11-3225 Stampf v. Trigg

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2
August Term, 2012 3 (Argued: September 19, 2012 Decided: July 30, 2014) 4

Docket No. 11-3225-cv 5

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X 6 MELISSA STAMPF, 7 Plaintiff-Appellee , 8

v. 9 THE LONG ISLAND RAILROAD COMPANY, METROPOLITAN TRANSPORTATION 10 AUTHORITY and JAMES SOKIRA, 11 Defendants, 12 ANGELA TRIGG, 13 Defendant-Appellant, 14
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X 15 Before: KATZMANN, Chief Judge , LEVAL, and LIVINGSTON, Circuit Judges

. 16 Defendant Angela Trigg appeals from the j udgment of the United States District Court 17 for the Eastern District of New York (Gold, M.J. ) awarding Plaintiff Melissa Stampf $480,000 in 18 compensatory and punitive damages on her claim of malicious prosecution and denying Trigg’s 19 motions for judgment as a matter of law, a new trial, and remittitur. The Court of Appeals 20 (Leval, J. ) concludes that the district court did noterr in denying Trigg’s motions for judgment 21 as a matter of law and for a new trial on liability. The Court also concludes that the jury’s award 22 of damages is excessive. The district court’s denial of Trigg’s motion seeking a new trial on 23 damages is REVERSED unless Stampf accepts a remittitur reducing her award. 24

111-3225 Stampf v. Trigg

PHILIP J. D INHOFER , Philip J. Dinhofer, LLC., 1 Rockville Centre, New York, for Plaintiff-Appellee

. 2
B RIAN KENNETH S ALTZ , for Catherine A. Rinaldi, 3 Vice President/General Counsel & Secretary, The 4 Long Island Rail Road Company, Jamaica, New 5 York, for Defendant-Appellant

. 6 LEVAL, Circuit Judge : 7 Defendant Angela Trigg appeals from the j udgment of the United States District Court 8 for the Eastern District of New York (Gold, M.J. ) awarding Plaintiff Melissa Stampf damages on 9 her claim of malicious prosecution. Trigg contendsthat the district court erred in denying her 10 motions (1) for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) and 50(b), (2) for a 11 new trial on all issues pursuant to Fed. R. Civ. P. 59, and (3) for a new trial on damages unless 12 Stampf accepts a remittitur reducing the amount of the judgment. 13 Stampf brought this suit in federal court against her coworker Trigg, their employer The 14 Long Island Rail Road (“LIRR”) and other defendants asserting violations of the Federal 15 Employers Liability Act (“FELA”) and 42 U.S.C. § 1983; state law claims of false arrest, 16 malicious prosecution, negligent and intentional infliction of emotional distress; and violations 17 of state and city human rights laws. With the exception of Stampf’s New York state law claim 18 for malicious prosecution against Trigg (the only claim that concerns us on this appeal) and her 19 discrimination claims against the LIRR, the district court granted summary judgment dismissing 20 all of Stampf’s claims. Upon trial, the jury found Trigg liable for malicious prosecution and 21 awarded Stampf damages of $200,000 for past mental and emotional suffering, $100,000 for 22 future mental and emotional suffering, $30,000 as compensation for out-of-pocket losses, and 23 $150,000 as punitive damages, totaling $480,000. 24

211-3225 Stampf v. Trigg

We affirm the district court’s denial of Trigg’s motions for judgment as a matter of law 1 and for a new trial on liability. However, we conclude that the jury’s award of damages exceeded 2 limits reasonably allowable in the district court’ s discretion. Accordingly, we reverse the district 3 court’s denial of Trigg’s motion seeking a new trial on damages unless Stampf accepts a 4 remittitur reducing the amount of the judgment. 5 BACKGROUND 6 I. Factual Background 7 Plaintiff Stampf and defendant Trigg were both employed for over ten years as 8 locomotive engineers by the LIRR at the time of the relevant incident. On July 10, 2006, Trigg 9 complained to a supervisor (and filed an internal report) of an assault on her by Stampf. Trigg 10 asserted that, on the previous day, while she was sitting in her car in the workplace parking lot 11 with another LIRR employee, Stampf “reache[d] in [to the car] and grab[bed Trigg’s] breast and 12 jiggle[d it].” Joint App’x (“JA”) at 1245, Stampf v. Long Island R.R. Co. , No. 11-3225 (2d Cir. 13 Nov. 2, 2011). Stampf has maintained that she squeezed Trigg’s shoulder, not her breast. 14 Three weeks later (on August 1, 2006), Trigg repeated the allegation in a voluntary 15 statement to the Metropolitan Transportation Authority police (the “MTA” police). She stated 16 that, on July 9, 2006, Stampf “reached her hand in my car window and grabbed my left breast 17 and shook it.” JA at 1221. On August 2, Trigg informed MTA Police Officer James Sokira that 18 she had filed a report against Stampf with the police. Officer Sokira reported this to his 19 supervisor, who directed him to arrest Stampf. That night, Officer Sokira arrested Stampf while 20 she was at work. In front of Trigg and other co -workers, Stampf was handcuffed and placed in a 21 police car. 22

311-3225 Stampf v. Trigg Shortly after the arrest, Trigg filed a second report with the MTA police stating that 1 Stampf “reache[d] in the window and grab[bed] myleft breast and [j]iggle[d]” and then, after a 2 brief argument about the incident, Stampf “reache[d] in the window again across my chest . . . .” 3
JA at 1240-41. Describing the night of Stampf’s arrest, Trigg’s second statement to the police 4 said that, “on August 2 . . . when [Stampf] showed up [at work,] I flagged down the MTA police 5 and made them aware of the case and asked them [to] arrest [Stampf] for the incident that 6 happened on July 9, 2006.” 1 JA at 1242. Trigg’s statement added, “I have decided to press 7 charges against Melissa Stampf.” JA at 1242. 8 Stampf was held in a locked cell for approximately four hours. She was then issued a 9 desk appearance ticket (“DAT”), which listed Forcible Touching as the offense charged, and 10 released. Stampf hired an attorney to handle the potential criminal charges. She testified that she 11 paid the attorney a $25,000 fee, which was financed by her father taking out a second mortgage, 12 on which she makes the payments. 13 No criminal complaint was ever filed against Stampf. On December 27, 2006, the New 14 York County District Attorney’s Office issued a declination of prosecution, explaining, 15 “Following a review of the evidence and interviews with several witnesses, including the 16 complaining witness, the People conclude that the case [cannot] be proven beyond a reasonable 17 doubt.” JA at 1061. 18 Meanwhile, in response to Trigg’s complaint to her supervisor, the LIRR conducted an 19 investigation in July and August 2006 and found that Stampf had violated its Anti-Harassment 20 Policy. Stampf provided a statement of facts to the LIRR in advance of its investigation and was 21

1 At trial, Trigg testified that she did not ask for Stampf to be arrested. JA at 574.

411-3225 Stampf v. Trigg given the opportunity to testify in her defense. Following the advice of her attorney, she declined 1 to testify because she might face criminal charges in which her statement could be used against 2 her. Stampf was assessed a twenty-day suspension without pay. On September 12, 2008, an 3 arbitration panel convened pursuant to the Railway Labor Act and affirmed the employer’s 4 determination that Stampf violated the Anti-Harassment Policy, but reduced the suspension to 5 ten days and awarded Stampf compensation for lost time. 6 DISCUSSION 7 On appeal, Trigg contends the malicious prosecution judgment against her was flawed in 8 numerous respects. First, she asserts that she cannot be liable for malicious prosecution as a 9 matter of law because (1) she did not initiate a criminal proceeding against Stampf; (2) even if 10 the issuance of a DAT constitutes the initiation of a criminal proceeding, the proceeding did not 11 terminate in Stampf’s favor; and (3) Stampf was collaterally estopped from claiming malicious 12 prosecution by the LIRR’s arbitration decision. Second, Trigg argues that she is entitled to a new 13 trial because the district court improperly (1) admitted evidence of her prior sexual behavior in 14 violation of Federal Rule of Evidence Rule 412; (2) denied her request to admit evidence of an 15 arbitration award; and (3) refused to admit the testimony of the assistant district attorney as to 16 whether a declination of prosecution indicates that a defendant is innocent. Third, she contends 17 she was entitled to an order of remittitur becauseof the excessiveness of the jury’s award. 18 I. The District Court Did Not Err in Denying Trigg’s Motions for Judgment as a Matter 19 of Law 20 We review the denial of motions for judgment as a matter of law de novo. Highland 21 Capital Mgmt. LP v. Schneider, 607 F.3d 322, 326 (2d Cir. 2010). Under Rule 50, a court may 22

511-3225 Stampf v. Trigg grant judgment as a matter of law against a party if “a reasonable jury would not have a legally 1 sufficient evidentiary basis to find for [that] party on that issue.” Fed. R. Civ. P. 50(a); Highland 2 Capital Mgmt. LP , 607 F.3d at 326. A court may set aside a jury’s verdict “only where there is 3 such a complete absence of evidence supporting the verdict that the jury’s findings could only 4 have been the result of sheer surmise and conjecture, or there is such an overwhelming amount 5 of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a 6 verdict against him.” Bucalo v. Shelter Island Union Free Sch. Dist. , 691 F.3d 119, 127-28 (2d 7 Cir. 2012) (internal quotation marks and citati on omitted). In reviewing a Rule 50 motion, we 8 “give deference to all credibility determinations and reasonable inferences of the jury, and may 9 not weigh the credibility of witnesses or otherwise consider the weight of the evidence.” Id. 10 (internal quotation marks and citation omitted). 11 “To establish a malicious prosecution claim under New York law, a plaintiff must prove 12 (1) the initiation or continuation of a criminal pro ceeding against plaintiff; (2) termination of the 13 proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and 14 (4) actual malice as a motivation for defendant’s actions.” Manganiello v. City of New York, 612 15 F.3d 149, 161 (2d Cir. 2010) (internal quotations marks and citations omitted); see Broughton v. 16
State , 37 N.Y.2d 451, 457 (1975)

. Trigg contends that Stampf failed to prove the first two 17 elements. 18

611-3225 Stampf v. Trigg a. Trigg Initiated a Criminal Proceeding Against Stampf 1 i. The Issuance of a DAT Initiates a Criminal Proceeding for the 2 Purposes of a Malicious Prosecution Claim 3 Trigg first argues Stampf failed to satisfy the essential elements of malicious prosecution 4 because the issuance of a DAT does not initiate a criminal proceeding, as required for such a 5 claim. While recognizing that the answer is not clearly established in New York law, we 6 disagree. 7
In Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, Local 10 , 605 F.2d 1228, 8 1249-50 (2d Cir. 1979), in the absence of controlling New York precedent, this court concluded 9 that a New York court “would rule that the issuance of [a Desk] Appearance Ticket commences 10 a prosecution for purposes of determining whether an action for malicious prosecution lies.” 11
Rosario , 605 F.2d at 1250. The Rosario court reasoned: 12 [When a DAT is issued,] the accused bears the inconvenience and expense of 13 appearing in court and, perhaps more important, is subject to the anxiety induced 14 by a pending criminal charge. Moreover, if others learn that charges have been 15 lodged against the accused, his character is no less traduced because the 16 accusation is contained in an Appearance Ticket rather than in a summons. 17
Id. 18 Trigg urges us to reject our holding in Rosario in light of the subsequent New York Civil 19 Court decision in McClellan v. New York City Transit Authority , 444 N.Y.S.2d 985 (Civ. Ct., 20 Kings Co. 1981). McClellanruled “that the issuance of a D.A.T. [by the police], without a 21 concomitant filing of an accusatory instrument, or other judicial intervention, is not the 22 commencement of a criminal action and cannot support a cause of action for malicious 23

711-3225 Stampf v. Trigg prosecution.” Id. at 986. The court noted its “respectful [] disagree[ment] with the United States 1 Court of Appeals for the Second Circuit.” Id. at 987 (citing Rosario , 605 F.2d 1228). 2 However, the Appellate Division, Fourth Department has explicitly declined to follow 3 McClellan and instead adopted Rosario ’s reasoning, holding that a DAT was sufficient to 4 support a claim of malicious prosecution. See Snead v. Aegis Sec., Inc. , 482 N.Y.S.2d 159, 160- 5 61 (4th Dep’t 1984). Likewise, in reversing the dismissal of a malicious prosecution claim, the 6 Third Department, citing Snead, treated the issuance of a DAT as constituting initiation of a 7 criminal proceeding. Allen v. Town of Colonie , 583 N.Y.S.2d 24, 26 (3d Dep’t 1992). 8 Trigg also relies on the Second Department’s ruling in Stile v. City of New York, 569 9 N.Y.S.2d 129 (2d Dep’t 1991), which dismissed a malicious prosecution claim on the ground 10 that “[s]uch a claim may arise only after an arraignment or indictment or some other evaluation 11 by a neutral body that the charges [were] warranted.” 569 N.Y.S.2d 129, 131 (2d Dep’t 1991) 12 (second alteration in original) (internal quotation marks and citations omitted). However, Stileis 13 not on point because the plaintiff in that case was not issued a DAT or any other command to 14 appear in court. 15 We recognize that several courts of first instance, following the language of Stile, have 16 ruled that a DAT does not initiate a criminal proceeding. See Puckowitz v. City of New York, No. 17 09 Civ. 6035(PGG), 2010 WL 3632692, at *5 (S.D.N.Y. Sept. 17, 2010); Garrett v. Port Auth. of 18 New York & New Jersey , No. 04 Civ. 7368(DC), 2006 WL 2266298, at *7 (S.D.N.Y. Aug. 8, 19 2006) (quoting Katzev v. Newman , No. 96 Civ. 9138(BSJ), 2000 WL 23229, at *4 (S.D.N.Y. 20 Jan. 12, 2000)); Levenson v. Nussbaum , No. 17045/09, 2011 N.Y. Misc. LEXIS 1834, at *8-9 21 (Sup. Ct. Nassau Cnty. Apr. 8, 2011). Nonetheless, in view of the fact that the Second 22

811-3225 Stampf v. Trigg Department has never held that a DAT does not initiate a criminal proceeding for the purposes of 1 a malicious prosecution claim, and that the Third and Fourth Departments in Snead and Allen 2 held, in accordance with Rosario, that it does, we adhere to the position we took in Rosario that, 3 under New York law, the issuance of a DAT sufficiently initiates a criminal prosecution to 4 sustain a claim of malicious prosecution. 5 ii. Trigg Played a Role in Initiating the Criminal Proceeding 6 Next, Trigg contends that Stampf presented no evidence that Trigg played a role in the 7 issuance of the DAT. See Krzyzak v. Schaefer, 860 N.Y.S.2d 252, 253 (3d Dep’t 2008) 8 (affirming the dismissal of the plaintiff’s malicious prosecution claim because “the record does 9 not reveal any evidence of defendant’s active involvement in the prosecution of plaintiff 10 following the signing of the complaint”). The DAT lists Stampf’s offense as “forcible touching” 11 which, under New York Penal Law § 130.52, occurs when a person “forcibly touches the sexual 12 or other intimate parts of another person for the purpose of degrading or abusing such person; 13 or for the purpose of gratifying the actor’s sexual desire .” N.Y. Penal Law § 130.52 (emphasis 14 added). Trigg points out that neither of the written statements that she provided to the MTA 15 police state that Stampf grabbed Trigg’s breast for the purposes listed in the penal law. JA at 16 1221-22, 1240-42. These statements, according to Trigg, should not have resulted in the police 17 issuing a DAT for forcible touching. 18 In order to initiate a criminal proceeding for the purposes of a malicious prosecution 19 claim, Trigg need not have explicitly named each element of a particular crime, as Trigg’s 20 argument implies. Instead, “it must be shown that [the] defendant played an active role in the 21 prosecution, such as giving advice and encouragement or importuning the authorities to act.” 22

911-3225 Stampf v. Trigg Rohman v. New York City Transit Auth. , 215 F.3d 208, 217 (2d Cir. 2000) (quoting DeFilippo v. 1 Cnty. of Nassau , 583 N.Y.S.2d 283, 284 (2d Dep’t 1992) (internal quotation marks omitted). 2 This was amply shown. See TADCO Constr. Corp. v. Dormitory Auth. of New York, 700 F. 3 Supp. 2d 253, 270 (E.D.N.Y. 2010) (“Giving information to the police that is known to be false 4 qualifies as the commencement of a prosecution.”) (internal quotation marks and citation 5 omitted); Brown v. Sears Roebuck & Co. , 746 N.Y.S.2d 141, 146 (1st Dep’t 2002) (“[I]t is true 6 that a defendant may be said to have initiated a criminal proceeding by providing false evidence 7 to the police or withholding evidence that might affect the determination by the police to make 8 an arrest . . . .”) (dictum). In any event, even if Trigg did not explicitly say that Stampf acted for 9 the purpose of abusing or degrading her or gratifying sexual desires, her accusation implicitly 10 supports such an inference. 11 b. The Proceeding Terminated in Stampf’s Favor 12 Next, Trigg contends that, even if the DAT initiated a proceeding against Stampf, the 13 proceeding was never terminated in Stampf’s favor, as required to support a claim of malicious 14 prosecution. 15 On December 27, 2006, the District Attorney of the County of New York issued a 16 declination of prosecution which stated: 17 The New York County District Attorney’s Office declinesto prosecute this action 18 against Melissa Stampf at this time. 19 Following a review of the evidence and interviews with several witnesses, 20 including the complaining witness, the People conclude that the case can not be 21 proven beyond a reasonable doubt. Consequently, the New York District 22 Attorney’s Office declines to prosecute this action at this time. 23
JA at 1061. 24

1011-3225 Stampf v. Trigg Trigg contends that the Declination did not terminate the proceeding because, as 1 Assistant District Attorney Kern testified at trial, the Declination did not prohibit the District 2 Attorney from reinstating the prosecution. Trigg c ites the New York Court of Appeals’ statement 3 that “any final termination of a criminal proceeding in favor of the accused, such that the 4 proceeding cannot be brought again, qualifies as a favorable termination for purposes of a 5 malicious prosecution action.” Smith-Hunter v. Harvey , 95 N.Y.2d 191, 195 (2000). However, 6 the Court of Appeals also stated in Smith-Hunter that “[a] dismissal without prejudicequalifies 7 as a final, favorable termination if the dismissal represents ‘the formal abandonment of the 8 proceedings by the public prosecutor’ . . . .” Id. at 198 (emphasis added) (quoting Restatement 9 (Second) of Torts § 659(c)). Thus, Smith-Hunter does not establish the rule urged by Trigg. 10 Likewise, in Verboys v. Town of Ramapo , 785 N.Y.S.2d 496 (2d Dep’t 2004), the Second 11 Department held that a jury could find that a criminal proceeding was terminated in the 12 plaintiff’s favor where, “although the initial criminal proceeding against the plaintiff

. . . was 13 dismissed without prejudice , the record demonstrates that the prosecution undertook a full 14 investigation and elected not to proceed with the charges because it determined that the 15 allegations against the plaintiff were not supported by the evidence.” Id. at 497 (emphasis 16 added). 17 Trigg argues that, even if the criminal proceeding was finally terminated, it was not 18 terminated in Stampf’s favor because the disposition does not indicate Stampf’s innocence. To 19 support this point, Trigg relies on language from MacFawn v. Kresler, 88 N.Y.2d 859, 860 20 (1996) stating, “A criminal proceeding terminates favorably to the accused, for purposes of a 21

1111-3225 Stampf v. Trigg malicious prosecution claim, when the final disposition of the proceeding involves the merits 1 and indicates the accused’s innocence.” 2 However, in Smith-Hunter, the Court of Appeals described this language from MacFawn 3 as dicta and “reject[ed] the notion—as contrary to the common law and our longstanding 4 precedents—that . . . [a] plaintiff must demonstrate innocence in order to satisfy the favorable 5 termination prong of the malicious prosecution action.” 95 N.Y.2d at 198-99. The court read 6
MacFawn narrowly to “stand only for the proposition that dispositions inconsistent with 7 innocence . . . cannot be viewed as favorable to the accused.” Id. at 199; see also Cantalino v. 8
Danner, 96 N.Y.2d 391, 392 (2001) (holding that a dismissal in the interest of justice was a 9 favorable termination for the purposes of a malicious prosecution action where “the court’s 10 reasons for dismissing the criminal charges were not inconsistent with the innocence of the 11 accused”). 12 If the law were as Trigg argues, it would mean that malicious prosecution claims often 13 could not be brought in the cases where the accusations had the least substance. The cases that 14 most lack substance are most likely to be abandoned by the prosecution without pursuing them 15 to judgment. On Trigg’s view, the most unjustified accusations might thus be the most likely to 16 be shielded from malicious prosecution claims. We believe that, under New York law, a 17 declination as received by Stampf suffices to establish termination in the plaintiff’s favor 18 notwithstanding that the prosecutor is theoretically capable of resurrecting the prosecution. 19 c. Stampf Was Not Collaterally Estopped from Claiming Malicious Prosecution 20 Trigg also appeals from the denial of her motion for judgment as a matter of law on the 21 ground that the arbitration award collaterally estopped Stampf from prevailing on her malicious 22

1211-3225 Stampf v. Trigg prosecution claim. As the court held below, Trigg waived this argument by failing to raise it in 1 her Rule 50(a) motion. See Fed. R. Civ. P. 50 Advisory Committee Note (2006) (“Because the 2 Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds 3 advanced in the preverdict motion.”); Tolbert v. Queens College , 242 F.3d 58, 70 (2d Cir. 2001) 4 (“The posttrial motion [for judgment as a matter of law] is limited to those grounds that were 5 specifically raised in the prior motion for [judgment as a matter of law]; the movant is not 6 permitted to add new grounds after trial.” (internal quotation marks omitted)). 2 7
II. The District Court Did Not Err in Denying Trigg’s Motion for a New Trial 8 Trigg contends the district court erred in denying her motion for a new trial on liability. 9 Trigg argues that the court erred in (1) not allowing Trigg to introduce the arbitration decision as 10 evidence in the trial, (2) admitting evidence of her prior sexual behavior, and (3) prohibiting the 11

2 Trigg requests, in the alternative, that we consider her collateral estoppel argument as an appeal from the court’s denial of her motion for summary judgment and motion for reconsideration. In general, “where summary judgment is denied and the movant subsequently loses after a full trial on the merits, the denial of summary judgment may not be appealed . . . .” Schaefer v. State Ins. Fund, 207 F.3d 139, 142 (2d Cir. 2000) (citation omitted); see also Ortiz v. Jordan , 131 S. Ct. 883 (2011). We have recognized an exception to this rule and permitted appeals from the denial of summary judgment after a full trial on the merits “where the district court’s error was purely one of law.” Schaefer, 207 F.2d at 142. In Ortiz , the Supreme Court did not permit petitioners to appeal an order denying summary judgment after a full trial on the merits without addressing whether an appeal may lie from a denial of summary judgment when the asserted error is purely one of law because the questions raised on appeal did not present “neat abstract issues of law. ” 131 S. Ct. at 893. The Court noted that cases “present[ing] purely legal issues capable of resolution with reference only to undisputed facts . . . typically involve contests not about what occurred, or why an action was taken or omitted, but disputes about the substance and clarity of pre-existing law.” Id. at 892. Trigg’s appeal does not raise a purely legal claim of error. Whether Stampf was collaterally estopped from bringing her malicious prosecution claim turns, in part, on whether she received a full and fair opportunity to litigate whether Stampf improperly touched Trigg’s breast. See LaFleur v. Whitman , 300 F.3d 256, 271 (2d Cir. 2002) (“New York courts apply collateral estoppel . . . if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action.” (internal quotation marks omitted)). Although collateral estoppel generally raises questions of law, the appraisal of whether the opportunity to litigate has been sufficiently adequate to support preclusion is a fact-based inquiry. See Staatsburg Water Co. v. Staatsburg Fire Dist. , 72 N.Y.2d 147, 153 (1988) (“[T]he analysis [for whether a party had a full and fair opportunity to contest the prior decision] requires consideration of ‘the realities of litigation’ . . . .”). Therefore, Trigg is precluded from appealing from the denial of her summary judgment motion and motion for reconsideration.

1311-3225 Stampf v. Trigg assistant district attorney from testifying as to whether the Declination of Prosecution implied 1 Stampf’s innocence. 2 A district court may grant a motion for new trial under Rule 59 if “the jury has reached a 3 seriously erroneous result or [its] verdict is a miscarriage of justice.” Nimely v. City of New York, 4 414 F.3d 381, 392 (2d Cir. 2005) (alternation in original) (internal quotation marks and citation 5 omitted). A new trial may be warranted “if substantial errors were made in admitting or 6 excluding evidence.” Sharkey v. Lasmo (AUL Ltd.) , 55 F. Supp. 2d 279, 289 (S.D.N.Y. 1999). 7 We review a district court’s denial of a motion for a new trial, as well as a district court’s 8 evidentiary rulings, for abuse of discretion. Nimely , 414 F.3d at 392-93. 9 a. Admissibility of the Arbitration Decision 10 In rejecting Trigg’s offer of the arbitration decision as evidence at trial, the district court 11 reasoned that Stampf was not afforded a suffi cient degree of procedural fairness during the 12 arbitration to justify admitting the decision as evidence. Stampf v. Long Island R.R. Auth. , No. 13 Cv-07-3349(SMG), 2010 U.S. Dist. LEXIS 121329, at *5-7 (E.D.N.Y. Nov. 16, 2010); see 14 Alexander v. Gardner-Denver Co. , 415 U.S. 36, 60 n.21 (1974) 3(“We adopt no standards as to 15 the weight to be accorded an arbitral decision, since this must be determined in the court’s 16 discretion with regard to the facts and circumstances of each case. Relevant factors include . . . 17 the degree of procedural fairness in the arbitralforum . . . .”). The district court noted that 18 Stampf’s choice not to testify because of her pending criminal proceedings “is a particularly 19

3In Alexander, the Supreme Court also opined that arbitration was inferior to judicial proceedings for resolving certain statutory claims. Alexander, 415 U.S. at 56-58. The Court subsequently undermined that view, noting that the “mistrust of the arbitral process” as expressed in Alexander “has been undermined by . . . recent arbitration decisions.” Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 34 n.5 (1991) (quoting Shearson/American Express, Inc. v. McMahon , 482 U.S. 220, 231-232 (1987)).

1411-3225 Stampf v. Trigg important factor in this case because the dispute over the events of July 9, 2006 essentially boils 1 down to a credibility contest between Trigg and Stampf.” Stampf , 2010 U.S. Dist. LEXIS 2 121329, at *6. 3 District courts enjoy substantial latitude in making evidentiary rulings of this nature. In 4 our view, the court did not abuse its discretion by excluding the arbitration decision. See, e.g. , 5 United States v. Robinson , 702 F.3d 22, 36 (2d Cir. 2012) (“We review a district court's 6 evidentiary rulings with deference, mindful of its superior position to assess relevancy and to 7 weigh the probative value of evidence against its potential for unfair prejudice.” (internal 8 quotation marks and citation omitted)). 9 b. Evidence of Trigg’s Prior Sexual Behavior 10 Trigg also challenges the district court’s receipt of testimony to the effect that Trigg was 11 a regular participant in a culture of sexually tinted locker room jocularity among LIRR 12 employees, which included cat calling at a co-worker seen wearing shorts, butt slapping, and 13 chest rubbing. For example, a male employee, Matthew Schrader, testified that one day Trigg 14 “brushed up against me and kind of touched my behind. And I didn’t think anything of it because 15 that’s what people would do every day there.” JA at 326. He also testified, “[T]here were 16 numerous other occasions when she would come in and she would cat call me because 17 sometimes I will wear shorts to work. . . . She would make comment about my legs, come and 18 rub my shoulders or my chest or something like that.” Id. at 328. In addition, he confirmed that 19 she had hugged him and rubbed her breasts on him. Another employee, Glenis Holland, testified 20 that she had seen Trigg “slap a male conductor on the rear end.” JA at 294. 21

1511-3225 Stampf v. Trigg Trigg contends the admission of this evidence violated Federal Rule of Evidence 412(a), 1 which makes inadmissible “in a civil or criminal proceeding involving alleged sexual 2 misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) 3 evidence offered to prove a victim’s sexual predisposition.” Fed. R. Evid. 412(a). 4 The rule, however, is not categorical or absolute. Rule 412(b)(2), under the caption 5 “Exceptions,” provides that “[i]n a civil case, the court may admit evidence [of] a victim’s 6 sexual behavior . . . if its probative value substantially outweighs the danger of harm to any 7 victim and of unfair prejudice to any party.” Fed. R. Evid. 412(b)(2). We assume without 8 deciding that Rule 412 applies to this case, in which the defendant was charged with falsely 9 accusing the plaintiff of sexual misconduct and the defendant responded that she was in fact a 10 victim of the plaintiff’s sexual misconduct. SeeFed. R. Evid. 412 Advisory Committee Note 11 (1994) (“Rule 412 applies in any civil case in which a person claims to be the victim of sexual 12 misconduct . . . .”). We nevertheless conclude that the district court did not abuse its discretion in 13 admitting the evidence. The district court determined that Trigg’s own indulgence in sexually 14 provocative touching in the workplace, which furthermore was commonplace among her 15 workplace colleagues, was highly probative as to whether Trigg’s report to the police was 16 motivated by actual malice or rather (as she claimed) by genuine fear for her own safety. See 17 Manganiello , 612 F.3d at 163-64 (describing the actual malice element of a malicious 18 prosecution claim). It also determined that the evidence at issue was not particularly prejudicial. 19 We see no abuse of discretion in the district court’s weighing of these factors under Rule 20 412(b)(2). 21

1611-3225 Stampf v. Trigg c. Testimony of ADA Kern 1 Trigg protests the District Court’s exclusion of her question addressed to 2 Assistant District Attorney Kern as to whether a declination of prosecution indicates that 3 a defendant is innocent. The District Court sustained Stampf’s objection to the question 4 not on the grounds of relevance, but because it called for expert testimony and Trigg had 5 failed to make pretrial disclosure of an intention to elicit this expert testimony from Kern 6 as required by Federal Rule of Civil Procedure 26(a)(2). We find no fault with the court’s 7 ruling. 8
III. Trigg’s Motion for Remittitur Should Be Granted 9 Trigg appeals from the district court’s denial of her motion for remittitur on each 10 of her jury awards: $200,000 for past emotional distress, $100,000 for future emotional 11 distress, $30,000 in economic damages, and $150,000 in punitive damages. “Remittitur is 12 the process by which a court compels a plaintiff to choose between reduction of an 13 excessive verdict and a new trial.” Shu-Tao Lin v. McDonnell Douglas Corp. , 742 F.2d 14 45, 49 (2d Cir. 1984). In considering motions for a new trial and/or remittitur, “[t]he role 15 of the district court is to determine whether the jury’s verdict is within the confines set by 16 state law, and to determine, by reference to federal standards developed under Rule 59, 17 whether a new trial or remittitur should be ordered.” Gasperini v. Ctr. for Humanities, 18
Inc. , 518 U.S. 415, 435 (1996) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco 19 Disposal, Inc. , 492 U.S. 257, 279 (1989)). 20 Under New York law, a court “shall determine that an award is excessive or 21 inadequate if it deviates materially from what would be reasonable compensation.” N.Y. 22

1711-3225 Stampf v. Trigg
C.P.L.R. § 5501(c) ; Okraynets v. Metro. Transp. Auth. , 555 F. Supp. 2d 420, 439 1 (S.D.N.Y. 2008) (“[T]he standard under § 5501(c) is not whether an award deviates at all 2 from past awards—it is whether an award deviates materiallyfrom reasonable 3 compensation. ”). To determine whether a jury award is excessive within the meaning of 4 § 5501(c), New York courts compare it with awards in similar cases. Gasperini , 518 U.S. 5 at 425 (citing Leon v. J & M Peppe Realty Corp. , 596 N.Y.S.2d 380, 389 (1st Dep’t 6 1993); Johnston v. Joyce , 596 N.Y.S.2d 625, 626 (4th Dep’t 1993). 7 Applying the federal standard of review, we review a district court’s denial of 8 remittitur for abuse of discretion. Cross v. N.Y.C. Transit Auth. , 417 F.3d 241, 258 (2d 9 Cir. 2005); see Gasperini , 518 U.S. at 438. When reviewing a trial court’s decision for 10 abuse of discretion, the degree of deference we give to the trial court depends on the type 11 of case being reviewed. Payne v. Jones , 711 F.3d 85, 100 (2d Cir. 2013) (citing Henry J. 12 Friendly, Indiscretion About Discretion , 31 Emory L.J. 747, 764 (1982) (“Some cases 13 call for application of the abuse of discretion standard in a ‘broad’ sense and others in a 14 ‘narrow’ one.”). In Dagnello v. Long Island R.R. Co. , 289 F.2d 797 (2d Cir. 1961), we 15 articulated a discerning standard of review for a trial court’s denial of a motion for a new 16 trial or remittitur: 17 If the question of excessiveness is close or in balance, we must affirm . . . . We 18 must give the benefit of every doubt to the judgment of the trial judge; but surely 19 there must be an upper limit, and whether that has been surpassed is not a 20 question of fact with respect to which reasonable men may differ, but a question 21 of law. 22 Payne , 711 F.3d at 97-98 (quoting Dagnello , 289 F.2d at 806); see also Grunenthal v. Long 23 Island R.R. Co., 393 U.S. 156, 159-60 (1968) (Brennan, J. ) (applying Dagnellowithout passing 24

1811-3225 Stampf v. Trigg
on its correctness); id. at 165 (Stewart, J., dissenting) (“I believe this standard of judicial review 1 is the correct one and can think of no better way to verbalize it.”). Under this articulation of the 2 standard, “the discretion of the trial court on excessiveness is subject to substantial constraints.” 3 Payne , 711 F.3d at 97-98. In applying the Dagnello standard, we are required “to make a 4 detailed appraisal of the evidence bearing on damages.” Grunenthal , 393 U.S. at 159. 5 a. Damages for Mental and Emotional Distress 6 Awards for mental and emotional distress are inherently speculative. There is no 7 objective way to assign any particular dollar value to distress. Nonetheless, as we explained in 8 discussing a claim of excessive punitive damages in Payne , “a legal system has an obligation to 9 ensure that such awards for intangibles be fair, reasonable, predictable, and proportionate.” 711 10 F.3d at 93. When a jury undertakes to assess a plaintiff’s mental and emotional distress, it has 11 nothing on which to base its valuation “other than the instincts of the jurors and random, often 12 inaccurate, bits of information derived from press accounts or word of mouth in the community 13 about how such intangibles have been valued in other cases.” Id. Excessive awards for 14 psychological and emotional distress not only disproportionally inflict harm on the tortfeasor and 15 his or her dependants, they also impose burdensome costs on society. As we explained in Payne : 16 [A]n excessive verdict that is allowed to stand establishes a precedent for 17 excessive awards in later cases. . . . Unchecked awards levied against significant 18 industries can cause serious harm to the national economy. Productive companies 19 can be forced into bankruptcy or out of business. Municipalities can be drained of 20 essential public resources. The threat of excessive damages, furthermore, drives 21 up the cost of insurance premiums, deters both individuals and enterprises from 22 undertaking socially desirable activities and risks, and encourages overspending 23 on ‘socially excessive precautions’ that ‘cost[ ] more than the reduction of harm 24

1911-3225 Stampf v. Trigg produced by [them].’ A. Mitchell Polinsky & Steven Shavell, Punitive Damages: 1 An Economic Analysis , 111 Harv. L. Rev. 869, 879 (1998). The prices of goods 2 and services will rise, and innovation will be inhibited. 3 Id. at 94 (alterations in the original). 4 “While judges have no greater ability than jurors to determine any correct amount of 5 [subjective] damages . . . , judges do have far greater familiarity with the experience of the legal 6 system . . . [and] have a better awareness than do juries whether a particular award is consistent 7 with the norms that prevail in that system.” Id. at 96. Furthermore, it follows inevitably that if 8 courts regularly approve amounts of awards that they would deem excessive under de novo 9 review, in order to give deference to the jury, then the baseline of reasonableness will be 10 constantly forced upward. This is, in part, because the awards on which information is most 11 easily available are those challenged by defendants as excessive and, thus, reported in judicial 12 opinions. Smaller awards are not usually challenged and, therefore, are not usually reflected in 13 judicial opinions. Because courts look to judicialopinions reporting prior awards as part of the 14 basis for assessing the reasonableness of future awards, that baseline will be primarily composed 15 of high awards that have drawn challenges. 16 i. Past Mental and Emotional Distress 17 The district court upheld the $200,000 award for emotional damages after making an 18 appraisal of the evidence bearing on damages and comparing the jury’s award with awards 19 approved in similar cases. The court concluded that the evidence at trial supported a finding that 20 Stampf suffered “more than mere ‘garden-variety’ emotional distress” because: (1) Stampf was 21

2011-3225 Stampf v. Trigg arrested at work and escorted in handcuffs past coworkers, supervisors, and Trigg; (2) her arrest 1 was the subject of gossip at the LIRR, where she worked for approximately fourteen years; (3) 2 she was patted down, told she was being charged with sexual assault, and held in a locked cell 3 for approximately five hours; 4(4) she testified that this experience made her feel “ashamed and 4 mortified and . . . like a criminal,” JA at 177; (5) she was issued a DAT charging forcible 5 touching; (6) she borrowed money from her father to hire a defense attorney, causing her father 6 to obtain a second mortgage on his home; (7) she faced a disciplinary hearing by her employer 7 and chose not to testify in her defense because of the pending criminal case against her; (8) the 8 arrest and prosecution and obligation to pay back her father took a toll on her committed 9 romantic relationship, eventually contributing to the end of the relationship; (9) the stress and 10 anxiety of the criminal case contributed to Stampf beginning to drink excessively; and (10) 11 Stampf sought therapy, attended Alcoholics Anonymous meetings, and required prescription 12 medication to help her sleep. Stampf v. Long Island R.R. Auth. , No. 07-cv-3349(SMG), 2011 WL 13 3235704, at *10-11 (E.D.N.Y. July 28, 2011). The distri ct court observed that “[i]t was clear 14 from Stampf’s demeanor at trial that she continues to be troubled by the events surrounding her 15 arrest and prosecution.” Id. at *11. 16 The court compared Stampf’s award with other awards in excess of $100,000 for 17 “straight-forward ‘garden-variety’ emotional distress damages” and found that Stampf’s 18 $200,000 award was “within the vast range of awards in comparable cases.” Id. at *12-13 (citing 19 Patterson v. Balsamico , 440 F.3d 104, 120 (2d Cir. 2006) (affirming a jury award of $100,000 in 20

4 Police records show that Stampf was, in fact, held in a locked cell for approximately four hours.

2111-3225 Stampf v. Trigg compensatory damages on a claim of intentional infliction of emotional distress arising from an 1 assault in which plaintiff was sprayed with mace and shaving cream and taunted with racial 2 slurs); Wallace v. Suffolk Cnty. Police Dep’t, No. 04-cv-2599(RRM)(WDW), 2010 WL 3 3835882, at *8 (E.D.N.Y. Sept. 24, 2010) (upholding a $200,000 award for emotional distress 4 under the federal “shocks the conscience” standard—rather than New York’s “deviates 5 materially” standard—for “sleeplessness, anger, difficulty with . . . personal and family 6 relationships, stress, tension, and emotional trauma” resulting from First Amendment 7 retaliation); Strader v. Ashley , 877 N.Y.S.2d 747, 751 (3d Dep’t 2009) (affirming a $250,000 8 compensatory damages award for malicious prosecution where the plaintiff lost employment and 9 income and “suffered emotional and physical harm—including feeling anxious and worried 10 about his reputation in the community, feeling si ck to his stomach, difficulty sleeping and eating 11 and losing weight—and that he stopped soci alizing for fear of public scorn”); Morsette v. “The 12 Final Call,” 764 N.Y.S.2d 416, 422 (1st Dep’t 2003) (affirming a $100,000 award for past 13 mental anguish and emotional harm and reducing an award for future mental anguish and 14 emotional harm from $500,000 to $300,000 in a libel case where defendant published a picture 15 of the plaintiff in a newspaper that was altered to make her look like an inmate, causing 16 depression, anxiety, and weight gain)). 17 In our view, these cases do not support the approval of the $200,000 award for past 18 emotional distress. The courts in Pattersonand Morsette upheld awards of $100,000—half the 19 size of Stampf’s award for past emotional distress damages—and the other two cases the district 20

2211-3225 Stampf v. Trigg court relied on are distinguishable. The Wallace court upheld a $200,000 award for emotional 1 stress under the more deferential shocks-the-conscience standard, and the $250,000 2 compensatory damages award in Strader included lost employment and income in addition to 3 emotional distress. 4 As we previously noted in the context of discrimination claims, “New York cases vary 5 widely in the amount of damages awarded for mental anguish.” Lore v. City of Syracuse , 670 6 F.3d 127, 177 (2d Cir. 2012) (quoting Meacham v. Knolls Atomic Power Lab. , 381 F.3d 56, 78 7 (2d Cir. 2004) (compiling discrimination cases in which New York courts reduce awards for 8 mental anguish to $30,000 or below as well as cases in which New York courts uphold awards of 9 more than $100,000)). Based on our survey of damages awards for emotional distress and 10 malicious prosecution, $100,000 appears to reflect the upper end of the range of awards in 11 comparable cases. Compare Patterson , 440 F.3d at 120 and Morsette, 764 N.Y.S.2d at 422, with 12 Rohrs v. Rohrs , 793 N.Y.S.2d 532, 533-34 (2d Dep’t 2005) (holding that a $50,000 malicious 13 prosecution compensatory damages award deviated materially from what would be reasonable 14 compensation and ordering a new trial on the issue of damages unless plaintiff stipulated to a 15 reduction in the award to $25,000), Lynch v. Cnty. of Nassau , 717 N.Y.S.2d 248, 249 (2d Dep’t 16 2000) (ordering a new trial on the issue of damages unless the plaintiff consented to reducing 17 damages for loss of reputation and humiliation from $25,000 to $10,000, reducing damages for 18 intentional infliction of emotional distress from $75,000 to $25,000, and reducing punitive 19 damages from $100,000 to $50,000 in connection with an action for false arrest, malicious 20

2311-3225 Stampf v. Trigg prosecution, and intentional infliction of emotional distress), and Parkin v. Cornell Univ., Inc. , 1 581 N.Y.S.2d 914, 916-17 (3d Dep’t 1992) (finding excessive a $100,000 compensatory 2 damages award and $100,000 punitive damages award to each plaintiff in an action for false 3 arrest, malicious prosecution, and abuse of process, and ordering a new trial on the issue of 4 damages unless plaintiffs stipulated to a reduction of compensatory damages to $10,000 and of 5 punitive damages to $10,000 per plaintiff). 6 Even though Stampf may have suffered “greater than ‘garden variety’ emotional 7 distress,” as the district court found, we find the award for past emotional distress excessive 8 given that Stampf was held by the police for only a few hours and was never indicted, convicted, 9 or sentenced. However, in deference to the district court’s finding that Stampf suffered greater 10 than garden variety emotional distress, we believe that an award for past emotional distress 11 reflecting the upper end of awards for emotional distress in comparable cases would be 12 appropriate. 5 Accordingly, we will grant a new trial on the issue of damages for past emotional 13 distress unless Stampf agrees to a remittitur reducing her award for past emotional distress to 14 $100,000. 15

5 Although the average victim of malicious prosecution may not have experienced such a high degree of stress and anxiety from Trigg’s malicious prosecution, “a defendant must take a plaintiff as [s]he finds him” and, therefore, is responsible for the harm she inflicts on a person even if that harm is exacerbated by the person’s unknown infirmities. Bartolone v. Jeckovich , 481 N.Y.S.2d 545, 546-47 (4th Dep’t 1984) (reversing the trial court’s grant of remittitur on a jury award of $500,000 for a plaintiff who sustained minor physical injuries and an “acute psychotic breakdown” resulting from a car accident) (citing McCahill v. New York Transp. Co. , 201 N.Y. 221 (1911)); cf. Steinhauser v. Hertz Corp. , 421 F.2d 1169, 1172 (2d Cir. 1970) (Friendly, J.) (reversing a verdict in defendant’s favor on the ground that the plaintiff’s theory of the case—that a defendant is liable for the emergence of schizophrenia resulting from the emotional trauma suffered by a passenger in a minor car accident caused by the defendant—is legally valid); Williams v. Bright, 658 N.Y.S.2d 910, 912 n.2 (1st Dep’t 1997) (recognizing that the “eggshell skull doctrine” is “traditionally [applied] to a plaintiff’s preexisting physical condition, mental illness or psychological disability” (internal citations omitted)).

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ii. Future Mental and Emotional Distress 1 The district court upheld the jury award of $100,000 for future mental and emotional 2 distress because the malicious prosecution “had long-lasting effects, including the break-up of a 3 committed relationship and problems with alcohol,” and Stampf “continues to work for the 4 Railroad and thus no doubt still interacts with co-workers who saw or heard about her arrest.” 5 Stampf , 2011 WL 3235704, at *13. In finding the $100,000 reasonable, the district court cited 6 Boodram v. Brooklyn Developmental Ctr. , 773 N.Y.S.2d 817 (Civ. Ct. 2003), in which the New 7 York City Civil Court upheld jury awards for $86,000 for mental suffering and emotional and 8 psychological injuries through trial and $86,000 for future mental suffering and emotional and 9 psychological injury. Id. at 834-35. In that case, the court determined that the award for future 10 mental and emotional distress was reasonable where the plaintiff was diagnosed with “post11 traumatic stress disorder with secondary depression” that was “both permanent and disabling.” 12 Id. at 822, 835. 13 The district court upheld the jury’s award for future emotional distress on highly 14 speculative grounds. First, unlike the plaintiff in Boodram , Stampf has not been diagnosed with a 15 permanent mental or emotional disorder, nor is there any medical evidence in the record showing 16 whether the distress caused by the malicious pros ecution would affect Stampf’s alcohol abuse 17 problems in the long-term. 6Second, based on the evidence presented in this case, the jury could 18 only speculate as to what emotional distress Stampf might suffer in the future from her broken 19

6Stampf testified that she attended meetings for her alcoholism prior to the July 9, 2006 incident, and she testified at trial that she currently drinks “[v]ery little.” JA at 235.

2511-3225 Stampf v. Trigg relationship. We therefore cannot sustain her award of future emotional damages on that ground. 1 See In re Estate of Rothko , 372 N.E.2d 291, 298 (N.Y. 1977) (noting damages must be “not 2 merely speculative, possible or imaginary”). 3 Nonetheless, a reasonable juror could find that returning to work every day with 4 coworkers who were aware that Stampf was arrested for grabbing another coworker’s breast 5 would cause some emotional distress. We find that an award of $20,000 appropriately reflects 6 Stampf’s damages from future emotional and mental distress. 7 b. Punitive Damages 8 In reviewing an award for punitive damages in Payne , we explained that “[n]o objective 9 standard exists that justifies the award of one amount, as opposed to another, to punish a 10 tortfeasor appropriately for his misconduct.” 711 F.3d at 93. Punitive damages “are given to the 11 plaintiff over and above the full compensation for the injuries, for the purpose of punishing the 12 defendant, of teaching the defendant not to do it again, and of deterring others from following 13 the defendant’s example.” Prosser and Keeton on the Law of Torts § 2, at 9 (5th ed. 1984). They 14 “are by nature speculative, arbitrary approximations.” Payne , 711 F.3d at 93. Despite this 15 arbitrariness, courts “bear the responsibility to ensure that judgments as to punitive damages 16 conform, insofar as reasonably practicable, to [the prevailing norms of the legal system] and are 17 not excessive.” Payne , 711 F.3d at 96. We review a district court’s determination as to whether a 18 jury’s punitive damages award “deviates materially from what would be reasonable,” Lynch , 717 19 N.Y.S.2d at 249 (2d Dep’t 2000), under an abuse of discretion standard, but given that “courts of 20

2611-3225 Stampf v. Trigg appeals are no less institutionally competent to review punitive awards for excessiveness than 1 are trial courts . . . , the degree of discretion enjoyed by trial courts in these matters is relatively 2
narrow.” Payne , 711 F.3d at 100. 3 The Supreme Court outlined three “guideposts” to facilitate its review of state court 4 punitive damage awards: (1) the degree of reprehensibility of the defendant’s conduct, (2) the 5 ratio of punitive damages to the actual harm inflicted, and (3) “the difference between this 6 remedy and the civil penalties authorized or imposed in comparable cases.” BMW of N. Am., Inc. 7
v. Gore , 517 U.S. 559, 575 (1996). When a federal appellate court reviews a federal district 8 court’s ruling as to whether a jury’s punitive damages award is excessive, it has “considerably 9 more supervisory authority” than when the Supreme Court reviews a decision of the highest 10 court of a state on the same question, yet the Court’s guideposts set forth in Gore provide a 11 useful framework for reviewing federal district court punitive damages awards. Payne , 711 F.3d 12 at 97. Thus, we consider whether Stampf’s award for punitive damages is excessive in light of 13 judges’ greater familiarity than juries’ with norms for punitive damages, federal appellate courts’ 14 considerable supervisory authority when reviewing district courts’ rulings as to the 15 excessiveness of a jury’s punitive damages award, and the three guideposts set forth by the 16 Supreme Court in Gore

. 17 i. Degree of Reprehensibility 18 The Supreme Court described “the degree of reprehensibility of the defendant’s conduct” 19 as “[p]erhaps the most important indicium of the reasonableness of a punitive damages award.” 20

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Gore , 517 U.S. at 575. In assessing reprehensibility, we consider both the defendant's conduct 1 and its natural consequences. See id. at 575-76. Conduct that involves deceit or malice is more 2 reprehensible than conduct involving mere negligence, Patterson , 440 F.3d at 121; Lee v. 3 Edwards , 101 F.3d 805, 809 (2d Cir. 1996). Likewise, conduct that could cause serious physical 4 or emotional injury is more reprehensible than conduct that risks only minor injuries or 5 economic damages. See Gore , 517 U.S. at 576. 6 It can be difficult for juries and judges to calibrate the reprehensibility of a defendant’s 7 conduct to a reasonable punitive damages award in a vacuum. Cf. Ismail v. Cohen , 899 F.2d 183, 8 186 (2d Cir. 1990). Courts have found it useful to compare punitive damages awards with 9 previous court rulings on the issue of excessiveness to assist with this determination. See Payne , 10 711 F.3d at 104-05; Lee , 101 F.3d at 812. 11 In the instant case, with actual malice, Trigg made false statements to the police accusing 12 Stampf of grabbing her breast, which resulted in Stampf’s arrest at work in front of a number of 13 coworkers. Due to Trigg’s malicious conduct, Stampf spent an evening in prison, experienced 14 public embarrassment at her place of work, and experienced significant stress that contributed to 15 her alcohol abuse problems and the end of a long-term, committed relationship. 16 Trigg’s conduct is comparably reprehensible to the defendants’ in Strader, 877 N.Y.S.2d 17 747 and Lynch , 717 N.Y.S.2d 248. InStrader, a plaintiff brought an action against defendants 18 who made false statements to the police accusing plaintiff of theft resulting in a jury trial for 19 petit larceny. The plaintiff testified that, as a result of the malicious prosecution, he lost 20

2811-3225 Stampf v. Trigg carpentry work and income from his position as a substitute teacher and suffered emotional and 1 physical harm “including feeling anxious and worried about his reputation in the community, 2 feeling sick to his stomach, difficulty sleeping and eating and losing weight.” Strader, 877 3 N.Y.S.2d at 751. The Third Department upheld a jury award of $250,000 in compensatory 4 damages and $117,500 in punitive damages. Id. at 751-52. 5
In Lynch , a parking enforcement officer falsely accused the plaintiff of hitting her with 6 her car as she drove away after a dispute over a parking ticket. See Brief for Defendant7 Appellants, Lynch v. Cnty. of Nassau , 717 N.Y.S.2d 248 (2d Dep’t 2000) (No. 1999-10362), 8 1999 WL 33922170, at *3. The plaintiff was arrested, held in a cell for two or three hours, 9 charged with assault in the third degree, and required to make six or seven pretrial court 10 appearances before the charges were dropped. Id. at *3-4. The plaintiff brought an action for 11 false arrest, malicious prosecution, and intentional infliction of emotional distress and was 12 awarded $150,000 in compensatory damages and $100,000 for punitive damages. Lynch , 717 13 N.Y.S.2d at 249. The court found that “the plaintiff suffered humiliation and a deprivation of 14 liberty as a result of being arrested, . . . [and] the subsequent criminal proceedings. However, 15 there was little objective evidence that she suffered significant damage to her reputation as a 16 result of the defendants’ actions.” Id. at 249. Accordingly, the court reduced the compensatory 17 damages to $85,000 and the punitive damages to $50,000. Id. 18

2911-3225 Stampf v. Trigg Based on these comparisons, we find, while giving deference to the district court’s 1 conclusion, that the punitive damages imposed on Trigg were excessive in relation to the 2 reprehensibility of her conduct. 3 ii. Ratio of Punitive Damages to the Actual Harm Inflicted 4 The Supreme Court explained in Gore that it could not “draw a mathematical bright line” 5 between constitutionally acceptable and unacceptable ratios for punitive damages, Gore , 517 6 U.S. at 582. In State Farm Mutual Automobile Insurance Co. v. Campbell , the Court said that, 7 “in practice, few awards exceeding a single-digit ratio between punitive and compensatory 8 damages, to a significant degree, will satisfy due process,”but clarified in the same opinion that 9 greater ratios “may comport with due process where a particularly egregious act has resulted in 10 only a small amount of economic damages. 538 U.S. 408, 425 (2003) (internal quotation marks 11 and citation omitted); see Lee , 101 F.3d at 811 (noting that a punitive damages award over 500 12 times greater than a compensatory damages award could be reasonable where the compensatory 13 damages are nominal). In any event, the ratio of the jury’s award of punitive damages to the 14 compensatory award (as reduced) is 1:1, which does not “raise a suspicious judicial eyebrow.” 15
Gore , 517 U.S. at 582 (citation omitted). 16 iii. Difference between this remedy and the civil penalties authorized 17 or imposed in comparable cases 18
In Gore , the Supreme Court stated that “[c]omparing the punitive damages award and the 19 civil or criminal penalties that could be imposed for comparable misconduct provides a third 20

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indicium of excessiveness.” Gore , 517 U.S. at 583. The Court established this as a third indicium 1 of excessiveness in order to “accord substantial deference to legislative judgments concerning 2 appropriate sanctions for the conduct at issue.” Id. (internal quotation marks and citation 3 omitted). 4 The offense of “falsely reporting an incident in the third degree” under New York law 5 provides a useful comparison in this case. The New York Penal Law classifies falsely reporting 6 an incident in the third degree as a class A misdemeanor. N.Y. Penal Law § 240.50. “A person is 7 guilty of falsely reporting an incident in the third degree when, knowing the information 8 reported, conveyed or circulated to be false or baseless, he or she: . . . (3) [g]ratuitously reports 9 to a law enforcement officer or agency (a) the alleged occurrence of an offense or incident which 10 did not in fact occur . . . .” Id. A person convicted of a class A misdemeanor may be sentenced to 11 a term of imprisonment “not [to] exceed one year,” N.Y. Penal Law § 70.15(1), and he or she 12 may be fined by an amount “not exceeding one thousand dollars,” N.Y. Penal Law § 80.05, but 13 neither a prison sentence nor a fine is required under New York law. “The fact that New York 14 classes [Trigg’s] conduct as warranting criminal prosecution tends to confirm the 15 appropriateness of the imposition of a punitive award.” Payne , 711 F.3d at 103. Meanwhile, “the 16 fact that the offense is . . . only a misdemeanor[] and that courts are at liberty . . . to impose no 17 imprisonment or fine whatsoever . . . tend to suggest that New York regards this conduct as 18 occupying the lower echelons of criminality.” Id. at 104. The maximum limits set by the New 19

3111-3225 Stampf v. Trigg York legislature on the criminal penalties for Trigg’s conduct further confirm the excessiveness 1 of the punitive award of $150,000. 2 iv. Totality of the Factors 3 Considering all the factors specified in Gore , we find that the punitive damages award is 4 excessive and conclude that a punitive damages award of $100,000 is the maximum sustainable 5 punitive award. 6 CONCLUSION 7 7 The judgment of the district court is vacated in part and affirmed in part. We remand with 8 instructions to grant a new trial on the issue of damages unless Stampf agrees to a remittitur 9 reducing her award for past emotional distress to $100,000, her award for future emotional 10 distress to $20,000, and her award for punitive damages to $100,000, which (added to her 11 economic damages of $30,000) would make an aggregate damages award of $250,000. 12

7We have considered Trigg’s other arguments and find them meritless.

32