against Officer Durst and $25,000 against Sergeant Prusank will be entered in the judgment. If
the proposed remittitur is rejected, the Court will order a new trial on the issue of punitive
damages.

IT IS SO ORDERED.

c

?
WHE Ue Me LLL.
William J. fibpter
United States District Court

13


Inc., 532 U.S. 424, 432 (2001). Compensatory damages “are intended to redress the concrete
loss that the plaintiff suffered by reason of the defendant's wrongful conduct.” Id. By contrast,
punitive damages serve a broader function; they are aimed at deterrence and retribution. Id.
Here, defendants ask the Court to set aside or significantly reduce both the jury’s compensatory
and punitive damage awards. The Court will therefore address each award.

A. Compensatory Damages

The Seventh Circuit uses three criteria to review a compensatory damages award: (1)
whether the award is “monstrously excessive”; (2) whether there is no rational connection
between the award and the evidence; and (3) whether the award is roughly comparable to
awards made in similar cases. See Tullis v. Townley Eng’g Mfg. Co., 243 F.3d 1058, 1066 (7° Cir.
2001). Because the Seventh Circuit views the “monstrously excessive” standard as “rather
vague,” it has suggested that it be merged with the rationality inquiry. U.S. EEOC v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1285 n.13 (7 Cir. 1995).

Defendants claim that the $15,000 compensatory damages has no rational connection to
the evidence. Defendants argue that plaintiff did not produce any evidence of physical injuries
and did not offer any credible evidence demonstrating emotional damages. Defendants
conclude that this glaring lack of evidence must mean that jury based their decision on passion
and prejudice rather than on a rational connection to the evidence. Defendants therefore
request that the Court set aside or substantially reduce the jury’s compensatory damages award
to reflect the insubstantial evidence supporting plaintiffs claims.

Defendants’ position is unconvincing. Defendants do not explain why plaintiff was
required to produce actual physical evidence to substantiate his injury claims. The jury was

4



Chicago police officers for destroying the plaintiffs dental plate and knocking out many of his
teal teeth); Ibanez v. Valasco, 2002 WL 731778 (N.D. Ill. 2002) ($200,000 in punitive damages
against two correctional officers for beating and kicking the plaintiff without provocation);
Terrell v. Village of University Park, 1994 WL 30960 (N.D.IIl. 1994) ($10,000 in punitive damages
for plaintiff who was arrested, slapped and slammed against police car); Burks v. Harris, 1991
WL 140114 (N.D. IIL. 1991) ($6,500 in punitive damages against defendant police officers for
striking the plaintiff below the eye with police radio); Grosse v. Van Milligen, 1987 WL 16242
(N.D.IlL. 1987) ($10,000 in punitive damages against police officer who grabbed the plaintiff,
threw him to the ground, and punched him multiple times); O’Neill v. Krzeminski, 839 F.2d 9,
10 (2" Cir. 1988) ($185,000 in punitive damages against three police officers involved in
severely beating handcuffed plaintiff about his face and head); Lewis v. Downs, 774 F.2d 711,
712-15 (6 Cir, 1985) ($12,000 in punitive damages against police officers for kicking the
plaintiff while she lay handcuffed on the ground and unnecessarily striking her husband and son
with a night stick about the head and mouth); Hinshaw v. Doffer, 785 F.2d 1260, 1269-70 (5*
Cir. 1986) ($4,000 against police officers who repeatedly stomped on the plaintiff's head).

Accordingly, when compared with similar cases awarding punitive damages for police
misconduct, the Court must conclude that the $2,000,000 punitive award here grossly exceeds
the relative reprehensibility of defendants’ conduct. BMW, 517 U.S. at 575 (punitive damages
“should reflect the enormity of [a defendant’s] offense.”).

2. Ratio

The second indicium of an unreasonable or excessive punitive damages award is the
relationship between the amount of the punitive damage award and the harm or potential harm

9


compensatory damages where the plaintiff was arrested, slapped and slammed against a police
car. Another example is Burks v. Harris, 1991 WL 140114 (N.D.IIl. 1991), where the court
upheld an award of $13,000 in compensatory damages where the plaintiff was struck below the
eye with a police radio. See also Panholzer v. San Francisco Bay Area Rapid Transit Dt., 1994 WL
46731 (N.D. Cal. 1994) ($2,000 in compensatory damages where the plaintiff was shackled and
punched in the jaw).

The Court is therefore of the view that considering the totality of the evidence and
comparing this case to similar excessive force cases, the jury award of $15,000 in compensatory
damages is not so flagrantly extravagant as to require remittitur.

B. Punitive Damages

It should be presumed that a plaintiff has been made whole by compensatory damages, so
punitive damages should be awarded only if the defendant’s culpability is so reprehensible to
warrant the imposition of further sanctions to achieve punishment or deterrence. State Farm
Mutual Automobile Ins. Co. v. Campbell, 123 S. Ct. 1513, 1521 (2003). Ina section 1983 case, a
jury may award punitive damages if it finds that the defendant's conduct was “motivated by evil
intent or callous indifference to the plaintiff's federally protected rights.” Marshall v. Teske, 284
F.3d 765, 772 (7% Cir. 2002)

Defendants label the jury’s two-million dollar punitive damage award “unconstitutionally
excessive” and ask the Court to set aside or significantly reduce the award. To support this
request, defendants rehash their arguments regarding the paucity of evidence to corroborate
plaintiff's physical injuries and emotional damages. Defendants do not, however, address

whether the defendants’ conduct warranted an award of punitive damages. Nor do they explain

6


presented with evidence, in the form of plaintiffs own testimony, regarding his physical pain and
suffering following the arrest and they were therefore permitted to make the rational connection
that defendants’ tortious conduct caused plaintiff's injuries. Moreover, even if plaintiff did not
convincingly demonstrate his physical injuries, he certainly offered substantial evidence
regarding his emotional distress flowing from defendants’ activities. See Tullis, 243 F.3d at 1068
(“[a]n award for non-pecuniary loss can be supported, in certain circumstances, solely by a
plaintiffs testimony about his or her emotional distress.”); see also Niebur v. Town of Cicero, No.
98 C 4157, 2002 WL 485698, at *22 (N.D.Ill. 2002)("{T]he Seventh Circuit has not
established any requirement that claims of emotional injury must be supported by corroborating
testimony.”). In addition to his own testimony regarding his post-arrest symptoms, plaintiff
produced three witnesses to corroborate his emotional decline. While the defendants might not
have found plaintiff's testimony in this regard particularly credible, it appears the jury concluded
otherwise. The jury was able to observe plaintiff when he was testifying and they apparently
found his testimony to be sincere and sufficient to convince them that he deserved the award
they gave him. Defendants’ contention that plaintiff did not produce adequate evidence to
justify the jury’s compensatory damage award is therefore without merit.

Additionally, the jury’s $15,000 compensatory damage award is not considerably out of
line with comparable cases in this circuit and in other circuits. For example, in Taliferro v.
Augle, 757 F.2d 157 (7% Cir. 1985), the plaintiff claimed he was arrested for no reason and the
police injured him by destroying his dental plate and knocking out many of his teeth. On
appeal, the court allowed $22,000 in compensatory damages. Similarly, in Terrel v. Village of
University Park, 1994 WL 30960 (N.D.IIl. 1994), the court upheld an award of $5,000 in

5


defenseless victim. The evidence showed that there was no need for defendants to apply any
force against plaintiff, much less the amount of force that they used. The fact that defendants
were Chicago police officers only contributes to the particularly repulsive nature of their offense.
See Taliferro, 757 F.2d at 162 (“Police brutality is an exceedingly serious matter.”). Accordingly,
the Court does not hesitate in labeling defendants’ conduct as reprehensible. See Ibanez v.
Valasco, No. 96 C 5990, 2002 WL 731778 (N.D.IIL 2002).

Defendants’ continued insistence that plaintiff did not produce sufficient evidence to
support his version of the encounter does not effect the Court’s conclusion. This case came
down to a credibility contest, and the Court will not question the jury’s acceptance of plaintiff's
testimony regarding the beating. See, e.g., Fall v. Indiana University Board of Trustees, 33
F.Supp.2d 729, 743 (N.D. Ind. 1998). The jury was free to conclude that defendants’ forceful
and deliberate actions supported an award of punitive damages. Merriweather v. Family Dollar
Stores of Indiana, Inc., 103 F.3d 576, 581 (7 Cir. 1996) (“Evidence that suffices to establish an
intentional violation of protected civil rights also may suffice to permit the fact finder to award
punitive damages, provided the {jury], in its discretionary moral judgment, find that the conduct
merits a punitive award.”).

The Court recognizes however that defendants’ conduct was not neatly so reprehensible
as to justify a total punitive award of $2,000,000. This conclusion is supported by the
considerably lower punitive damage awards in similar cases involving conduct significantly more
violent and reprehensible than here. See Cooper v. Casey, 97 F.3d 914, 916 (7" Cir.

1996) {$22,500 against each defendant prison guard who repeatedly kicked, beat and then
maced the plaintiff); Taliferro, 757 F.2d at 159, 162 ($25,000 in punitive damages against two

8


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

reas wa?

Name of Assined Judge | William J. Hibbler —_| Sta uae ovher
CASE NUMBER 01 C 4010 DATE ofA 03
CASE KENTIN WAITS v. CITY OF CHICAGO,
TITLE MICHAEL PRUSANK, and DANIEL DURST

Un the fllowing box (indicate the pare fling the motion, e. plaintiff defendant, 3d party plaintiff and (b) state briefly the

nature of the motion being presented.)

MOTION:
Plaintiff's Motion for Entry of Judgment (Doc #66, #75)
DOCKET ENTRY: ‘
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) Q Brief in support of motiondue_ ~
@) a Answer brief to motion due___. Reply to answer brief due
(4) Qo Ruling/Hearingon set for at
(6) Qa Status hearing [held/continued to] [set for/re-set for]on__—_set fora
(6) oO Pretrial conference [held/continued to] [set for/re-set for]on___——sset for at_.
7”) a Trial [set for/re-set for]on___—_ at
(8) oO [Bench/Jury trial] [Hearing] held/continuedto____at
iO) o This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]
CUFRCP4(m) C§General Rule 21 CFRCP41(a)(1) OC FRCP41(a)(2).
(10) [Other docket entry]. Plaintiff's Motion for Entry of Judgment is GRANTED in part and DENIED in part.

Judgment is entered in the amount of $15,000.00 in compensatory damages against defendants. The Court proposes that
the jury’s punitive damages verdict of $500,000.00 against Defendant Durst and $1,500,000.00 against Defendant Prusank
should be reduced to $20,000.00 against Defendant Durst and $25,000.00 against Defendant Prusank. Plaintiff shall file
a pleading by June 24, 2003 in which he either accepts or rejects the proposed remittitur. If plaintiff rejects the proposed
remittitur, the Court will order a new trial on the issue of punitive damages. If plaintiff accepts the proposed remittitur,
the Court shall enter judgment in accordance with this Order. Enter memorandum opinion and order.

(11) [For further detail see order on the reverse side of the original minute order.]
No notices required, advised in open court. %
No notices required.

Notices mailed by judge's staff
Notified counsel by telephone.
Docketing to mail notices,

Mail AO 450 form.

Copy to judge/magistrare judge.

umber of notices

JHC

date mailed notice

L¥N09 LOlYISia's"
courtroom ay a's
deputy’s

initials |} 66 -Hd —S-—ety —— :
rate/ tine received i
. naling deputy initials

central Clerk's Office

Ol Us-Us



should search for comparisons solely to determine whether a particular defendant was given “fair
notice” as to its potential liability for particular misconduct, not to determine an acceptable
range into which an award might fall. See Zimmerman v. Direct Fed. Credit Union, 262 F.3d
70,83 (1* Cir. 2001). There is simply no way defendants could have fathomed that their
conduct would subject them to two-million dollars in penalties. This conclusion based on a
review of similar cases awarding far lower punitive damage awards for comparable misconduct.
Because defendants did not have fair notice of the severity of the jury’s punitive damage verdict,
the award must be reduced. BMW, 517 U.S. at 574.

4. Other Reasons for Reduction

The enormity of the total punitive award in this case also warrants consideration of a
factor that was not before the Supreme Court in BMW: defendants are individuals with annual
salaries of approximately 57,000 and $72,000. The Seventh Circuit has directed courts to
consider reducing punitive damages awards if the defendant can show financial hardship. Harris
v. Harvey, 605 F.2d 330 (7" Cir. 1979). The Court finds that the awards against defendants far
exceed their ability to pay. The excess amounts, even if warranted, will serve no punitive
purpose, because the defendants will never satisfy the awards. Damage awards which greatly
exceed the defendant’s ability to pay result in a waste of time both for the jury, and later, the
bankruptcy courts. Kemezy v. Peters, 79 F.3d 33, 35 (7 Cir. 1996); see also Bell v. City of
Milwaukee, 746 F.2d 1205, 1267 (7° Cir. 1984) (concluding that reduction in assessment of
punitive damages against individual defendant from $350,000 to $50,000 considered defendant’s
relative wealth, yet still fulfilled aims of punishment and deterrence). Given the fact that
defendants are personally responsible for satisfying the judgment, the jury’s punitive damage

11


suffered by the plaintiff. BMW, 517 U.S. at 581. The punitive damage award must bear a
“reasonable relationship” to compensatory damages. Id. at 582. A comparison between the
compensatory award and the punitive award is therefore significant. Id.

In this case, the $2,000,000 in punitive damages award is roughly 133 times the amount
of plaintiffs actual harm as determined by the jury. Although the Supreme Court has
consistently rejected the notion that the constitutional line is marked by a simple mathematical
formula, it has noted that an award of more than four times the amount of compensatory
damages might be close to the line of constitutional impropriety. Pacific Mut. Life Ins. Co. v.
Haslip, 499 U.S. 1, 23-24 (1991); BMW, 517 U.S. at 581. Also, the Supreme Court has recently
stated that when compensatory damages are substantial (as is the case here), then a lesser ratio,
perhaps only equal to compensatory damages, can reach the outermost limited of the due
process guarantee. State Farm, 123 S. Ct. at 1524. Here, the 133 to 1 ratio is particularly
spacious, providing further indication that the jury’s award was excessive and must be reduced.

3. Sanctions for Comparable Misconduct

The third indicium of excessiveness articulated in BMW is a comparison between the
award and the civil or criminal penalties authorized or imposed for comparable misconduct.
BMW, 517 U.S. at 575. The Court has reviewed numerous similar cases and has found

tremendous variation in punitive damages awards’ See section 1 above. But a reviewing court

? These include a number of cases where the plaintiff suffered no cognizable physical injuries. See, e.g.,
Grauer y. Donovan, 1996 WL 82462 (N.D.Ill. 1996)($5,000 in punitive damages against police officers even though
the plaintiff's injuries were purely emotional and reputational); King v. Macri, 800 F.Supp. 1157, 1163 (S.D.N.Y.
1992)($125,00 against two police officers involved in scuffle with the plaintiff was not excessive even though the
plaintiff suffered no injury); Mendoza v. City of Rome, 872 F.Supp. 1110 (N.D.N.Y. 1994)($62,000 award for the
plaintiff who suffered only limited injury to his knee, head, and wrists after he was slammed into a police car and
pushed into the lack seat of a vehicle).

10


why jury’s punitive damage award will not achieve the goals of punishment and deterrence.

The Supreme Court has directed courts focus on three general “guideposts” to determine
whether a punitive damage award is excessive. BMW of North America, Inc. y. Gore, 517 U.S.
559 (1996). First, and most importantly, the court must consider the degree of reprehensibility
of the defendant’s conduct. Second, the court looks at the relationship between the amount of
the punitive damage award and the harm or potential harm suffered by the plaintiff. Third, the
court must examine the sanctions imposed in other cases for comparable misconduct. Id. at
574-575, Other factors, such as the deterrent goal of punitive damages and the financial
impact that an award will have on a defendant are relevant as well. See Pacific Mut. Life Ins. Co.
v. Haslip, 499 U.S. 1, 21-22 (1991); TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443,
462 (1993); Merriweather v. Family Dollar Stores of Ind., Inc., 103 F.3d 576, 581 (7 Cir. 1996).

1. Reprehensibility

The first and most important indicium of the reasonableness of a damages award is the
reprehensibility of the defendant’s conduct. BMW, 517 U.S. at 575. The Supreme Court has
instructed courts to determine the reprehensibility of a defendant by considering whether: the
harm caused was physical as opposed to economic; the tortious conduct evinced an indifference
to or a reckless disregard of the health or safety of others; the target of the conduct had financial
vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm
was the result of intentional malice, trickery, or deceit, or mere accident. State Farm, 123 St. Ct.
at 1521.

Placed on this scale, defendants’ conduct is easily characterized as reprehensible. The
jury was offered evidence describing a malicious and premeditated battery inflicted upon a

7



therapist testified that after the beating plaintiff became depressed, unable to concentrate at
work, and fearful.

Defendants argue that the jury’s large compensatory and punitive damage awards are not
rationally connected to the evidence. Defendants claim that plaintiff failed to produce evidence
of physical injury resulting ftom the arrest and did not present credible evidence regarding his
allegations of emotional distress. Thus, defendants maintain that the jury’s verdict could only
have been the result of bias, passion, or prejudice rather than based upon the evidence presented
at trial.

In response, plaintiff asks the Court to defer to the jury’s considerable discretion to
fashion appropriate awards. Plaintiff also argues that the evidence accepted by the jury justifies
a substantial punitive damage award because defendants’ conduct was particularly reprehensible.
Plaintiff further maintains that the award, while high, falls within the range of acceptable awards
in comparable cases and that jury’s award is necessary to deter and punish defendants.

II. DISCUSSION
The jury’s damage calculations are entitled to great deference, and the Court may only

me

vacate the juty’s verdict if the award is either “monstrously excessive,” “shocks the judicial
conscience,” “has no rational connection to the evidence,” or “clearly appears to be the result of
passion or prejudice.” American National Bank & Trust Company of Chicago v. Regional
Transportation Authority, 125 F.3d 420, 437 (7 Cir. 1997); McNabola v. Chicago Transit Auth.,
10 F.3d 501, 516 (7 Cir, 1993).

Compensatory and punitive damages, although usually awarded at the same time by the

same decision-maker, serve different purposes. Cooper Industries, Inc. v. Leatherman Tool Group,

3


schedule on plaintiff's motions, with defendants’ objections to the amount of judgment due by
December 13, 2002, and plaintiffs reply due by December 27, 2002. The parties have
submitted those filings’ and the issues with respect to the proper amount of the judgment are
now ripe for resolution. For the following reasons, the Court concludes that the evidence
sufficiency supports the compensatory damages award; however, the punitive damages award
must be reduced.
I. EVIDENCE PRESENTED AT TRIAL

On July 23, 2000, plaintiff was arrested at his home for spraying water on a Chicago
police officer on the previous afternoon. Among the arresting officers were defendants Durst
and Prusank. Plaintiff testified that during transport to the police station, Durst made
threatening gestures and comments. Once inside the station, plaintiff testified that he was led
into a small interrogation room and his hands were cuffed behind his back. Plaintiff then
explained that Durst and Prusank entered the room, closed the door, and began berating
plaintiff for spraying water on the police officer. Plaintiff then testified that Durst proceeded to
strike him fifteen to twenty times in the face, head and neck with his open hand and kneed him
in the groin. Plaintiff further testified that Prusank, who was Durst’s superior officer, did
nothing to stop the assault. After defendants finished their interrogation, plaintiff was
processed and released the following morning. Plaintiff did not present evidence (other than his
own testimony) regarding any physical injuries suffered during the attack, but did offer evidence

concerning his emotional distress following the attack. Specifically, plaintiff's friends and

'Defendants’ also filed a reply in support of their objections, to which plaintiff then filed a response.
Neither defendant nor plaintiff sought leave to file additional materials beyond what the Court directed in its
December 3, 2002 Order. As such, the Court will not consider defendants’ reply and plaintiff's response.

2



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
KENTIN WAITS, ) a
)
Plaintiff ) | One TEp
) UN
v. ) 8 2009
) NO. 01 C 4010
CITY OF CHICAGO, MICHAEL PRUSANK, )
and DANIEL DURST, ) The Honorable William J. Hibbler
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Currently pending before the Court are plaintiffs motions for entry of judgment.
Plaintiff filed this action against the City of Chicago and two police officers, alleging the use of
excessive force in violation of his civil rights under 42 U.S.C. § 1983, and a violation of the
Illinois Hate Crimes Act, 720 ILCS 5/12-7.1. The case proceeded to jury trial on October 21,
2002. A week later, the jury began is deliberations. On November 1, 2002, the jury returned a
verdict in favor of plaintiff and against defendants on the excessive force claim, in the amount of
$15,000 in compensatory damages, and $500,000 against Officer Durst, and $1,500,000 against
Sergeant Prusank in punitive damages. Additionally, the jury found in favor of defendants and
against plaintiff on the Hate Crime claim. Because I was unavailable at that time to receive the
verdict, the district judge sitting in my stead advised the parties to await my return for entry of
judgment. Nevertheless, plaintiff proceeded to file two separate motions seeking to have
judgment entered on the jury verdict as rendered. Not wanting to delay resolution of this

matter any further, the Court issued a minute order on December 3, 2002, setting a briefing

¢3


award in this case is far in excess of what is reasonably necessary to punish and deter.

In sum, an application of the BMW guideposts to the facts of this case, especially in light
of the substantial compensatory damages award, would justify a punitive damages award at or
near the amount of compensatory damages. The punitive awards of $500,000 and $1,500,000
were neither reasonable nor proportionate to the wrong committed. The Court will grant
defendants’ motion for a remittitur and reduce plaintiff's punitive award to $20,000 against
Durst and $25,000 against Prusank.? This award is in line with comparable cases and will serve
the goals of punishment and deterrence.

The Court is mindful that it may not arbitrarily reduce plaintiffs punitive damage award.
Rather, the proper procedure is to give the plaintiff the choice of either accepting the remittitur,
or of rejecting the remittitur and forcing a new trial limited solely on the issue of punitive
damages. McKinnon v. City of Berwyn, 750 F.2d 1383, 1391 (7" Cir. 1984); EEOC v. Mid-
Continent Security Agency, Inc., 2001 WL 800089 at * 6(N.D.Iil. 2001). Plaintiff shall inform
the Court of his decision to accept or reject the proposed remittitur within twenty days of this
Order.

Ill. CONCLUSION

Defendants’ motion for a remittitur of the compensatory damages award is DENIED.
Defendants’ motion for remittitur of the punitive damages award is GRANTED. Plaintiff shall
file a pleading within 20 days of this Order in which he either accepts or reject the proposed

remittitur of the jury’s punitive damage award. If accepted, a punitive damage award of $20,000

3The award against Prusank is kept higher than the award against Durst to respect the jury’s determination
that Prusank, as Durst’s superior officer, is deserving of more punishment and deterrence.

12