Mueller v. State of Hawaii Department of Public Safety, et al.
Filing
547
ORDER DENYING DEFENDANT STATE OF HAWAII DEPARTMENT OF PUBLIC SAFETY'S MOTION FOR A NEW TRIAL UNDER RULE 59(a) AND/OR REMITTITUR AND RELIEF UNDER RULE 59(e) (ECF No. 514 ) - Signed by SENIOR JUDGE HELEN GILLMOR on 3/31/2022. Defendant State of Hawaii Department of Public Safety's Motion for a New Trial Under Rule 59(a) and/or Remittitur and Relief Under Rule 59(e) (ECF No. 514 ) is DENIED. (jo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ELIZABETH A. MUELLER,
Plaintiff,
vs.
STATE OF HAWAII DEPARTMENT OF
PUBLIC SAFETY; FREDDIE
CARABBACAN; NOLAN ESPINDA,
Defendants.
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CIVIL NO. 17-00571 HG-WRP
ORDER DENYING DEFENDANT STATE OF HAWAII DEPARTMENT OF PUBLIC
SAFETY’S MOTION FOR A NEW TRIAL UNDER RULE 59(a) AND/OR
REMITTITUR AND RELIEF UNDER RULE 59(e) (ECF No. 514)
On November 12, 2021, following a seven-day trial, the jury
returned a split verdict.
The jury found in favor of Plaintiff
Elizabeth Mueller against Defendant State of Hawaii Department of
Public Safety and Defendant Freddie Carabbacan.
The jury
returned a verdict in favor of Defendant Nolan Espinda for the
claims Plaintiff brought against him.
The jury awarded damages against Defendant State of Hawaii
Department of Public Safety, as follows:
(1)
Negligence against the Department of Public Safety with
general damages in the amount of $1,000,000;
(2)
Respondeat Superior against the Department of Public
Safety, finding that Russell Ching, the supervisor of
Defendant Freddie Carabbacan, negligently retained and
supervised Carabbacan because Ching knew, or reasonably
should have anticipated, that Defendant Carabbacan
would commit an intentional tort against Plaintiff
Mueller, and Ching was in a position to take reasonable
precautions against the anticipated harm against
Plaintiff but failed to do so, causing her harm in the
1
amount of $2,000,000;
(3)
Negligent Infliction Of Emotional Distress against the
Department of Public Safety finding its negligent
conduct caused Plaintiff serious emotional distress and
a physical injury or mental illness for damages in the
amount of $2,000,000.
The jury awarded damages against Defendant Freddie
Carabbacan in the amount of $2,050,000.
On November 15, 2021, Judgment was entered.
(ECF No. 510).
On December 13, 2021, Defendant State of Hawaii Department
of Public Safety filed a Motion for a New Trial Under Rule 59(a)
and/or Remittitur and Relief Under Rule 59(e).
(ECF No. 514).
On January 5, 2022, Plaintiff filed her Opposition to
Defendant’s Motion for a New Trial.
(ECF No. 526).
On January 19, 2022, Defendant State of Hawaii Department of
Public Safety filed its Reply.
(ECF No. 534).
The Court elects to decide the matter without a hearing
pursuant to District of Hawaii Local Rule 7.1(c).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 59 sets forth a basis to
alter or amend a judgment or for the Court to order a new trial.
Fed. R. Civ. P. 59(a), (e).
Rule 59 does not specify the grounds
for which a new trial may be ordered, but the Ninth Circuit Court
of Appeals has outlined the grounds that have been “historically
recognized.”
Zhang v. Am. Gem Seafoods, Inc., 399 F.3d 1020,
1035 (9th Cir. 2003); see Molski v. M.J. Cable, Inc., 481 F.3d
724, 729 (9th Cir. 2007).
2
The grounds on which a new trial may be granted include
“claims 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.”
Molski, 481 F.3d at 729
(citation and internal quotations omitted).
A new trial may also
be ordered where the verdict “is based upon false or perjurious
evidence, or to prevent a miscarriage of justice.”
Passantino v.
Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 510 n.15
(9th Cir. 2000).
The District Court “may not grant a new trial simply because
it would have arrived at a different verdict” than the verdict
returned by the jury.
Silver Sage Partners, Ltd. v. City of
Desert Hot Springs, 251 F.3d 814, 819 (9th Cir. 2001).
ANALYSIS
I.
Fed. R. Civ. P. 59
Federal Rule of Civil Procedure 59 provides, in pertinent
part:
(a) In General.
(1) Grounds for New Trial. The court may, on
motion, grant a new trial on all or some of
the issues–and to any party–as follows:
(A) after a jury trial, for any reason for
which a new trial has heretofore been
granted in an action at law in federal
court....
(e)
Motion to Alter or Amend a Judgment. A motion to
alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.
3
The Defendant State of Hawaii Department of Public Safety
moves for a new trial or to amend the Judgment pursuant to Fed.
R. Civ. P. 59(a) and 59(e).
The State argues that a new trial, or an amended Judgment,
is necessary on two grounds.
First, the State argues the jury’s verdict against it was
excessive.
Second, the State argues that it was unable to obtain a fair
trial.
The Court does not find the arguments persuasive.
Neither
of the State’s arguments support ordering a new trial or amending
the Judgment in this case.
II.
Defendant State Of Hawaii Challenges The Jury Verdict On The
Grounds That It Was Excessive
A.
The Court Applies Federal Law To Procedural Questions
On November 22, 2017, the State removed Plaintiff’s
Complaint from Hawaii State Court to the United States District
Court for the District of Hawaii on the basis of federal question
jurisdiction pursuant to 28 U.S.C. § 1331.
ECF No. 1).
(Notice of Removal,
The Court has subject-matter jurisdiction over the
proceedings based on Plaintiff’s federal law claims pursuant to
28 U.S.C. § 1983.
The Court exercised supplemental jurisdiction
over the remaining state law claims.
28 U.S.C. § 1367(a).
The Federal Rules of Civil Procedure govern actions in
federal court, regardless of the basis for subject-matter
4
jurisdiction.
Moore’s Fed. Prac. § 59.03 (3d ed.).
Here, the State moves for a new trial or amended Judgment
pursuant to Fed. R. Civ. P. 59(a) and (e).
Fed. R. Civ. P. 59 is
a procedural rule and is applicable in all federal cases.
B.
The Court Applies Hawaii Law To Evaluate The Substance
Of Defendant’s Rule 59 Motion Challenging The Jury’s
Damages Award
The substance of a Rule 59 challenge may require application
of state law in limited instances.
A federal district court
applies state law in evaluating a Fed. R. Civ. P. 59 motion when
a party argues that a jury’s verdict on a state law claim is
excessive.
T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520,
1530 (11th Cir. 1985) (explaining that review of the
excessiveness of a jury’s verdict on a state law claim is
governed by the State’s substantive law, but if excessiveness is
found, it is federal law that determines if a new trial should be
granted).
Here, the State’s Rule 59 motion is based on the jury
verdict’s purportedly excessive damages award and the State seeks
remittitur1.
Excessiveness of a verdict on a state law claim is
determined pursuant to state law.
1
See Gasperini v. Ctr. for
Remittitur is defined as the process by which a court
compels a plaintiff to choose between the reduction of an
excessive verdict and a new trial if the court finds that a
verdict was excessive and not supported by the evidence. Moore’s
Fed. Prac. § 59.13[2][g] (3d ed.); see Hetzel v. Prince William
Cnty., 523 U.S. 208, 211 (1998).
5
Humanities, 518 U.S. 415, 426-31 (1996); see also Mason and Dixon
Intermodal, Inc. v. Lapmaster Intern. LLC, 632 F.3d 1056, 1060
(9th Cir. 2011) (explaining that the court applies state
substantive law to state law claims based on supplemental
jurisdiction).
C.
The Jury’s Verdict Is Supported By The Clear Weight Of
The Evidence
The Seventh Amendment to the United States Constitution
guarantees that “no fact tried by a jury shall be otherwise reexamined in any Court of the United States” except “according to
the rules of the common law.”
The Court must accept any
reasonable interpretation of the jury’s verdict.
Gallick v.
Baltimore & O. R.R. Co., 372 U.S. 108, 119 (1963).
The United States Supreme Court has explained that “a search
for one possible view of the case which will make the jury’s
finding inconsistent results in a collision with the Seventh
Amendment.”
Atl. & Gulf Stevedores, Inc. v. Ellerman Lines,
Ltd., 369 U.S. 355, 364 (1962).
The Court may only grant a new
trial if the jury’s verdict was against the “great weight of the
evidence, or it is quite clear the jury has reached a seriously
erroneous result.”
(9th Cir. 1997).
EEOC v. Pape Lift, Inc., 115 F.3d 676, 680
Evaluating a jury verdict for excessiveness is
a case-specific endeavor but for which there is no specific
formula.
2007).
Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir.
The trial court cannot substitute its evaluations for
6
those of the jurors.
Union Oil Co. of Cal. v. Terrible Herbst,
Inc., 331 F.3d 735, 743 (9th Cir. 2003).
The State argues that it disagrees with the jury’s verdict
in awarding damages to Plaintiff on the basis that the verdict
was excessive.
The State asserts that the verdict was excessive on three
bases: (1) it was not supported by evidence; (2) it was
duplicative and inconsistent; and (3) it was impermissibly
punitive and based on inappropriate argument.
1.
The Evidence Clearly Supports The Jury Verdict
The evidence at trial demonstrated that the Defendant State
of Hawaii Department of Public Safety knowingly allowed
Defendant Deputy Sheriff Freddie Carabbacan, a male, to conduct
strip searches of females in custody.
The evidence also
demonstrated that the Department of Public Safety did not employ
any female sheriffs at the First Circuit Court Cellblock and did
not assign any female sheriffs from other locations to conduct
searches at the cellblock.
There was evidence presented that when a complaint was
lodged against Carabbacan for conducting a strip search on a
woman in the cellblock, the Department of Public Safety removed
Carabbacan from his position in the cellblock.
The Department,
however, knowingly returned Carabbacan back to his position in
the cellblock and allowed him to continue to conduct strip
searches of females in custody.
Two days after his
7
reinstatement, he conducted the strip search of Plaintiff
Elizabeth Mueller which the jury found caused her harm and
awarded her damages.
In addition, the jury heard evidence that the Department of
Public Safety attempted to prevent Plaintiff Mueller from lodging
a complaint against Carabbacan and prevented her from making a
police report against him.
There was a delayed, untimely
investigation into Carabbacan following her complaint.
The jury also heard evidence that the Department of Public
Safety kept inaccurate records of the investigation, failed to
maintain proper procedures about the status of the investigation,
and repeatedly provided false information to Plaintiff about the
investigation.
Plaintiff Mueller testified that not only did the incident
itself on July 3, 2014 cause her harm, but the State’s continued
negligence over a period of years resulted in additional trauma.
She testified to emotional distress, anxiety, and fear based on
the Department of Public Safety and its employees’ actions and
omissions.
a.
Short Summary of Evidence
Selena Kumia
On June 17, 2014, Seleena Kumia, a female, was strip
searched by Deputy Sheriff Freddie Carabbacan, a male, in the
cellblock at the First Circuit Court, State of Hawaii.
Transcript Day 1 at pp. 49-55, ECF No. 489).
8
(Trial
Carabbacan was
acting as temporary sergeant of the cellblock at the time and was
in charge.
(Id. at p. 72).
Kumia testified at trial that
Carabbacan told her to strip. (Id. at p. 49).
She removed her
clothing except for a sports bra and a panty, and she was then
searched by Carabbacan.
(Id. at pp. 51-52).
She explained the
search in detail, stating that Carabbacan put his head in her
crotch and felt up and around her breasts.
(Id. at pp. 51-55).
Kumia stated that officers in the cellblock watched and laughed
at her.
(Id. at p. 56).
Kumia reported the incident and Deputy Sheriff Michael
Murota began an investigation into the incident.
60).
(Id. at pp. 57-
Kumia testified that the State never informed her of the
results of her complaint or anything about the investigation
conducted by Murota.
(Id. at p. 61).
Carabbacan testified at trial that he conducted many
searches of females in the cellblock without a female sheriff
present because he was the supervisor and felt it was
appropriate.
(Id. at p. 100-03).
Carabbacan testified that his
supervisor, Lieutenant Russell Ching, knew that he was conducting
strip searches of females in the cellblock.
107).
(Id. at pp. 101,
Carabbacan testified that there were no female staff
members assigned to the cellblock.
(Id. at p. 104).
Carabbacan
testified that there were female sheriffs assigned to the
Honolulu Airport and to the Oahu Community Correctional Center
but that he believed it was too time consuming and inconvenient
to wait for a female sheriff to come to the cellblock to conduct
9
a search of a female in custody.
(Id. at pp. 104-06).
Carabbacan testified that he never called to see if a female
sheriff was available to assist on searches of females in
custody.
(Id. at pp. 104-07).
Carabbacan testified there were
no security cameras in the cellblock and no searches that he
conducted of females in custody were recorded.
(Id. at p. 112).
Carabbacan testified that Lietenant Ching was angry with him
after Ching received the complaint made by Kumia against
Carabbacan.
(Id. at pp. 123-24).
Carabbacan testified that on
June 19, 2014, he was removed from duty two days after Kumia
reported the incident.
(Id. at p. 125).
Carabbacan stated that
he was prohibited from any contact with females in custody at
that time.
(Id.)
Carabbacan testified that he believed Ching
was wrong and was not up to speed with proper training and
procedures.
(Id. at p. 127).
Carabbacan testified that less than two weeks later, on July
1, 2014, he was placed back on duty by Ching and that Carabbacan
was again allowed by the Department of Public Safety to conduct
searches of females in custody.
(Id. at pp. 129-30).
Elizabeth Mueller
On July 3, 2014, two days after Carabbacan was placed back
on duty, he conducted a strip search of Plaintiff Mueller in the
cellblock.
(Id. at pp. 130-31).
Plaintiff Muller cried
throughout her time on the stand recounting the incident.
Plaintiff explained that during the incident she felt that the
10
strip search conducted by Carabbacan was wrong, and that it made
her feel distraught, upset, scared, and helpless.
(Trial
Transcript of Day 2 at pp. 71-78, ECF No. 545).
Plaintiff testified at length about the incident, describing
that she could feel Carabbacan “touch literally my breasts and he
went all the way around the back of my bra to very the back.
So
he went around, lifted, pulled around with his fingers and came
around to the back part...He, like, lifted and shook [my
breasts].”
(Id. at p. 74).
She detailed her testimony about the
invasive nature of the search including Carabbacan placing his
face in her crotch, touching her up and down her bare legs and
thighs, and explaining that he was standing from behind to
conduct the search of her breasts with her legs ordered to be
spread open.
(Id. at pp. 73-77).
Plaintiff explained that other inmates and staff were
watching during the strip search, and she could hear three male
sheriffs in the control room laughing during the strip search.
(Id. at p. 77).
After The Mueller Strip Search
Following the July 3, 2014 search, Plaintiff Mueller
testified that staff from the Department of Public Safety
prevented her from filing either a police report or an internal
complaint of the strip search and that she was specifically told
by a male Department of Public Safety employee not to complain
but to “take one for the team.”
(Id. at p. 78).
11
The jury heard evidence that on July 24, 2014, Plaintiff was
finally able to file a written complaint of the July 3, 2014
strip search conducted by Carabbacan.
(Id. at pp. 78-79).
Sergeant Murota testified that he completed the
investigation into Plaintiff’s complaint exactly a year later on
July 24, 2014.
Evidence showed that Plaintiff was not told about
the completion of the investigation at that time.
Plaintiff
testified that she repeatedly inquired about the status of the
investigation over a period of years and was consistently told on
numerous occasions that the investigation was ongoing, despite
the fact that the investigation was completed on July 24, 2015.
(Id. at p. 84).
The jury heard evidence that the Department of Public
Safety’s status logs regarding Plaintiff Mueller’s complaint were
not updated when the investigation was completed.
The evidence
revealed that Plaintiff did not receive notice that the
investigation was completed until nearly three years after the
July 3, 2014 strip search.
(Id. at p. 87).
On June 30, 2017,
Plaintiff inquired with Department of Public Safety employee
Shanell Smith about the status of the investigation, and Ms.
Smith inquired about the investigation up the chain of command.
She discovered that the investigation had actually concluded
nearly two years earlier on July 24, 2015.
(Trial Exhibit 39).
Plaintiff testified that she considered the strip search to
be a sexual assault.
No. 545).
(Trial Transcript of Day 2 at p. 77, ECF
She testified that the strip search itself caused her
12
harm, fear, and emotional distress.
(Id. at p. 82).
In
addition, she explained that the actions by the Department of
Public Safety following the incident, including the employees’
actions in preventing her from filing a complaint and repeatedly
providing her with false information, caused her emotional
distress and harm over the period of years.
116).
(Id. at pp. 82, 88,
There was evidence that Plaintiff had been diagnosed with
various mental health conditions and sought treatment in 2018 and
2019 related to the July 3, 2014 strip search.
(Trial Transcript
Day 6 at p. 12, ECF No. 529).
Criminal Complaint
The jury heard evidence that on July 3, 2017, Sergeant Allan
Octavio finally provided Plaintiff with the results of the
investigation, three years to the day that Plaintiff was strip
searched by Carabbacan on July 3, 2014.
(Trial Transcript Day 2
at p. 87, ECF No. 545).
Plaintiff’s counsel introduced evidence that there was a
three year statute of limitations for sexual assault in the third
degree.
Plaintiff argued that the Department of Public Safety
hindered Plaintiff from seeking criminal charges against
Carabbacan by not giving her the substantiation of her complaint
until the exact deadline that the criminal statute of limitations
had passed.
(Id. at p. 96-98).
Plaintiff testified that she
believed the Department of Public Safety was “protecting
[Carabbacan],” explaining, “I find it peculiar that my
13
documentation was held back for three years to the date for
criminal prosecution.
I find it peculiar that every time I went
to [Oahu Community Correctional Center] that they always told me
that my investigation was pending [when it was not].”
(Id. at p.
117).
b.
The Jury Verdict Is Consistent With The Clear
Weight Of The Evidence And The Jury Instructions
Defendant’s only argument regarding the sufficiency of the
evidence is that Plaintiff Mueller did not describe in enough
detail the harm she suffered as a result of the State of Hawaii
Department of Public Safety’s actions.
Defendant’s argument is unpersuasive.
The Court must review
the consistency of the jury’s verdict in the light of the
instructions given.
Grosvenor Properties, Ltd. v. Southmark
Corp., 896 F.2d 1149, 1151 (9th Cir. 1990).
Here, the Parties
agreed to the jury instructions on damages, as follows:
Court’s Instruction No. 30
It is the
the measure of
the Court does
verdict should
duty of the Court to instruct you about
damages. By instructing you on damages,
not mean to suggest for which party your
be rendered.
If you find for Plaintiff as to a claim, you must
determine Plaintiff’s damages. Plaintiff has the
burden of proving damages by a preponderance of the
evidence. Damages means the amount of money that will
reasonably and fairly compensate Plaintiff for any
injury you find was caused by a Defendant.
It is for you to determine what damages, if any,
have been proved.
Your award must be based upon evidence and not
14
upon speculation, guesswork, or conjecture.
(Jury Instruction No. 30, ECF No. 508 at p. 37).
Court’s Instruction No. 31
In determining the measure of damages, you should
consider the nature and extent of her injuries and/or
the mental and emotional pain and suffering
experienced.
(Jury Instruction No. 31, ECF No. 508 at p. 38).
Court’s Instruction No. 32
General damages are those damages which fairly and
adequately compensate Plaintiff for any past, present,
and reasonably probable future disability, pain, and/or
emotional distress caused by the injuries or damages
sustained.
(Jury Instruction No. 32, ECF No. 508 at p. 39).
Court’s Instruction No. 33
Plaintiff is not required to present evidence of
the monetary value of her pain or emotional distress.
It is only necessary that Plaintiff prove the nature,
extent and effect of her injury, pain, and/or emotional
distress. It is for you, the jury, to determine the
monetary value of such pain and/or emotional distress
using your own judgment, common sense, and experience.
(Jury Instruction No. 33, ECF No. 508 at p. 40).
Defendant State of Hawaii did not object to the damages jury
instructions.
(Minutes from Status Conference on November 10,
2021, ECF No. 504).
The verdict demonstrates that the jury credited Plaintiff’s
testimony as to the extent of her injury, pain, and emotional
distress caused by the State.
The jury applied judgment, common
sense, and experience to determine the monetary value for each of
the causes of action for which Plaintiff prevailed against the
15
State.
(Special Verdict Form, ECF No. 507).
The Hawaii Supreme Court has set forth the test for
evaluating whether a jury’s award of damages is excessive, as
follows:
[A] finding of an amount of damages is so much within
the exclusive province of the jury that it will not be
disturbed on appellate review unless palpably not
supported by the evidence, or so excessive and
outrageous when considered with the circumstances of
the case as to demonstrate that the jury in assessing
damages acted against rules of law or suffered their
passions or prejudices to mislead them.
Quedding v. Arisumi Bros., Inc., 661 P.2d 706, 709-10 (Haw.
1983) (quoting Vasconcellos v. Juarez, 37 Haw. 364, 366 (Haw.
Terr. 1946)).
Here, a review of the record demonstrates that the jury
verdict was not outrageous when considered within the
circumstances of the case.
There was ample evidence that the State failed to supervise
Defendant Carabbacan and that it affirmatively knew that he was
conducting strip searches of females in custody prior to the July
3, 2014 strip search of Plaintiff.
Lieutenant Ching testified at
length about his role as the supervisor of Carabbacan, and he
explained that he put Carabbacan back on duty and permitted him
to conduct strip searches of females in custody two days before
Carabbacan searched Plaintiff Mueller on July 3, 2014.
There was sufficient evidence at trial for the jury to find
that the State’s actions and its failures to act caused
Plaintiff’s harm and emotional distress.
16
Contrary to the State’s position, the harm in this case was
not limited to the harm caused by Defendant Carabbacan on July 3,
2014.
The jury awarded general damages to Plaintiff for her
claims against the State of Hawaii Department of Public Safety
and the scope of the general damages award is not as narrow as
the State argues.
“General damages encompass all the damages
which naturally and necessarily result from a legal wrong done,
... and include such items as pain and suffering, inconvenience,
and loss of enjoyment which cannot be measured definitively in
monetary terms.”
Kanahele v. Han, 263 P.3d 726, 731 n.8 (Haw.
2011) (quoting Bynum v. Magno, 101 P.3d 1149, 1153 (Haw. 2004)).
There was evidence that Plaintiff suffered harm following
the July 3, 2014 incident.
Plaintiff introduced evidence that
the State’s procedures relating to the Prison Rape Elimination
Act were not properly followed with respect to her complaint
regarding the July 3, 2014 incident.
There was evidence that
Department of Public Safety employees contributed to Plaintiff’s
emotional distress following the incident by preventing her from
filing police reports, by providing her with incorrect
information, and by delaying the investigation.
Plaintiff
testified that the actions by the Department of Public Safety
caused her to mistrust authority and caused her to have continued
fear of law enforcement.
It is not for the Court to alter the credibility
determinations of the jury or to substitute its own opinions as
to the value of Plaintiff’s pain or emotional distress.
17
Johnson
v. Sartain, 375 P.2d 229, 231 (Haw. 1962); see Union Oil Co. of
Cal., 331 F.3d at 743.
A court only reverses a “jury’s finding of the amount of
damages if the amount is grossly excessive or monstrous.”
Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 1999) (en
banc).
The jury’s verdict in this case is not “so grossly
excessive as to shock the moral sense.”
Trask v. Kam, 352 P.2d
320, 325 (Haw. 1959).
Contrary to the State’s position, there was sufficient
evidence for the jury to award the damages it found in the
Special Verdict Form.
The jury was permitted to assess damages
based solely on the Plaintiff’s testimony.
(Jury Instruction No.
33, ECF No. 508 at p. 40); Peake v. Labatad, 501 P.3d 332, *5
(Haw. App. 2021) (explaining that under Hawaii law, a plaintiff’s
testimony about her own pain and suffering is sufficient to
support a damages award); see Zhang, 339 F.3d at 1040 (upholding
a jury’s award of emotional distress damages based on the
plaintiff’s testimony alone); see also Passantino, 212 F.3d at
513.
The Hawaii Supreme Court has ruled that pain and suffering
is measured by what the trier of fact considers will reasonably
compensate the plaintiff in light of the intensity and extent to
which she suffered.
1969).
Barretto v. Akau, 463 P.2d 917, 923 (Haw.
Pain and suffering can be based on the plaintiff’s
testimony alone, and nothing in the record demonstrates that the
jury’s verdict was outrageous or impermissibly excessive.
18
2.
The Jury Verdict Was Not Duplicative Or Inconsistent
The trial court must “search for a reasonable way to read
the verdicts as expressing a coherent view of the case, and must
exhaust this effort before it is free to dismiss the jury’s
verdict.”
Carr v. Strode, 904 P.2d 489, 503 (Haw. 1995) (quoting
Toner v. Lederle Labs., 828 F.2d 510, 512 (9th Cir. 1987)).
Here, the Special Verdict Form properly separated the
damages for each specific cause of action to avoid duplication
and inconsistency.
Defendant State of Hawaii agreed to the use
of the Special Verdict Form before it was provided to the jury.
(Minutes From November 10, 2021 Status Conference, ECF No. 504).
There is nothing duplicative or inconsistent in the way damages
are awarded on the Special Verdict Form.
Negligence and NIED
claims are not duplicitous of a respondeat superior claim.
Doe
Parents No. 1 v. State, Dept. of Educ., 58 P.3d 545, 578 (Haw.
2002).
The State argues that the jury’s award of damages in this
case is duplicitous because the State believes the damages in
this case are limited to emotional distress caused on July 3,
2014 by the conduct of Defendant Carabbacan.
Again, the State
ignores the numerous harms caused to Plaintiff, the scope of
general damages pursuant to Hawaii law, and the duration and
severity of the harm caused to Plaintiff due to the State’s
numerous and separate failures.
Kanahele, 263 P.3d at 731 n.8.
As Plaintiff explains in her Opposition:
19
The State continues to minimize Plaintiff’s injury and
ignores its culpability in creating the danger[ous]
situation that it placed Plaintiff in....[T]he injury
also included the damage resulting from its failure to
properly administer the federal Prison Rape Elimination
Act, DPS employees’ actions preventing Plaintiff from
filing a complaint against Carabbacan the day the strip
search occurred, DPS’s mishandling of the subsequent
investigation into her complaint, and DPS employees’
actions in preventing Plaintiff from pursuing criminal
charges against Defendant Carabbacan.
(Pl.’s Opposition at p. 7, ECF No. 526).
The findings of the jury are neither inconsistent with a
determination of liability nor legally irreconcilable with each
other or with a subsidiary legal conclusion.
Carr,
---- 904 P.2d at
503.
3.
There Is No Evidence To Support Defendant’s Theory That
The Jury Verdict Was Punitive
a.
There Is No Basis To Find The Jury Intended The
Damages Award To Be Punitive
The Parties agreed to the Jury Instructions and the Special
Verdict Form before they were given to the jury.
The Jury
Instructions and the Special Verdict Form explained the basis by
which punitive damages could be awarded in this case.
It was
clear from both the Jury Instructions and the Special Verdict
Form that punitive damages were only available against Defendant
Carabbacan and Defendant Espinda.
The Jury Instructions
specifically explained to the jury that punitive damages may not
be awarded against the Defendant State of Hawaii Department of
Public Safety.
(Jury Instruction No. 35, ECF No. 508 at p. 43,
explaining “Punitive damages may not be awarded against the
20
Department of Public Safety”; see Special Verdict Form, ECF No.
507).
No punitive damages were awarded against the Defendant State
of Hawaii on the Special Verdict Form as they were not available
as a matter of law.
(Id.)
The State speculates that the jury award against the State
was intended to be punitive.
State’s theory.
There is no evidence to support the
There is no basis to find that the jury’s
verdict against the Defendant State of Hawaii is punitive other
than the State’s own conjecture and speculation.
b.
Statements Made By Plaintiff’s Counsel Do Not
Provide A Basis For Ordering A New Trial
The State also argues that the verdict was improperly based
on statements made by Plaintiff’s counsel during closing
argument.
First, the State did not object to the statements made by
Plaintiff’s counsel during closing and is simply cherry-picking
arguments without the context of the entirety of the trial and
the arguments themselves.
Second, Plaintiff’s counsel made permissible arguments about
the State’s repeated failures to oversee the safety of female
inmates, failures to supervise Carabbacan, failures to train its
staff, failures to maintain records, and failures to properly
administer the Prison Rape Elimination Act.
The arguments go
toward the serious nature of Plaintiff’s harm and the scope of
21
general damages available pursuant to Hawaii law.
The State’s reliance on caselaw about impermissible
arguments made by prosecutors in criminal trials is misplaced.
The standard for evaluating prejudice for attorney misconduct in
a civil case is different from that of a criminal case.
Compare
Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1286
(9th Cir. 1984) and United States v. Hermanek, 289 F.3d 1076,
1098-99 (9th Cir. 2002).
In a civil case, the Court considers the totality of the
circumstances, including the nature of counsel’s comments, their
frequency, their possible relevancy to the real issues before the
jury, the manner in which the parties and the court treated the
comments, the strength of the case, and the verdict itself.
Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1193 (9th Cir. 2002).
Here, the remarks made by Plaintiff’s counsel at closing do
not provide a basis for a new trial.
Cooper v. Firestone Tire &
Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (declining to
find reversible error where the alleged misconduct occurred only
in the argument phase of the trial, the remarks were isolated
rather than persistent, most of counsel’s comments were not
objected to at trial, and the opposing party did not move for a
mistrial at the end of argument).
The State argues that Plaintiff’s counsel violated the
“Golden Rule” during his closing argument.
The Golden Rule, to
which the State refers, is used primarily in the context of a
criminal trial where a prosecutor asks a juror to think of
22
themselves in the place of the victim when adjudicating guilt.
Drayden v. White, 232 F.3d 704, 712-13 (9th Cir. 2000).
Plaintiff’s counsel made statements about the context of
Plaintiff Mueller being detained in a prison cell when the strip
search occurred and asked the jurors to imagine the situation to
understand her perspective and testimony.
As explained in Howard v. Connett, 2017 WL 4682300, *3 (D.
Nev. 2017), such arguments in the context of a Section 1983
claim, such as here, are not improper.
The court in Howard
explained:
[T]he argument appears to merely have pointed out to
the jury that the prison setting is different than a
real world setting in the context of the disputes at
issue. This is not an empathy or sympathy argument,
rather it is a factual argument about the nature of the
circumstances in which the disputed acts occurred. In
the context of the entire closing argument by
Plaintiff, the Court understood this reference to be
asking the jury to remember the prison setting and not
rely just upon their common sense applied to a nonprison setting.
Id.
In addition, the State ignores that there were other
Defendants at this trial for which punitive damages were
available.
Punitive damages were available against Defendant
Nolan Espinda who was represented by counsel for the State at
trial.
Statements requesting the jury send a message to Espinda
and asking the jury to punish him to deter other Directors of the
Department of Public Safety are not improper.
See Settlegoode v.
Portland Public Schools, 371 F.3d 503, 519 (9th Cir. 2004)
(explaining that “reminding the jury that they have the capacity
23
to deter defendants and others similarly situated is certainly
legitimate where punitive damages are at stake”).
Defendant’s reliance on the Golden Rule argument also fails
as a matter of law because alleged offending remarks that are
limited to an opening statement and a closing argument, rather
than throughout the course of trial, do not provide a basis for a
new trial.
Settlegoode, 371 F.3d at 518.
Third, the State misconstrues counsel’s argument regarding
the Department of Public Safety’s budget.
The annual budget was
admitted to counter the State’s argument that it did not have
sufficient funds to hire a female sheriff for the cellblock,
which was given as an explanation as to why Carabbacan was
permitted to search females in custody instead of a female
sheriff.
The budget was not admitted for an improper purpose nor
was it used by Plaintiff for any purposes relating to punitive
damages.
Fourth, there is no evidence that the jury’s verdict was
driven by sympathy or was based on improper bias, prejudice, or
passion.
This is particularly evident because there was a split
verdict in this case.
The jury did not find liability nor award
damages against Defendant Espinda.
The verdict reflects the
jury’s ability to compartmentalize the evidence and follow the
court’s instructions.
See United States v. Vasquez-Velasco, 15
F.3d 833, 846 (9th Cir. 1994).
The jury made differing, independent findings as to each
Defendant and as to each claim.
The Court cannot conclude that
24
the verdict is outrageous, shocks the conscience, or is against
the clear weight of the evidence.
Vasconcellos, 37 Haw. at 366;
Trask, 352 P.2d at 325; Molski, 481 F.3d at 729.
III. Defendant State Of Hawaii Has Not Substantively Challenged
The Fairness Of The Trial
In its Rule 59 Motion, Defendant State of Hawaii argues that
the trial was unfair to it.
The State does not argue that the
trial was unfair to Defendant Nolan Espinda for which the jury
found no liability.
The State does not explain why it believes
the State received an unfair trial, but Defendant Espinda, whom
the same attorneys also represented, received a fair trial.
The
State does not address on what basis the Court could order a new
trial just for the State and not against Defendant Espinda for
whom counsel does not seek a new trial.
There are no substantive challenges to the trial in the
Motion.
Rather, Defendant State of Hawaii lists rulings made
against it and argues that the rulings resulted in an unfair
trial against the State only.
(Def.’s Motion for New Trial at p.
25, ECF No. 514-1).
The State has not provided any legal analysis, factual
basis, or substantive allegations upon which the Court could find
that the State did not obtain a fair trial.
The Court cannot substantively evaluate the State’s argument
that the trial was unfair without a meaningful challenge.
The
Court explained the legal basis for all of its rulings and issued
25
written orders setting forth the Court’s analysis.
The State’s
Rule 59 Motion simply listing the rulings held against it fails
to present any argument about fundamental unfairness for the
Court to evaluate.
The record reflects that each of the Defendants, including
the State, was provided a full and fair opportunity to be heard
at trial.
The jury ruled against the Defendant State of Hawaii
and Defendant Carabbacan, but not against Defendant Espinda.
The
State may raise its arguments on appeal as to the rulings made
against it if it chooses to do so.
The fact that a judge has made rulings adverse to a party is
not a basis for a new trial for fundamental unfairness.
Liteky v. United States, 510 U.S. 540, 555 (1994).
See
The State has
not presented this Court with any substantive reason for the
Court to overturn the jury’s verdict or to order a new trial
based on purported unfairness.
//
//
//
//
//
//
//
//
//
26
CONCLUSION
Defendant State of Hawaii Department of Public Safety’s
Motion for a New Trial Under Rule 59(a) and/or Remittitur and
Relief Under Rule 59(e) (ECF No. 514) is DENIED.
DATED: Honolulu, Hawaii, March 31, 2022.
IT IS SO ORDERED.
Elizabeth A. Mueller v. State of Hawaii, Department of Public
Safety; Freddie Carabbacan; Nolan Espinda; Civ. No. 17-00571 HGWRP; ORDER DENYING DEFENDANT STATE OF HAWAII DEPARTMENT OF PUBLIC
SAFETY’S MOTION FOR A NEW TRIAL UNDER RULE 59(a) AND/OR
REMITTITUR AND RELIEF UNDER RULE 59(e) (ECF No. 514)
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