United States District Court, D. Colorado
JAYSON M. OSLUND, Plaintiff,
C/O MULLEN, in his official and individual capacity, Defendant.
ORDER FOR A NEW TRIAL
Kathleen M Tafoya United States Magistrate Judge
matter is before the court sua sponte pursuant to
Fed.R.Civ.P. 59(d). As of the date of this Order, Defendant
has not filed a motion for new trial as is permitted by
Fed.R.Civ.P. 59, although the time within which he may do so
has not yet expired. Rule 59(d) authorizes a trial court to
order a new trial on its own initiative for any reason for
which it might have granted a new trial on motion of a party,
but limits this authority by requiring such action be taken
within twenty-eight days after entry of judgment. The
original judgment in this case [Doc. No. 120] was entered on
March 9, 2018. Hence, under Rule 59(d), this court's
Order for a New Trial is authorized by the
Rule. Kain v. Winslow Mfg., Inc., 736
F.2d 606, 608 (10th Cir. 1984); Kanatser v. Chrysler
Corp., 199 F.2d 610 (10th Cir. 1952). The court finds
further that it is not required to provide notice and an
opportunity to be heard to the parties prior to entry of this
Order for a New Trial because there is no pending Rule 59
motion and therefore this Order is not based upon “a
reason not stated in the motion.” See Fed. R.
Civ. P. 59(d).
district court has broad discretion in deciding whether to
grant [ ] a new trial.” Harvey By & Through
Harvey v. Gen. Motors Corp., 873 F.2d 1343, 1346 (10th
Cir. 1989). A federal court may set aside a jury verdict if
the ends of justice require it. Holmes v. Wack, 464
F.2d 86, 88-89 (10th Cir. 1972).
years ago, the Supreme Court of the United States determined
[t]he motion for a new trial may invoke the discretion of the
court in so far as it is bottomed on the claim that the
verdict is against the weight of the evidence, that the
damages are excessive, or that, for other reasons, the trial
was not fair . . . .
Montgomery Ward & Co. v. Duncan, 311 U.S. 243,
251 (1940). Although motions for a new trial are generally
committed to a court's discretion, they are disfavored
and should be granted with “great caution.”
Richins v. Deere and Co., 231 F.R.D. 623, 625
(D.N.M. 2004); Guidance Endodontics, LLC v. Dentsply
Int'l, Inc., 749 F.Supp.2d 1235, 1256 (D.N.M. 2010).
jury's determination of damages is considered inviolate
unless an award is so excessive as to shock the judicial
conscience and raises an irresistible inference that passion,
prejudice, corruption or other improper cause invaded the
trial. Malandris v. Merrill Lynch, Pierce, Fenner &
Smith Inc., 703 F.2d 1152, 1168 (10th Cir. 1981);
Xiong v. Knight Transportation, Inc., 77 F.Supp.3d
1016, 1020-21 (D. Colo. 2014), aff'd sub nom. Pahoua
Xiong v. Knight Transportation, Inc., 658 F. App'x
884 (10th Cir. 2016). See also Blangsted v.
Snowmass-Wildcat Fire Prot. Dist., 642 F.Supp.2d 1250,
1256 (D. Colo. 2009). A verdict will not be set aside on this
basis, however, unless it is so plainly excessive as to
suggest that it was the product of such passion or prejudice
on the part of the jury. Id. Such bias, prejudice or
passion can be inferred from excessiveness.
Malandris, 703 F.2d at 1168. See also Fitzgerald
v. Mountain States Tel. & Tel. Co., 68 F.3d 1257,
1262 (10th Cir. 1995); Wells v. Colo. College, 478
F.2d 158, 162 (10th Cir. 1973). Focus should be on
“whether the compensatory award was excessive in
relation to the injury[.]” McInerney v. United Air
Lines, Inc., 463 F. App'x 709, 723 (10th Cir. 2011)
(quoting Malandris, 703 F.2d at 1169; Fox v.
Pittsburg State Univ., 257 F.Supp.3d 1112, 1150 (D. Kan.
2017)). Cases analyzing the grant of a new trial where
damages shock the conscience with their excess recognize the
principle that if the court determines that the verdict was
the result of passion or prejudice, or for any other reason
it appears that the jury erred or abused its discretion on
not only on the issue of damages but also on the issue of
liability, the court must
unconditionally order a new trial and cannot give the
plaintiff the option to accept a lesser amount.
Malandris, 703 F.2d at 1168 (emphasis added).
See also Minneapolis St. Paul and Sault Ste. Marie Ry. Co. v.
Moquin, 283 U.S. 520, 521-22 (1931) (“In actions
under the federal statute no verdict can be permitted to
stand which is found to be in any degree the result of
appeals to passion and prejudice.”); Curtis
Publishing Co. v. Butts, 388 U.S. 130, 160 (1967)
(“a verdict based on jury prejudice cannot be sustained
even when punitive damages are warranted”). If the
court finds that an irresistible inference that passion,
prejudice, corruption or other improper cause invaded the
trial, “then the court must order a new trial on all
issues because it is impossible to determine the degree to
which these factors affected the jury generally and therefore
influenced the determination of liability.” Cook v.
Rockwell Int'l Corp., 564 F.Supp.2d 1189, 1201 (D.
Colo. 2008), rev'd on other grounds, 618 F.3d
1127 (10th Cir. 2010). See also Higgs v. Dist. Ct.,
713 P.2d 840, 860-61 (Colo. 1985); Malandris, 703
F.2d at 1168; Mason v. Texaco, Inc., 948 F.2d 1546,
1560 (10th Cir. 1991).
case, the jury awarded the Plaintiff compensatory damages of
$5, 000, 000.00 on a record supporting, at best, only nominal
damages. Additionally, the jury awarded $1, 000, 000.00 in
punitive damages on a record which was bereft of any evidence
of wrongdoing except that based solely on the testimony of an
agitated convicted felon who had known the Plaintiff for only
one week, who knew nothing about Plaintiff's seizure
disorder nor his use of Coumadin, a blood thinner causing
excessive bleeding of any skin laceration, nor the
Plaintiff's physical condition at the time his second
synopsis of the core evidence is as follows:
late morning on March 7, 2013, the Plaintiff, Jayson Oslund,
suffered a seizure during which he fell backward from a full
standing position and landed on his head on the cement floor
of the Sterling Correctional Facility (“SCF”).
Fellow inmate Ernest Montoya, who was with Plaintiff at the
time, testified that Mr. Oslund “just fell out and then
busted his head on the cement.” Plaintiff was taken to
the medical unit where he was examined, his bleeding was
stopped and his scalp wound stitched. Dr. Maurice Fauvel, a
staff physician at SCF, testified that when he first saw the
Plaintiff that day, Mr. Oslund had a laceration on his head
consistent with falling backward onto concrete. Dr. Fauvel
testified that the Plaintiff knew he had a seizure disorder
but Plaintiff refused to take medications which had been
prescribed for him to control his seizures. After this
seizure, Dr. Fauvel administered anti-seizure medication;
however, he explained that such medications are not instantly
effective, but rather have to build up in the system of the
patient. Dr. Fauvel noted that Plaintiff had a hematoma on
his head from swelling and bruising that the doctor found to
be predictable because of Plaintiff's use of blood
thinners to manage a clotting disorder.
activities which spawned this case arose five to six hours
subsequent to Plaintiff's injury-causing seizure and
fall, after Plaintiff left the medical unit in a wheelchair
and was transported to his new ground floor cell.
Charles Garlick, Plaintiff's cellmate of one week,
testified that earlier in the day, before either of Mr.
Oslund's seizures, Mr. Oslund had been feeling ill and
had left early from his job in the kitchen. Mr. Garlick
described Plaintiff as a large man who weighed over 200
pounds. At some point one of the guards told Mr. Garlick that
Plaintiff had suffered a seizure and had hit his head on the
concrete and was “in medical.” When Mr. Garlick
next saw Plaintiff, Mr. Oslund was in a wheelchair with gauze
bandaging around his head, and he appeared groggy and
disoriented. Mr. Garlick was tasked with moving his and
Plaintiff's belongings from the upper tier cell where
they had been housed, to a cell on the ground floor to
accommodate Mr. Oslund's need to use a wheelchair.
Eventually Plaintiff was assisted out of the wheelchair and
was placed in a sitting position on a metal locker box which
was located in the center of the new cell. Mr. Garlick was
busy with the moving, but when he next looked at Plaintiff,
Mr. Oslund was undergoing another “full blown
seizure.” Mr. Garlick testified, “it looked like
he was trying to hit his head on either the toilet or the
corner of the box.”
that same time, Mr. Montoya, who was unable to see Mr.
Oslund's cell located one tier below him, testified that
he heard a “large crash such as him [Oslund] falling
over or something.” Mr. Garlick testified that when he
saw Plaintiff banging his body and head around in the cell,
he came up behind Mr. Oslund and tried to hold him so that
Mr. Oslund's thrashing would be against Garlick's
body and not the hard surfaces in the cell. Mr. Garlick, who
did not know about Plaintiff's use of blood thinners, was
distressed about the amount of blood coming from Mr. Garlick
as he thrashed against his body. Mr. Garlick testified that
he was covered in Plaintiff's blood. Mr. Garlick started
calling for help, leaving Mr. Oslund alone and flailing
within the cramped confines of the cell while Mr. Garlick
left the cell to get help. Several officers almost
immediately responded. Mr. Garlick testified that Defendant
Officer Mullen came into the cell, took Mr. Oslund from Mr.
Garlick and then “hits him against the wall. He slides
down the wall, hits the floor and then he [Officer Mullen]
straddles him [Plaintiff] and tells him to stop resisting,
stop fighting.” Mr. Garlick said that blood was oozing
through Plaintiff's gauze bandage and that there was
blood on the wall from the bandage and that it smeared as
Plaintiff was taken down to the ground by Mr. Mullen. Mr.
Garlick and Mr. Montoya testified that after Mr. Oslund had
been taken to the medical unit, they saw quite a lot of blood
in the cell. Both Mr. Garlick and Mr. Montoya were distressed
by orders given to them to clean up the blood from the cell.
Mr. Garlick, however, was the only inmate who actually
witnessed Plaintiff's seizure and the responses of the
various corrections officers because the other inmates were
locked in their cells awaiting completion of the 4:00 p.m.
officers who responded during Plaintiff's second seizure,
had known from shift briefing that Plaintiff had suffered a
seizure that morning and that he had sustained injuries
during that seizure. Testimony from all the other eye
witnesses was that two correctional officers, Officer Mullen
and Officer Cynthia Cook, came into the cell with Mr. Oslund
and Mr. Garlick and that both officers were physically close
to Mr. Oslund and were keeping Mr. Oslund on the floor on his
side/back to try to keep him from either falling or ...