Oslund v. Mullen

          ORDER FOR A NEW TRIAL

          KATHLEEN M TAFOYA, UNITED STATES MAGISTRATE JUDGE

         This 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.^[1] 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).

         “A 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).

         Seventy-eight years ago, the Supreme Court of the United States determined that

[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).

         A 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 Fed.Appx. 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 Fed.Appx. 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.^[2] 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).

         In this 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 seizure commenced.

         A brief synopsis of the core evidence is as follows:^[3]

         In the 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.^[4]

         The 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.

         Inmate 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.”

         About 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. “count.”

         All the 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 ...