Doe et al v. Board of Education et al
Filing
495
ORDER: Defendant Hasak's first Motion 463 for New Trial or to Alter Judgment is GRANTED to the extent Mr. Hasak seeks an amended judgment and DENIED to the extent he seeks a new trial. The Clerk is requested to issue an Amended Judgment reduci ng the past economic damages award to $0. Defendant Hasak's second Motion 464 for New Trial is DENIED. Plaintiffs' Motion 488 for Bond is GRANTED in part and DENIED in part. Mr. Hasak is ordered to post a bond in the amount of $50,000. Plaintiff's Objection to Defendant's Sur-Reply is SUSTAINED.. Signed by Judge Janet Bond Arterton on 11/24/15. (Harris, J)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN DOE, by and through his Parents and next
friends, Mr. & Mrs. Robert Doe; and MR. ROBERT
DOE; MRS. ROBERT DOE,
Plaintiffs,
v.
DARIEN BOARD OF EDUCATION, ZACHARY
HASAK, MELISSA BELLINO, and LAURA CONTE,
Defendants.
Civil No. 3:11cv1581 (JBA)
November 24, 2015
RULING ON DEFENDANT HASAK’S RULE 59 MOTIONS AND PLAINTIFFS’
MOTION FOR SECURITY FOR COSTS
Defendant Hasak moves, pursuant to Federal Rule of Civil Procedure 59, for a
new trial, or in the alternative, an amended judgment, based on two grounds: (1) the
jury’s award of $90,000 in past economic damages [Doc. # 463]; and (2) the Court’s
response to a jury question regarding the scope of John Doe’s substantive due process
rights [Doc. # 464]. Plaintiffs move [Doc. # 488] for an order requiring Mr. Hasak to post
a bond that covers the judgment as well as their accrued and prospective attorneys’ fees
and costs. For the following reasons, Defendant Hasak’s first motion [Doc. # 463] is
granted in part and his second motion [Doc. # 464] is denied. Plaintiffs’ motion [Doc.
# 488] is granted in part and denied in part.
I.
Background
Familiarity with the background of this case is presumed. Briefly, Plaintiffs alleged
that Defendant Zachary Hasak sexually abused John Doe, a then-twelve year old boy with
Down Syndrome, while Mr. Hasak was employed by the Darien school system at
Tokeneke Elementary School as John’s one-on-one paraprofessional aide. After eight-
days of evidence, the jury began its deliberations. On August 3, 2015, during those
deliberations, the jury sent a note to the Court seeking clarification of the jury charge.
Specifically, the jury asked: “The verdict form says #1 have Does proved that Mr. Hasak
sexually abused John? However, Count 5, 6, and 7 don’t seem to talk about sexual abuse.
Count 5 talks about assault and battery, but that [pre]supposes that there was a ‘touch’
involved. What if we believe it’s just exposure? Which count would that fall under, if at
all?”
After discussion with counsel, the Court responded with the following
supplemental instruction:
Count 5, in which plaintiffs have claimed collectively assault and battery,
does not differentiate between these two terms in this case. Assault and
battery differ insofar as assault does not require contact; battery does.
Assault is intentional conduct which is intentionally done for the purpose
of putting another person in apprehension of an immediate harmful or
offensive contact or is done with the knowledge that that apprehension is
substantially certain to result.
The allegation of intentional exposure of genitalia by Mr. Hasak to John is
within the meaning of “sexual abuse” as used in this case. Whether you
find sexual abuse or not is entirely up to you and the fact that I have
attempted to add clarification in light of your question is in no way
intended to direct your deliberations or influence your verdict.
The following day, the jury returned its verdict [Doc. # 460], finding Mr. Hasak
liable on Count III for violations of John’s substantive due process rights, and not liable
on all other counts. The jury awarded Plaintiffs $90,000 in past economic damages and
$10,000 in non-economic damages. The verdict form did not include any factual findings
other than a finding that Mr. Hasak had “sexually abused” John and that John had been
proximately harmed by that abuse.
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II.
Discussion 1
A. Past Economic Damages
Defendant Hasak contends that he is entitled to “a new trial as to past economic
damages only, because the amount awarded for . . . the cost of treatment provided by Dr.
Cornelia Gallo would provide the plaintiff with a windfall recovery, in so far [sic] as Dr.
Gallo’s medical bills have already been paid by the Darien Board of Education pursuant to
[a] mediation agreement.” (First Mot. for New Trial [Doc. # 463] at 1.) Plaintiffs do not
dispute that the Board of Education paid Dr. Gallo’s bills, but they “urge that reducing the
judgment by $90,000 would only unjustly enrich defendant Hasak.” (Opp’n [Doc. # 472]
at 9.)
As discussed by the parties in their supplemental briefs, 2 this issue is determined
by application of the collateral source rule, which federal courts apply in § 1983 actions.
Under Federal Rule of Civil Procedure 59(a)(1)(A), “[t]he court may, on motion,
grant a new trial on all or some of the issues—and to any party . . . after a jury trial, for
any reason for which a new trial has heretofore been granted in an action at law in federal
court.” ). “A new trial must be granted if the court determines 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 to the party moving.” Santa Maria v. Metro–North Commuter R.R., 81
F.3d 265, 273 (2d Cir. 1996). The grant of a new trial is also appropriate when, “in the
opinion of the district court, the jury has reached a seriously erroneous result or . . . the
verdict is a miscarriage of justice.” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124,
133 (2d Cir. 1998).
1
At the status conference held on the record on October 21, 2015, the Court
directed the parties to file supplemental briefs by November 2, 2015 and replies if
necessary on November 12, 2015. Both parties filed supplemental briefs on November 2.
Defendant filed his reply on November 11 and Plaintiffs filed their reply on November
12. Defendant then filed an additional brief on November 12 which he styled as a “surreply.” Plaintiffs object to this filing on the grounds that Defendant did not seek the
2
3
See Gill v. Maciejewski, 546 F.3d 557, 564–65 (8th Cir. 2008) (quoting Perry v. Larson, 794
F.2d 279, 286 (7th Cir. 1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 231–32
(1970))); Hartnett v. Reiss S. S. Co., 421 F.2d 1011, 1016 n.3 (2d Cir. 1970) (“The general
rule in the federal courts is that the collateral source rule is applied. . . .”). But see Carswell
v. Bay Cty., 854 F.2d 454, 458 (11th Cir. 1988) (upholding district court’s application of
state common law version of collateral source rule in § 1983 case without discussion of
whether state or federal common law should be applied).
The collateral source rule “holds that the defendant’s liability shall not be reduced
merely because the plaintiff’s net damages are reduced by payments received from” a
wholly independent source. Id.; see Restatement (Second) of Torts § 920A(2) (“Payments
made to or benefits conferred on the injured party from . . . sources [other than the
tortfeasor or a person acting for him] are not credited against the tortfeasor’s liability,
although they cover all or a part of the harm for which the tortfeasor is liable.”). “The
rationale for the . . . rule is to prevent the defendant from receiving a windfall by avoiding
liability for damages suffered by the plaintiff as a result of the defendant’s conduct.”
Henderson v. Peterson, No. C 07-2838 (SBA) (PR), 2011 WL 2838169, at *4 (N.D. Cal. July
15, 2011).
“A ‘collateral source’ is usually defined as a payment that is independent of the
defendant and one that the defendant played no part in creating.” Jacob A. Stein, 2 Stein
on Personal Injury Damages § 13.5 (3d ed. 2015). “Typically, the doctrine applies to such
independent sources as insurance policies maintained by plaintiff or an innocent third
Court’s permission to file this brief. Plaintiffs’ Objection [Doc. # 493] is SUSTAINED.
The Court has not considered Mr. Hasak’s “sur-reply” in reaching this decision.
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party, employment wages and benefits, gratuities, social security benefits, and welfare
payments.” N. Atl. Fishing, Inc. v. Geremia, 153 B.R. 607, 611 (D.R.I. 1993). Thus, for
example, “where a doctor provide[s] medical services to his cousin, without charge, and
the defendant ha[s] nothing to do with the doctor’s provision of services, the treatment
constitute[s] a collateral source. Similarly, when a husband buys life insurance, he has
established a fund meant to protect his family from want, not to immunize the
wrongdoer who causes his death. . . . Funds that are created because of the plaintiff’s
foresight or because his or her friends or relatives assisted him or her are of no benefit to
the tortfeasor.” Stein on Personal Injury Damages § 13.5.
However, a payment is not “collateral” if it is made “by any person in
compensation of a claim for a harm for which others are liable as tortfeasors . . . whether
or not the person making the payment is liable to the injured person and whether or not
it is so agreed at the time of payment or the payment is made before or after judgment.”
Restatement (Second) of Torts § 885(3); see Id. § 920A(1) cmt. a (“[A] payment by
another tortfeasor of an amount for which he is jointly liable with the defendant or even
by one who is not actually liable to the plaintiff” “has the effect of reducing” the
defendant’s tort liability if the person making the payment “is seeking to extinguish or
reduce the obligation.”). Here, the Board of Education, although ultimately found not
liable, agreed before judgment was entered against Mr. Hasak to pay Dr. Gallo’s bills for
treatment provided to John following the alleged abuse. (See Mediation Agreement [Doc.
# 327-36] ¶ 1.) The Board’s payment of Dr. Gallo’s fees was not “collateral” within the
meaning of the law; it was related to and not independent of Mr. Hasak’s liability.
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Therefore, the Court will reduce the judgment against Mr. Hasak to $10,000, covering
only non-economic damages. A new trial on damages, however, is unnecessary.
B. Substantive Due Process
Defendant Hasak next moves for a new trial “insofar as the court’s answer to a
jury question deprived Mr. Hasak of a fair trial by allowing the jury to reach a verdict that
is contrary to law.” (Second Mot. for New Trial [Doc. # 464] at 1.) Mr. Hasak contends
that the Court erred in instructing the jury that “intentional exposure of genitalia by Mr.
Hasak to John is within the meaning of ‘sexual abuse’” because as a matter of law
intentional exposure of genitalia by a teacher to a student does not suffice to make out a
colorable violation of the child’s substantive due process right to bodily integrity. (Id. at
6.)
The Second Circuit has recognized that the right to bodily integrity is a liberty
interest protected by the Fourteenth Amendment, “‘that bodily integrity is necessarily
violated when a state actor sexually abuses a schoolchild,’” and that in this context, a
school employee is a “state actor.” United States v. Giordano, 442 F.3d 30, 47 (2d Cir.
2006) (quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451–52 (5th Cir. 1994)). The
question then is what constitutes “sexual abuse.” Relying in part on the Eighth Circuit’s
decision in Haberthur v. City of Raymore, Mo., 119 F.3d 720, 723 (8th Cir. 1997),
Defendant asserts that “the substantive due process right to bodily integrity requires that
there be some type of ‘sexual fondling and touching or other egregious sexual contact.’”
However, as Plaintiffs note, Haberthur does not require contact; it merely states that
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sexual fondling and touching suffices to make out a claim of violation of the right to
bodily integrity.
In the context of interpreting and applying the Sentencing Guidelines, the Eighth
Circuit, along with the Fourth and Eleventh Circuits has defined the term “sexual abuse
of a minor” with reference to its “ordinary, contemporary, common meaning.” United
States v. Sonnenberg, 556 F.3d 667, 671 (8th Cir. 2009) (internal quotation marks
omitted). As explained by the Eleventh Circuit in United States v. Padilla-Reyes, 247 F.3d
1158, 1163–64 (11th Cir. 2001), in rejecting the defendant’s contention that the term
“sexual abuse” is ambiguous “because it is not clear whether physical contact is a
necessary element of the offense”:
the ordinary meaning of the phrase [“sexual abuse of a minor”] includes
acts that involve physical contact between the perpetrator and the victim
as well as acts that do not. An examination of the relevant definitions . . .
reveals that “abuse” does not connote only physically injurious acts.
Furthermore, the modifier “sexual” does not limit the phrase’s scope to
abuse of the physical variety. Rather than describing the form of the abuse
as a “sexual” physical contact, we think the word “sexual” in the phrase
“sexual abuse of a minor” indicates that the perpetrator’s intent in
committing the abuse is to seek libidinal gratification. In other words, the
phrase “sexual abuse of a minor” means a perpetrator’s physical or
nonphysical misuse or maltreatment of a minor for a purpose associated
with sexual gratification.
This reading conforms with common usage, which often employs the term
to describe nonphysical “sexual abuse,” as well as comprehending the
more technical usage employed by researchers in the field. The conclusion
that “sexual abuse of a minor” is not limited to physical abuse also
recognizes an invidious aspect of the offense: that the act, which may or
may not involve physical contact by the perpetrator, usually results in
psychological injury for the victim, regardless of whether any physical
injury was incurred.
7
Id. (internal citations omitted); see Sonnenberg, 556 F.3d at 671 (adopting the Eleventh
Circuit’s definition); United States v. Diaz-Ibarra, 522 F.3d 343, 351–52 (4th Cir. 2008)
(same).
In a similar vein, several federal courts have held that children in foster homes
have “a substantive due process right to be free from unreasonable and unnecessary
intrusions on both [their] physical and emotional well-being.” B.H. v. Johnson, 715 F.
Supp. 1387, 1395 (N.D. Ill. 1989) (emphasis added). As then Chief Judge Grady in the
Northern District of Illinois reasoned:
[This] conclusion is grounded in common sense: A child’s physical and
emotional well-being are equally important. Children are by their nature
in a developmental phase of their lives and their exposure to traumatic
experiences can have an indelible effect upon their emotional and
psychological development and cause more lasting damage than many
strictly physical injuries.
Id.; see Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 675 (S.D.N.Y. 1996) aff’d sub
nom. Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997) (same).
Although the Court acknowledges that there is some non-binding authority for
the proposition that “conduct falling shy of sexual molestation or assault does not give
rise to an actionable § 1983 substantive due process claim,” Gilliam v. USD No. 244 Sch.
Dist., 397 F. Supp. 2d 1282, 1287–88 (D. Kan. 2005); see also Abeyta By & Through
Martinez v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d 1253, 1255–56 (10th Cir.
1996) (“There were no allegations, however, of sexual assault, molestation, or touching of
any sort. We have found no case in a school context that held conduct falling shy of
sexual molestation or assault constitutes constitutionally actionable sexual harassment.”);
Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (holding that a
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teacher’s act of rubbing a student’s stomach while he made suggestive remarks to her did
not violate the student’s right to bodily integrity and stating that it is inconceivable that a
“single slap” could shock the conscience), it does not find this authority persuasive. Like
the Seventh Circuit in White v. Rochford, 592 F.2d 381, 384 (7th Cir. 1979), this Court
“see[s] no reason in either logic or experience to require . . . physical violence as a
necessary prerequisite to suit under § 1983.” Id. (internal quotation marks omitted); see
also Mendez Through Mendez v. Rutherford, 655 F. Supp. 115, 118 (N.D. Ill. 1986)
(rejecting argument that a claim for emotional distress is not cognizable under § 1983).
Rather, the Court finds that as a matter of law, a child’s substantive due process right to
bodily integrity may be violated by a teacher’s sexual abuse, even if that abuse does not
involve physical contact with the child.
C. Bond to Cover Attorneys’ Fees
Plaintiffs seek an order requiring Mr. Hasak to post a bond pending his appeal
that is large enough to cover the judgment against him as well as Plaintiffs’ accrued and
prospective attorneys’ fees and costs. As a preliminary matter, because Mr. Hasak has not
sought a stay pending appeal, Plaintiffs’ request for a bond covering the judgment and
accrued attorneys’ fees is premature.
The same is not true of Plaintiffs’ request for a bond covering prospective costs of
Mr. Hasak’s appeal. That motion is governed by Federal Rule of Appellate Procedure 7,
which provides that a “district court may require an appellant to file a bond or provide
other security in any form and amount necessary to ensure payment of costs on appeal.”
See Adsani v. Miller, 139 F.3d 67, 70 n.2 (2d Cir. 1998) (explaining that a supersedeas
bond, covered by Rule 7 “is retrospective[,] covering sums related to the merits of the
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underlying judgment (and stay of its execution), whereas a ‘cost bond,’” governed by Rule
8, “is prospective, relating to the potential expenses of litigating an appeal.”).
The Second Circuit has held that “costs,” as used in FRAP Rule 7 are not limited
to costs as defined by FRAP Rule 39. 3 Id. at 75. Rather, where, as here, 4 “a federal statute
includes attorney’s fees ‘as part of the costs’ which may be taxed upon appeal, the district
court may factor those fees into its imposition of the bond for costs.” Id. at 79.
Plaintiffs, relying on Adsani, contend that the Court should impose a bond
requirement of $75,000 to $125,000 to cover their anticipated appellate costs and fees.
(Pls.’ Mot. for Bond [Doc. # 488] at 6.) Defendant Hasak opposes Plaintiffs’ motion,
arguing that Adsani is distinguishable because in Adsani, “the court ordered that the
plaintiff post a bond to cover the awarded attorney’s fees while her appeal was pending,
pursuant to FRAP 7,” whereas here, no attorneys’ fees have been awarded yet. (Def.’s
Opp’n to Bond [Doc. # 489] at 6.) Defendant Hasak misunderstands the facts of Adsani.
While it is true that the court had already awarded retrospective attorneys’ fees, the bond
at issue in Adsani was a cost bond, which covered anticipated fees and costs of Adsani’s
appeal, not a supersedeas bond that covered retrospective fees and costs. See Adsani, 139
F.3d at 70 (“The district court granted [defendants’] motion [under Rule 7], requiring
Rule 39 defines taxable costs of appeal to include costs of: “preparation and
transmission of the record”; “the reporter’s transcript, if needed to determine the appeal”;
“premiums paid for a supersedeas bond or other bond to preserve rights pending appeal”;
and “the fee for filing the notice of appeal.”
3
Plaintiffs claim attorneys’ fees under 42 U.S.C. § 1988, which provides that “[i]n
any action or proceeding to enforce a provision of section[] [1983] . . . the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.”
4
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Adsani to post a bond of $35,000 to cover the costs of appeal and a possible award of
attorney’s fees associated with that appeal.” (internal quotation marks omitted)). That the
court had already awarded retrospective attorneys’ fees is thus of no moment. Adsani is
not distinguishable from this case.
In determining whether the imposition of a cost bond is appropriate under Rule 7,
courts consider four factors: “(1) the appellant’s financial ability to post a bond, (2) the
risk that the appellant would not pay appellee’s costs if the appeal loses, (3) the merits of
the appeal, and (4) whether the appellant has shown any bad faith or vexatious conduct.”
Stillman v. InService Am., Inc., 838 F. Supp. 2d 138, 140 (S.D.N.Y. 2011) (internal
quotation marks omitted). Here, while Mr. Hasak has not shown bad faith or vexatious
conduct, for the reasons discussed above in reference to Mr. Hasak’s Rule 59 motions, the
Defendant has not persuaded the Court that the grounds for his appeal are meritorious.
Further, given Mr. Hasak’s on-the-record representations to the Court regarding his
finances during the October 21, 2015 conference call, there is a real risk that he would not
be able to pay Plaintiffs’ costs if his appeal is denied. Although Mr. Hasak’s counsel's
statements during the conference call indicate that it would be financially difficult for him
to obtain a bond, “without any showing of [his] financial hardship,” the Court cannot
conclude that the imposition of a bond would be an “impermissible barrier to appeal.”
Adsani, 139 F.3d at 79. Nonetheless, in light of Mr. Hasak’s representations regarding his
financial situation, the Court will impose a bond in an amount less than Plaintiffs seek.
Mr. Hasak will be required to post a bond in the amount of $50,000 to cover Plaintiffs’
appellate costs and fees.
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III.
Conclusion
For the foregoing reasons, Defendant Hasak’s first Motion [Doc. # 463] for New
Trial or to Alter Judgment is GRANTED to the extent Mr. Hasak seeks an amended
judgment and DENIED to the extent he seeks a new trial. The Clerk is requested to issue
an Amended Judgment reducing the past economic damages award to $0. Defendant
Hasak’s second Motion [Doc. # 464] for New Trial is DENIED. Plaintiffs’ Motion [Doc.
# 488] for Bond is GRANTED in part and DENIED in part. Mr. Hasak is ordered to post
a bond in the amount of $50,000. Plaintiff’s Objection [Doc. # 493] to Defendant’s SurReply is SUSTAINED.
IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 24th day of November, 2015.
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