co urt ruledthat the Officers were not entitled to qual ified immunity and denied the Officers’ motion for summary judgmen t. The Of ficers d id not ap peal t his ru ling.

The parties prepared for trial. On July 31, 2002, the Officers filed

a motion in limine objecting to the inclusionof the testimony of the Plaintiffs’ three experts, Michael F. Dorsey (“ Do rs ey” ), Kris Sperry (“ Sperry”) , and Geoffrey Alpert (“Alpert”). The district court denied the motion i n pa rt , p er mi tt in g S pe rr y an d A lp er t t o t es ti fy.

The trial began on Augus t 20, 2002. The jury hea rd contradictory

testimony from

the Officers, the witnesses, and several experts regarding the amount of force exerted

agains t Champion, Champion’s cause of death, and the level of pain and suffering Champion might have endured. Before the jury retired, the Officers filed a motion for a judgment as a matter of law, w hich wa s denied. The jury r eturned a verdict onNo. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 9

August 29, 2002. It found Outlook and Delelys liable in the amount of $3.5 mil lio n fo r their ne glige nce. The jury also found each police of ficer li able to th e Plaintif

fs in the amount of $300,000 each.

The Officers filed a combined po st-verdict motion, renewing their motion for a judgment as a matter of law, or in the alternative, seeking a new trial or r emittitur. The Officers based their renewed motion for judgment as a matter of law

on qualified immunity. J.A. at 123. The district court denied the Officers’ motion on November 21, 2002, ruling that “[b]asedon the facts a

t trial, taken in t

he light most favo rable to the Plainti ff, the o fficers’ conduc t v iola ted the Plaintiff’s constitutional right

not to be subjected to excessive force and that right wa s clear

ly e stabli s hed at the

time of the

office rs’ conduct.” J.A. at 127-28 (Dist. Ct. Or. 11/ 21/02). The districtcourt also ruled

that the $ 300,000 ve

rdicts against the Officers were not excessive.

The Office

rs timely appealed several of the

district court’s rulings
, including : 1) the order deny ing in part the motion for summary judgme

nt; 2) the districtcourt’s ruling on Alpert’s te st im on y; and 3) the denial of the Officers’ motion for judgment as a matte

r of law, or in the a

lt ernative a new trial and/or remittitur.

II. ANALY SIS

A. Standards of Review

We evaluat

e the dec isio ns of the dist rict c ourt t hrough several different lens es. T he Offic ers ask u s to revie w both the d enial of their motion for summary judg ment and the denia l of their motion for a judgment as a matter of law
, whichwa s i ni ti al ly filed before the jury retired pursuant to FederalRule of Civil Procedure 50(a) and was renewed af ter the return of the jury ’s verdict pursua nt to Ru le 50(b). See Fed. R. Civ. P. 50(a)-(b). All of these motions concerned the 10 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

Office rs’ alleged qualified immuni ty f rom li abili

ty . “[I ]n

cases where an appellant made a Rule 56 motion for summary judgment that was denied, makes thos e same arguments in a Rule 50(a) motio n at the c lose of e vidence that was a

lso denied, lost

infront of

a jury , then re

newed its argume nts in a rejected Rule 50(b) motion after the entry of judg ment, we will review only

the denia l of the Rul e 50(b) moti on.” K & T Enters., Inc. v. Zurich Ins. Co. , 97 F.3d 171, 174 (6th Cir. 1996). “[R]eviewi

ng a Rule 50 deter mination is

prefer able to reviewing a summary judgme

nt decision because the Rule 50 decisionis based onthe c omplete trial record and not the incomplete pretrial record available at summary judgment.” Id. (quotation omitted).
Thus, w e review de novo the denial of the Rule 50(b) motion, but our de novo review is narrowed by the test fo r
e valuat ing a renewed Rule 50(b) motion. Garrison v. Cassens Transp. Co. , 33 4 F.3d 528, 537 (6th Cir. 2003); Mon day v. Oullette , 118 F.3d 1099, 1101 (6th Cir. 1997). The Supreme Court has held,
[I]n enterta ining a motion for

judgmen t as a matter of law, the court should review all of the evidence in th e record.

Indoing so, howeve r, the court mus t draw al l

reasona ble in fe re nc es in fa vo r o f t he no nm ov in g p ar ty, and it may not make c

redibilit y determ inati ons or weigh the evidence. . . . [A]lthough the court should review the record as a whol e, it must d isregar d all evidence favora ble to the moving party tha t the jury is not required to believe . That is, the cour t should g ive cre dence to

the evidence favoring the nonmovan t as we ll as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the exte nt that that evidence comes fr om disinter

ested wit nesses.No. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 11

Reeves v. Sanderson Plumbing Prods., Inc. , 530 U .S. 133, 150-51 (2000 ) (citations and quotations omitted). “The motion should be granted, and the district court reversed, only if reasonable minds could not come to a conclusion other than

one favoring the movant.” Garrison , 334 F.3d at 537-38 (quotation omitted).

Our review is further complicated by the un derl ying qualified immunity question. The issue of “whether qualified immunity is applicable to an

official’s actions is a question of law.” Dickerson v. McClellan , 101 F.3d 1151, 1157 (6th Cir. 1996). “However , whe re the legal question of qualified immunity turns upon which version of the facts one accept s, the jury , not the ju

dge, mu st determine liability.” Pouillon v. City of Owosso , 206 F.3d 711, 715 (6th Cir. 2000) (quotation and ellipses omitted). Thus, to the extent tha t ther e is disagreement

about the facts, such as whether theOfficers put their body weig

hton Champio n and pep

per-spr ay ed him after he was handcuffed

and hobbled, we must review the evidence inthe ligh

t most favorable to

the Plainti ffs, tak

in g all inferences in their favor. We cannot wei gh the e vidence or make credibi lity

assessm ents, a nd we are acutely aware that

a jury, f aced directly with the tasks we c annot undertake, believe d the evid

ence pr esented by t he Plaintif

fs.

We employ a diffe

rent method of review for the two other issues r aised on appeal by the Officers. We review for a n abuseof discretion the district court’s denial of the Of ficers’ post-trial motion for

a new tri al and/o r re mittitur filed pursuant to Federal Rule of Civil Procedure 59. Gregor y v. She lbyCounty , 220 F .3d 43 3, 443 (6th C ir. 20 00). We als o review for an abuse of discretion the district court’s decision to allow Geoffrey

Alper t ’s expert testimony. Pride v. BIC Corp. , 218 F.3d 566, 575 (6th Cir. 2000). 12 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

B. Qualified Immunity

Inactions involving the alleged abuse of g overnment power, the defense of qualified immunity accommodates the tension between permitting litigants to recov er d amage s, whichis often “

the only reali stic ave nue for vindication of constitutional guarantees,” Harlow v. F itzgerald , 457 U.S. 800, 814 (1982 ), and the “social costs” of

such suits
, including “the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of pu bli c office.” Id. Qualified immunity provide s “t hat government officials performing discretionary

function s gene

rally are shie lded fro m liability for civil damages insofar as their cond uct does n ot violate clearly established statutory

or consti tutional r ights of which

a reasonable person would have know n.” I d. at 81 8. We employ a three-step inquiry

for determining whether qualified immunity is proper:

First
, we determine whether, based up on the app licable law, the fac ts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. S

econd , we consider whether the violation involved a c learly esta

blished constitutional right of whicha reasona ble pers on would

have known. Third, we determine whether the plaintiff has offered suff i cient evidence to indicate that what the offi cial alle gedly did

was objectiv ely

unreasonable in l ight of t he clea rly established consti

tutional r ights.

Feathers v. Aey , 319 F.3d

843, 848 (6th Cir. 2003) (emphas is added) (quotation omitted). If theansw er to all three questions is “yes,” qualified immunity is not proper.

1. The Occurrence of a Constitutional Violation
First, we consider

whether the facts, when taken in the light most favorable to the Plaintiffs, demons tr ate the occurrenceNo. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 13

of a constitutional violation. See Sauc ier v. Katz , 53 3 U.S

. 194, 201 (2001) (“Taken in the light most fav orable t o the party a sserting

the injury

, do the fa

cts alleg ed show th e officer’s conduct violated a constitutional right? This must be the initial inquir

y.”). This is a threshold que stion that often requires the settin

g forth of lega l princip les “wh ich will becom e the basis for a holding that a right is clear l y established.” Id. “ [A]ll claims that law enforcement officers have used exce ssive for

ce — dea dly or not — in the cou rse of

anarrest, investigatory

stop, or other

‘seizure’ of a free citizen should be anal yz e d under the Fourth Amendmen

t and its ‘reasonablene ss’ standard.” Graham v. Connor , 490 U.S. 386, 395 (1989). The test’s “proper app licat ion requires careful attention to the facts and circumstances of eac h particular case, in clu di ng the severity

of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers orothers, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. To take the facts in a light most fav orable to Plaintif fs is to assume that the Officers lay on top of Cha

mpion, a me

ntally retarded individua

l who had s topped re sisting a rrest a nd posed no fligh t risk, and spray

ed him with

pepper spray eve n after he was immobilized by handcuffs a nd a hobbling device. The use of such force is not objectively reasonable, as the Officers conceded at oral argume ntfo r the purposes of focusing on the question of whether Champion’s right to be free from thisparticular type of force was clearly

established.
2. A “Clearly Established” Right?

The firs t Feathers inquiry bleeds in to the second question of whe ther the constitutional right was clearly established, whichis the focus of the parties on appeal. “If the law at that time was not

cl ea rl y e stablished, an official could not . . . fairly be said to ‘k now’ that the law forbade conduct not previous ly

identified as unlawful.” Harlow , 457 U.S. at 818. “[T]he right the official is alleged to have violate d must have been ‘clearly established’ in a

more particularized, and

hence 14 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

more relevant, sense: The contours of the r ightmust be sufficie ntly clear that a reasonable officia l would understand that what h e is do ing violates that right.” Anderson v. Creighton
, 483 U.S. 635, 640 (1987). Officials do not enjoy quali fied immunity

simply because the exact

action in question has not previously been held unlawful by a c ourt, but “in the light of pre-e xisting law the unlawfulness must be apparent.” Id. I n the e xces s-for ce cont ext, it is not en ough for a plaintiff to demonstrate that an officer’s use of forc e exceeded the objective standard of reasonableness articulated in Graham

. Saucier , 533 U.S. at 201-202 (2001). Rather, qualified immunity is pr op er unless “it would be clear to a

reasona ble officer” that

his use of excessive force “was unlawful in the situation he confronted.” Id. at 202.

The Supreme Court has refused to require that a plaintiff demonstr ate the existence of

a “fundamentally similar” or “materi ally

similar” case. Hope v. Pelzer , 536 U.S. 730, 741 (2002). The re can be “notable factual distinctions between the precedents re lied on . . . so long as the prior decisions g[i]ve reasonable warning that the con duct then at issue violated constitutional rights.” Id. at 740 (quotation omitted). “[O]ffici als can still be on notice that their conduct violates established

law even in novel factual circumstances.” Id. a t 741. Moreover, the fact that various courts have “not

agreed

on one verb al formulation of the controlling standard” does notby itself entitle an officer to qualified immunity

. Saucier
, 533 U.S. at 203.

To demonstr

ate that t he Offic ers unre aso n ably violated a clearly established righ t, the Plaintiffs must therefore show the prior articul ation of a prohibition against the ty pe of

excess force exerted here. “I n inquiring wh ether

a constituti onal right is c learly established, we mu st look first to decisi ons of the Supre me Court, t

hen to dec isions of th

is

co urt an d o th er co ur ts wi th in ou r c ir cu it , a nd fi na ll y t o decisions of other circuits.” Higgason v. Stephens
, 288 F.3d 868, 876 (6th

Cir. 2002) . “[A]n act

ion’s unla wfulness can beNo. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 15

apparent fr o m direct holdings, from specific examples described as prohibited, or from the gene ral reasoning that

a court employs.” Feathers , 319 F.3d a t 848. Other sources

can also demonstrate the existence of a clearly established constitutional right; in Hope
, the Supreme Court considered Alabama state regulations and communications between the U.S. Department of Justic e and the Ala bama De partment of Corrections as evidence that the corporal punishment at issue in Hope was clearly

proscribed. Hope , 536 U.S. at 744-45.

Our caselaw and the evidence pre sented at trial about the training that the Officers received demonstr ate that the force exerted against Champion viol atedhis clearly e stablished Fourth A mendment rights. We have repeatedly stated that “the right to

be free from exce ssive for

ce is a c learly established

Fourth A

mendment

right. ” Neague v. Cynkar
, 258 F.3d 504, 507 (6th Cir. 2001) (decide d af ter Saucier). For example, we have ar

ticulate d a clea

rly established righ

t to be free fro m s pecific type s of non-deadly e xcessive force, such as handcuffing an individual to o t ig ht ly. See Walton v. City of Southfield

, 995 F.2d 1331, 1342(6th

Cir. 1 993) . We have also consistently held that various ty pes of force applied after the subduing of a suspect are u nreaso nable and a viol ation of a clearly

established right. See, e.g.
, Phe lps v

. Coy
, 286 F.3d 2 95, 301 (6 th Cir. 2002 ) (“[T]her e was simp ly

no gover nmental in

terest in continuing to beat Phelps after he had been ne utraliz e d, nor could a reasonable officer ha ve thought there was.”) ; McDow ell v. Rog ers , 863 F.2d 1302, 1307 (6th Cir. 1 988) (“[A ] totally gratui tous blo w with a policeman’s nightstic

k may cross the constituti onal li ne.”) ; Lewis v. Downs , 774 F.2d 711, 715 (6th Cir. 1985) (“The unprovoked

and unnecessary

striking of

a handcuffed citizen in the mouth with a nightstick is clearly e xcessive.”).

The particu

lar ty pe of phy

sical force exerted a

gainst Champion w as unr easonable, and the Officers should have been aware that they were

violating Champion’ s rights . First, it is clear ly established that the Officers’ use of pepper spray 16 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

against Champion after he washandcuffed and hobbled was excessive. In Adams v. Metiva
, 31 F.3d 375 (6th Cir. 1994),

a plaintiff was spray

ed with mace by

authorities. Id. at 378. The police then handcuffed the plaintiff, plac ed him in his car, and according

to th e plaintif

f and two

witnesse s, continued to spray mace in the plaintiff’s face even though he

was already

blinded and incapacitated. Id. We held tha t this

use of forc e was exc essive, a nd we den

ied the of

fic er s qual ified immunity because “[a] reasona ble person woul d know that spraying

mace on a blinded and incapacitated person . . . would violate the right to be free from excessive force.” Id. at 387; see also Vinyard v. Wilson , 311 F.3d 1340, 1348 (11th Cir. 2002) (“ Courts hav e consist ently con cluded that using pe pper spr ay is excessiv e force

incases where

. . . the arreste e surre

nders, is se cu re d, an d i s n ot ac ti ng vi ol en tl y, and there is no threat to the officers or any one else.”).

Inaddition to prior pre cedent , the Officers’ training demonstr ates that they

were a ware of Champion’ s clear

ly established

right to be freefromthis type of excessive forc e. The Officers were taught

that pepper

spraying a suspect after the individual was incapacitated constitutes excessive force. Ser geant R obert Allen, who testified about the training the Nashville Police Of

ficers r eceive d, agr

eed th at if

Champion

w ere handcuffed and hobbled, spray ing him with pepper spray would be e

xcessive.
Second, it also clearl y e st ablished that putting substantial

or signific ant pres sure on a

suspect’ s back wh

ile that suspect is in a face-down prone position after being subdue d and/o r incapacitated

consti tute s excessive force. This appeal gives

us no cause to consider whether le aving a bound suspect on his orher stomach without more constitutes excessive force that violates a suspect’s clearly establishe d Fou rth Amendment

rights. This is nei

ther a “ positio nal asphyxia”

casenor a ca se in which the officers lightly touched or

placed incidental pressure on C hampion’s back while he was face down. T he as phyxia was caused by the combination of theNo. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 17

2 The Officers c ite several cases that purportedly show that the app lication o f pressu re to a susp ect’s ba ck wh ile he or she is l ying prone is not a c learly esta bli shed co nst itutional v iolation

. See Wagner v . Bay City
, 227 F.3d 316 , 323 -24 (5 th Cir . 2000); Estat e of Phi ll ips v. Ci ty of Milwaukee
, 123 F.3d 586 , 594 (7th Cir. 1997); Co ttrell v. Ca ldwe ll , 85 F.3d 1480, 1488, 14 91, 1492 (11th Cir. 1996). However, al l th ree cases

are inappo site because they invo lve an arrestee who se positi onal asph yxia

was cause d sole ly as a resu lt of the off icers leavi ng the arre ste e on hi s or her stomach, but wit

hout applying pressure t o the back. Because we are not confront ed withsuch a situat ion, we need not deci de whether such beh avior violates a clear ly establish ed righ t. Officers placing

their weight upon Champion’s body by lying

acrosshis back and simultaneously pe pp er spra yin g him. 2 Creating asphy

xiating c onditio n s by putting substantial or significant

pressur e, suc h as body weig ht, on the back of an incapacitated

and bound suspect con st itutes obje ctively

unreasonableexce ss ive force. For example, in Simpson v. Hines
, 903 F.2d 400 (5 th Cir. 1990), several police officers entered an inmate ’s cell, placed

the inmate in a neckhold, and putstrong pressure upon his chest. Id. at 40 3. The inma te died as a result, and a phy sician’s report sugges te d that the inmatemay have die d as a result of the pressure placed upon his chest. Id

. The Fifth Cir cuit deni ed qualif

ied immunit

y to the officer s, ruling that any reasonable officer would have kno wnthat the force exerted was excessive and t hu s constituti onally

defic ient. Id. Other district courts in our circuit have highlighted thedangers of putting pressure on a prone, bound, and agitated detainee. Swans v. City of Lansing
, 65 F. Supp. 2d 625, 633-34 (W.D. Mich. 1998) (jury awarded verdict to a menta

lly ill arrestee who was hog-tied); Johnson v. City of Ci

ncinnati , 39 F. Supp. 2d 1013, 1019-20 (S.D. Ohio 1999) (findingthat information existed in the law

en fo rc em en t c om mu ni ty, whichput officers on notice of the dangers of positional asphy xiation).

Ad di ti on al ly, the Officers’ training outlined the boundaries of excessive force and madeclear that lying on a suspect can 18 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

cause asphy xiation. All t

hree Of ficers a dmitted tha

t the y were aware of the potential dang er of putting pressure on an individual’s back or diaphragm. J.A. at 187 (Dickhaus Test.) (“I believe our training

was once he is under control we a

re to sit him up physically

. . . .”); J.A. at 262 (Miller Test.). J.A. at 305 (Woo d side Test.). Additionally, Serg eant Allen testified that he taug h t his officers that lying across an individual’s back whe

n that perso n is on his or her stomach increases the po ssibi lity

of asphy xia. Just as the

Supreme Co urt determined that th e Alaba ma Depa

rtment o f Corrections Regula

ti ons and the commu

nications between the U.S. Department

of Justice and the State of Alabama put the state on notice about wh at c onstituted cruel and unusual punishmen t, s o too here the training these Officer s received alerted them to the potential danger of this particular ty pe of excessive force. See Hope , 536 U.S. at 744-45.

It cannot be

forgot t en tha t the police were confronting an in dividua l whom they knew to be me ntally ill or retarded,

even though the Officers may

not have known the full extent of Champion’ s a

u tism and his unresponsiveness. The diminishedcapacity

of an unarmed

detainee must be taken into account when assessing the amount of force exerted. See Deorle v. Ruthe rford , 272 F.3d 1272, 1283 (9th Cir. 2001) (“[W]here it is or shou

ld be appa

rent to th e offi cers that the individual involved is e motionally disturbed, that is a factor that must be considered in determining . . . the rea sonableness of the force employed.”). F or example, in Drummond v. City of Anaheim , 343 F.3d 1052 (9th Cir. 2003), officers handcuffed

a m entally

ill individual and leaned their body weight onto his upper torso. Id. at 105 4. The officers then applied a hobble device. Dr

ummond fell into respiratory distressand eventually a

coma. Id. at 1055. Th e court h eld that the dis tri ct court’s grant of summary judgment on the basis of qual ifi ed immunity was not proper bec ause the officers had violated Drummond’s clearly established

rights. Id. at 1062. It stated, “

Any reasonable off

icer should have knownthat such co nduct c onstituted the use of excessiveNo. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 19

force.” Id. at 1061. Drummond postdated the events that led to Champion’ s death, b

ut it relie s on case s d eci ded before April30, 20 00 (in cludi ng the Swa ns case) and notes that when office rs r ecei ve training explaining the dangers of asphyxia, they are

on notice th at applying pressure to an arrestee’s back is objectively unreasonable.

Co ns eq ue nt ly, th e rig ht to be free from the two ty pes of

e x cessive force e

xerted ag ainst Cham

pion was c learly established

by the law of this circuit and by the training of the Office rs. Either action by

itself violated a

clearly e stablished right, andthe combination of the actions bolsters the conclusionthat n o reasonable officer could believe tha t excessive force w as not bei n g u sed. We recognize that the Off icers p erhaps did not intend to harm Champion; indeed, they may have be lieved they we re helping him. Such a consideration

is immaterial, however, because the qua lified immunity doctrine is an objective one; mot ive is irrele vant. The evidence pre sente d in the lig ht most favorable t

o Champion, and in the light accepted by

the jury, demonstrates that the Officers unreasonably applied excess ive forc e to Champion after he had been inc apac itated in violation of Champion’s clearly e stablished rights. No reasonable officer would have continued to spray

a chemical agent

in the face of

a handcuffed and hobbled mentally retarded arrestee, wh o
was moving hi s or her head from side to side in a n attempt t

o breathe, after t he arrestee vomited several times. No

reaso nable o fficer would continue to put pressure on that arrestee’s ba ck afte r the ar restee was subdu

ed by handcuf fs,

anankle restraint, and a policeofficer holding the arrestee’s legs.

The Officer s concentrate their efforts on the evidenc e presented at tr ia l t ha t C ha mp io n m ay h ave died from a preexisting medical conditionunre lated to his treatment by the police a

nd that the

pepper s pray was unlike ly to

contribu te to Champ ion’s vomi ting or his death. In particular, the Defend ants’ medic al e xpert, Dr. Wetli, testified that 20 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

Champion’s injuries were inc onsistent w ith a death caused by Officers lying ac

ross Champion’s back. J.A. at 284-86 (Wetli Test.). This evidence is unavailing for two reasons. First, the Plaintiffs presented contradictory ev i dence, and the jury believed the Plain tiffs’ exper

ts (and the witnesses who viewed the Officers ly

ing on Champion’s back) more t h an the Defe ndant s’ witnesses. Second, the Officers’ arg ument sidesteps the point: even if Champion had not died, but had only been inju red, his c learly

established rights were no less violated.
3. Sufficiency of Evidence

Fi na ll y, the panel must determine “whether the p laint iff offered suffici en t evidence to indicate that what the official allege dly did was objectively unre asonab le in light of the clearly established

constitutional rights.” Feathers , 319 F.3d at 848. As descr

ibed in de tail above, the Plaintiffs presented suchevidenc e at tria

l. The fa ct that a j ury

found in his favor further underscores the sufficienc y of the evidenc e.

4. Conclusion

Insum, all three Feathers inquiries have be en answe red in the affirmative. We therefore affirm the district court’s denial of qualif ied immunit

y to the Offi cers.

C. The Ver dict Am ount

The Officers contend that they are entitled to a new trial, or at least a remittitur, becau se the jury award of $900,000 ($30 0 ,000 per Officer), which only compensates for Champion’s phy sical and menta l pain and

suffer ing, is excessive. In essence, the Officers suggest that “a cumulative

ver dict of $900,000 against the Officers for a t most a 17- minute period of physica l and mental pain and suffer in g is excessive.” Def. Br. at 38. Because the Officer s ask us to undertake a

Sissiphyean task of comparing Champion’ s painNo. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 21

and suffer ing to other forms of pa

inand suff

ering a nd beca use the award do e s not shock the conscience, we hold that the districtcourt did not abuse i ts d iscretion in denying the Officers’ motion.

We undertake a highly

deferential revi ew of the district court, whic h itse lf is shar ply limited in it s ability

to remit a jury verdict . “[A] jury

verdict should not b e remit

ted by a court unless it is

beyond the maximum damage s that the jury

reasona bly could find

to be compensatory

for a party ’s loss.” Gregory v. Shelby County , 220 F.3d

433, 443 (6th Cir. 2000) (quotationomitted). Our remittitur standar d favors maintaining the award, “[u]nless the award is (1) beyond

the range supportable by proof or (2) so exc essive a s to shock the conscience, . . . or (3) the result of a mistake.” Bic k el v. Korean Air Lines Co. , 96 F.3d 15 1, 156 (6th Cir. 1996) (quotationomitted) “

A trial c ourt is with

in its d iscretion in remitting a verdict only whe n, after r eviewing all evide nce in the light most favorable to the award ee, it is convinced that the verdict is clearly

excessive, resulted

from passion, bias or prejudice; or is so excessive or inadequa te as to shock the judicial conscience of

the court.” Gregory
, 220 F.3d at 443.

The Off icers attempt to prove that the award shocked t h e conscience in two ways. First, they suggest that the medical evidence is insufficient to support a $900,000 award. Citing the testimony

of both sid

es’ medic al experts , the Off ic er s charge that Champion suffered only supe rficial abrasions and hemor rhagin g, which would not have caus ed se vere pain. Ad di ti on al ly, the exper

ts portray Champion’s death as being relative ly peaceful by

showing that any of the

three po tential, and possibly cumulative, causes of Cha mpion’s death — positional asphyxia, as p hyxia resulting

from ga stric aspiration, or cardi a c arrest prompted by Champion’s angulated ri gh t c or on ar y ar te ry — would not have been particu larly painful. 22 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

However, other t esti mony averr ed that Champion may have suffered phy sical pa

in. First , Plaintif

fs’ expert Dr. Gerber lo cated a contusion on Champion’s lung that may have resulted from pre ss u re applied by the Officers. Second, the autopsy reveal ed evide

nce of “ extensive

aspirati on of ga stric conten ts,” J.A. at 270 (Sperry Test.), which ma y have signaled that Champ ion was choking o n his o wn vomit. Third, Dr. Gerber agre ed that “someone suff eri ng from posit ional asphy

xia would be

gasping for bre ath,” wh

ic h generates psychic pain stemming from anxiety and fear . J.A. at 221 (Gerber Test.).

T he jury hear

d inconsistent evidence attesting to the l eve l of Champion’s pain. We do not attempt to measure it anew. No one but Champion can ever know the full amount of physical and menta

l pain and suffer ing exper ienced d uring hi s sevente en-minute

ordeal, b ut th e jury hea rd various and conflicting pie ce s of evidence and believed that Champion suffered. Their ve

rdic t does n ot lack a

n evident iary basis, particu larly given that the verdict encompassed no t only physical pain, but also mental pain and suff ering. The pani c of being u nable tobre athe and the pressure limiting one’s breath cannot be discounted. See J.A. at 224-25 (Gerber Test .) (st ating that from a phy siological standpoint, an individual during asphy

xiation would feel “fear, agitation and struggle; air hunger

is somethin

g that c auses fe ar”). Si

mply put, there is evidence sufficient to support the jury ’s awar d suchthat the district court did not err in denying

the motion to remit th e judgme

nt.
Second, the Officers cite to several case s in whi ch decede nts received smaller awards for wha t the Officers

c onstrue as greater pain and suffe ring than that endured by Champion. Endeavoring tocomp are awards is difficult and often unfruitf ul, beca use the factual circumstances of each

casediffer so widely

and because it places reviewi ng cour ts inthe position of making awkward assessmen ts of pain and suffering better le ft to a

jury. Layne v. Wal-Mart Stores, Inc.
,No. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 23

No. 00-5607, 2001 WL 1480736, a t * 4 (6th Cir. No v. 19, 2001) (“[C]omparable decisions are ‘instructive’ but ‘not contr olli ng’ when we

revie w for abuses of discretion.”); Thompson v. Nat’l R.R. Passenger Corp. , 621 F.2d 814, 827 (6th Cir. 1980) (“[C]ases involving similar injuries are in no

sensecontrolling.”). The Defendants cite se veral cases that they believe de

monstrate the unconscionability of the award giv en the relat ively bri ef peri od of h is pai n and s ufferi ng. Compare Gregory
, 220 F.3d at 433-44 ($778,000 award not remitted when decedent was beat en horr ibly by a fellow prisoner and lay in his cell for te n hours before being discovered); Tatum v. Land
, No. 95-6378, 1997 WL 85144, at *5 (6th Cir. Feb. 26, 1997) ($600,000 award not remitted when decedent suffered severe injuries to shoulder, p e lvis, and face as a result of a car

accide nt and who survived for five hours af

ter the a ccident ); with Sharpe v. Cit

y of Lewisburg
, 677 F. Supp. 1362, 1365 (M.D. Tenn. 1988) ($100,000 award f

or pain a

nd suffe rin g redu ced after decedent was shot eight times and died within minutes of the shooting.). The plain

tif fs respond by

citing o ur decis ion in B ickel
, when we affirmed the district court’s denial of remittitur for several pain and suffering a wards exceeding $1 million when the decedents, passenger s on a Korea-bound plane attacke d by

the Soviet Union, “remained conscious during the twelv e mi nut e descent into the Sea of Japan, suffering the physical ef

fects of decompression and recompression

along the way , as well as the horror of knowing that death was imminent.” Bickel , 96 F.3d at 155.

The Officers ask us to make an impossible compari son between Champion’s pain and

the pain of others. We cannot ascertain whether Champion’s mental and physical pain and suffer ing, magnified by

his likel y ina

bility to comprehend what was happening, equaled the pain and su ffering of the

a irplane passeng ers plumme ting out o f the sky

for twel v e minutes in Bickel

or t he t en hours of slow death endured by th e deced ent in Gregory . Such com parisons are impo ssible and improper , becau se one ca

nnot so mec

hanistic ally measur e 24 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

pai n an d su ffe rin g. In Bickel , we wrot e: “I t is impossib le to determine the exact value of the pain and suffering which the decede nts may have endured. . . . One simp ly cannot quantify the mental and physical

pain and suffering such

an experience would cause, and thus we cannot conclude that the evide nce does not support the awards.” Id. at 156. The award granted here by the

jury, which was c apable of judging credibility

and actually hea rd live testimony reg arding the incident as opposed to the written record before us, is not unreasonable, excessive, or consc ience- sh ockin g. We there fore hold that the districtcourt did n ot a

buse its discretion in denying the Officers’ motion for remittitur.
D. Alpert ’s Testim ony

Fi na ll y, we evaluate the Officers’ c laim that the district court erred in per

mitt ing Alpert’s expert testimony. The Supreme Court in Daubert

v. Merrell Dow Pharmac euticals, I nc. , 509 U.S. 579 (1993), established the standard f o r admissibil ity

of scientific expert tes timon y under F ederal Rule of Evidence 702. The requir ement tha t “any and all scientif ic testimony or ev idenc e admitte d [be] not only

r elevant
, but reliable,” Id. at 589, “entails a prel iminar y assessment

of whether the reasoning or met hodol ogy underlying

the testimony is scientifically valid and of whether that reason ing or m ethod ology properly c an be applied to the facts in issue.” Id. at 592-93. This test has also been applied to non-sc ientific

expert tes timony , such as A lpert’s. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 149 (1999).

The Office

rs arg ue that Al

pert did not pr esent any specialized

knowledg e that wa s reliabl e or of a ny a ssis t ance to the jury. The Of

fice r s rely principally

on Berry v. City of Detroit , 25 F.3d 1342 (6th Cir. 1994), inwhich we held that the plaintiff’s expert, a so-called spec ialist in the field of “police policies an d pr actices” was not qualified to speak about the city g overnment’s policy of disciplining officers for alleged uses of excessive force. Id. at 1348-54. In Berry , weNo. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 25

stated that “there is no such ‘field’ as ‘police policies and practices,’” ma in ly b ecause we believed that the concept of sucha field as presen ted by that “expert” wa s far too broad. Id. at 1352. We an alog ized to the legal profession, stating that labeling the individual in Berry as an expe rt when h e did notdemonstrate that he had experience in any par tic ular aspect of studying

the police was “like declaring anattorney

anexpert in the ‘law.’” Id. Howeve r, by reasoni ng that a divorce lawyer was no more an expert on patent law tha n any one e lse, we im

plicitly recog nized that i

ndividual s with specialized

knowl edge could most certainly ser ve as experts, i.e., patent lawye

rs can serv e as expert s in pa

tent l aw. We

did nothold that a

n individua

l can not ever testify a s an expert about som e aspe ct of polic e affa irs. Rathe

r, the hol ding in Berry reasoned

that unqualified individuals could not broadly testify about an area in which they possessed no specialized knowledge. While “police practices” in the broadest sense of the phra se may

not be a f

ield, sur ely criminolo gy

is.
Indeed, the chief reason for our decision in Berry was that the expert’s credentials demonstrated that he had no spe cific expertise about police activities. He had limited experience, given t hat he was appointed as a deputy sheriff, a post that required almost no q

ualifica tions, and he had been

fired twice fromthe position. Furthermore, he lacked any formal training

or experience on the subject of criminology or police a ctions. Compounding the problem was his ungrounde d and methodolo gicall

y flawed testimony

regarding what effect the City of Detroit’s procedural shortcomings would h a ve upon the future conduct of 5,000 police officers who would b e confronted

with a diverse and unpredict able array of situations inwhich force would be used. See Dickerson , 101 F.3d at 1163-64 (rely

ing on the a ffidavi t of a cr imin ology professor, which opined that an officer used excessive force
, in de ciding t

hat mater

ial fact issues re

mained r egard in g qualified immunity); Estate of Boncher v. Brown Co unty , 272 F.3d 484, 486 ( 7th Cir. 200 1) (rec ognizing implicitly

the field of cr im in ol og y by l abeling the exper

t a reput

able 26 Champion et al. v. Outlook Nashville , Inc. et al. No. 03-5068

criminolo gist, but excludi ng exper t’s affi davit as u seless because it was too general).
By contras t, the Plainti ffs’ expe rt, Alper t, testifie d about a discrete aspect of police practices, namely use o f exc essive f orce, based upon his particularized knowledge about the area

. Incontras t to the expert in Berry , Alpert’s credentials are much more exten sive and s ubstantia l. Alpert has a PhD i

n socio logy fromWashingtonState University, is employ ed by the Universi

ty o f South Carolina’s Department of Cr im in ol og y, teaches classes on police procedure s and practic es, has been involved with federal researc h funded by the Department of Justice that evaluates the use of force by office rs, trains officers in the use of force, works with police departm en ts to create use-of-force policie s, has testified before Congre ss and sta

te legi slatures

a bou t police p olicies, and has authored for

ty to fifty articles on the

subject of police procedu res, many of which have appeared in peer -reviewed journals

. Alpert Test., Transcript Vol III at 428-32 (Attached to Motion to Ta

ke Judicia

l Notice) . Unlike the expert in Berry , Alpert testified about much more specific issues: the continuum of

fo rc e e mp lo yed by o ff ic er s g en er al ly, the specific traini ng t he Officers received, and A lpert’s opinion that if the witnesses’ testimony is cre dited, the Office rs’ actions violated nationally rec ognized police standards governing e x cessive force. The critical diffe rence between t estifying about the impact of police policies upon a larg e group of officers and testify ing abou t the proper actions of individual of

ficer s in one discrete situation highlights the in appli cability

of Berry . Courts ha

ve permi tted exper

ts to testify about discrete police-practice iss ues when those experts a re p roperly

creden tialed an d their te stimony

assists the trier of

fact. See Dickerson , 101 F.3d at 1163-64; Kladis

v. Bre zek , 82 3 F.2d 101 4, 1019 (7 th Cir. 1987 ). Bec ause Alper thad considerable experience in the field of cr iminolog y and because he was tes tifying conc erning a discrete area of police practices about wh ich he had specialized knowledge,No. 03-5068 Champion et al. v. Outlook Nashville , Inc. et al. 27

we hold that the district court di d not abu se its con siderab le di sc re ti on in ad mi tt in g A lp er t’ s t es ti mo ny.

III. CONCL USION

We AFFIRM the rulings and judgment of the dis trict cou

rt. F irst
, the distri ct court

properl y de nied the O fficers’ Rule 50(b) motion for qualified im munity, because on a view of the facts in t

he light mo st favorable to the Plaintiffs, the Offi ce rs violated Champion’s clearly established right to be free from the specific ty pes of forces admini ster ed after Champion was subdu

ed and re strained . Second, th e dist rict court did not abuse its discretion in denying the Off icers’ motion to remit the size of the pain-and-suffering awa rd bec ause the award was supported by evidence and it did not shock the conscience. Third, the district c ourt did no t abuse its discreti on in

admitting Alpert’s testimony. We AFFIRM

.