Gilfand et al v. Planey et al

Filing 549

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 11/13/2012:Mailed notice(wp, )

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

BARRY GILFAND, et al.,
Plaintiffs,
Case No. 07 C 2566
v.
Hon. Harry D. Leinenweber
SGT. JEFFREY PLANEY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Barry Gilfand, Aaron Gilfand,
Adam

Mastrucci,

and

Scott

Lowarance’s

(collectively,

“Plaintiffs”) Motion for a New Trial on certain claims.

the

For the

reasons stated herein, the Court denies Plaintiffs’ motion in its
entirety.
I.

BACKGROUND

This civil case stems from a December 2006 bar fight at the
Jefferson Tap bar in Chicago, Illinois. In the early morning hours
of December 15, 2006, an altercation between Plaintiffs and OffDuty

Chicago

Police

Officers

Jeffrey

Planey,

Gregory

Barnes,

Vincent Matthews, Paul Powers, Matias Padilla, Demetrios Kereakes,
and Erika Woosley (collectively, the “Off-Duty Officers”) ensued.
At some point after the fight escalated, someone at the bar called
911.

At various points in time, Responding Officers Kenneth

Carlyon, Frederick Collins, Nicole Mayoski, Ana Pina, Donald Lupo,
and Gregory Morabito (collectively, the “Responding Officers”)

arrived at the Jefferson Tap to survey the situation.

Allegedly,

when Responding Officers Lupo and Collins arrived at the scene,
Off-Duty Officer Planey informed them that he had the situation
under control and their assistance was not needed.
this, Officers Lupo and Collins left.

After hearing

Later, Responding Officers

Mayoski and Pina arrived, however, allegedly Off-Duty Officer
Barnes

informed

them

that

it

was

only

a

minor

bar

fight.

Subsequently, Mayoski and Pina left the scene.
The preceding events are what provided the grounds for this
lawsuit.

Plaintiffs filed a seven-count Second Amended Complaint

against Off-Duty Officers, Responding Officers, and the City of
Chicago.

Specifically Plaintiffs asserted excessive force claims

under 42 U.S.C. § 1983 against all Off-Duty Officers (except
Officer Woosley); and the City of Chicago; a § 1983 failure to
intervene claim against the Off-Duty Officers, Responding Officers,
and the City of Chicago; state law battery claims against the OffDuty Officers (except Woosley); and state law assault claims
against the Off-Duty Officers (except Woosley). Immediately before
trial, Plaintiffs voluntarily dismissed Responding Officers Carlyon
and Morabito.
On May 7, 2012, the case proceeded to trial.

After the

Plaintiffs’ case-in-chief, the Court granted a directed verdict in
favor of the five Responding Officer Defendants – Lupo, Collins,
Pina, Mayoski, and Lieutenant Kinsley – as well as Off-Duty Officer
Woosely,

dismissing

them

from

the

- 2 -

case.

At

the

close

of

Plaintiffs’ evidence, the Court also found that the Plaintiffs
failed to present sufficient evidence that the remaining Off-Duty
Officers, (other than Defendant Planey) were acting under the color
of law at the time of the incident.

Ultimately, the case went to

the jury against the six remaining Off-Duty Officers (Planey,
Barnes, Padilla, Powers, Kereakes, and Matthews) and the City of
Chicago on Plaintiffs’ Fourth Amendment excessive force claims,
Fourth Amendment failure to intervene/investigate claims, state law
battery claims, state law assault claims, and state law respondeat
superior claims.
On May 18, 2012, the jury rendered its verdict.

In it, the

jury ruled as follows:
PLAINTIFF AARON
GILFAND’S CLAIMS:

DEFENDANTS CHARGED:

JURY VERDICT IN
FAVOR OF:

Fourth Amendment
Excessive Force

Defendant Planey

Defendant

Fourth Amendment
Failure to
Investigate and
Discipline

Defendant City of Chicago

Defendant

Battery

1)
2)
3)
4)
5)
1)
2)

1)
2)
3)
4)
5)
1)
2)

Assault
Defendant Planey
Acting within the
Scope of His
Employment

Defendant
Defendant
Defendant
Defendant
Defendant
Defendant
Defendant

Planey
Powers
Barnes
Padilla
Matthews
Barnes
Matthews

Defendant City of Chicago

- 3 -

Plaintiff
Defendant
Defendant
Defendant
Defendant
Defendant
Plaintiff

Defendant

PLAINTIFF BARRY
GILFAND’S CLAIMS:

DEFENDANTS CHARGED:

JURY VERDICT IN
FAVOR OF:

Fourth Amendment
Excessive Force

Defendant Planey

Plaintiff

Fourth Amendment
Failure to
Investigate and
Discipline

Defendant City of Chicago

Defendant

Battery

1)
2)
3)
4)
5)

1)
2)
3)
4)
5)

Assault

1) Defendant Barnes
2) Defendant Matthews

1) Defendant
2) Plaintiff

Defendant Planey
Acting within the
Scope of His
Employment

Defendant City of Chicago

Defendant

PLAINTIFF ADAM
MASTRUCCI’S
CLAIMS:

Defendant
Defendant
Defendant
Defendant
Defendant

Planey
Powers
Barnes
Padilla
Matthews

DEFENDANTS CHARGED:

Plaintiff
Defendant
Defendant
Defendant
Defendant

JURY VERDICT IN
FAVOR OF:

Fourth Amendment
Excessive Force

Defendant Planey

Defendant

Fourth Amendment
Failure to
Investigate and
Discipline

Defendant City of Chicago

Defendant

Battery

1)
2)
3)
4)

1)
2)
3)
4)

Assault

Defendant Matthews

Defendant

Defendant Planey
Acting within the
Scope of His
Employment

Defendant City of Chicago

Defendant

Defendant
Defendant
Defendant
Defendant

Planey
Barnes
Padilla
Kereakes

- 4 -

Defendant
Plaintiff
Defendant
Defendant

PLAINTIFF SCOTT
LOWRANCE’S
CLAIMS:

DEFENDANTS CHARGED:

JURY VERDICT IN
FAVOR OF:

Fourth Amendment
Excessive Force

Defendant Planey

Plaintiff

Fourth Amendment
Failure to
Investigate and
Discipline

Defendant City of Chicago

Defendant

Battery

1) Defendant Planey
2) Defendant Padilla

1) Plaintiff
2) Plaintiff

Assault

Defendant Matthews

Defendant

Defendant Planey
Acting within the
Scope of His
Employment

Defendant City of Chicago

Defendant

II.

LEGAL STANDARD

Federal Rule of Civil Procedure 59(a)(1)(a) governs motions
for new trials.

It provides that “[t]he court, may, on a motion,

grant a new trial on all or some of the issues . . . after a jury
trial, for any reasons for which a new trial has heretofore been
granted in an action at law in federal court.”

FED . R. CIV .

P. 59(a)(1)(a).

Succeeding on a Rule 59 motion, however, is a

difficult task.

It requires the movant to show that the verdict

was against the manifest weight of the evidence, the damages
awarded are excessive, or other reasons exist as to why the trial
was unfair.

Pickett v. Sheridan Health Care Ctr., 610 F.3d 434,

440 (7th Cir. 2010).

A court will only grant a new trial, if “no

rational jury” could have rendered the verdict.

Moore ex rel

Estate of Grady v. Tuelja, 546 F.3d 423, 427 (7th Cir. 2008).

- 5 -

III.

ANALYSIS

Plaintiffs request this Court grant their Motion for a New
Trial with respect to certain claims.

Specifically, Plaintiffs

move for a new trial on (1) their Monell claim against the
Defendant City of Chicago (the “City”); (2) Aaron Gilfand’s battery
claim against Officer Matthews; (3) their claim that the Defendant
Off-Duty Officers were acting under the color of state law; and (4)
the jury’s compensatory damage award to Aaron Gilfand.

Plaintiffs

contend a new trial is required on these claims because necessary
evidence was improperly excluded pursuant to their Monell and color
of law claims and the jury’s verdict was against the manifest
weight of the evidence with respect to Aaron Gilfand’s battery
claim against Officer Matthews and his compensatory damage award.
A.

Monell Claim

Plaintiffs seek a new trial on their Monell claim against the
City of Chicago alleging that the Court erroneously restricted the
testimony of both parties’ expert witnesses – Dennis Waller and
Jeffrey Noble.

Specifically, Plaintiffs argue that the Court

should have permitted Plaintiffs to utilize specific examples from
the Chicago Police Department’s Complaint Register files that
reported other instances of excessive force complaints against the
named Off-Duty Officer Defendants. Plaintiffs allege this evidence
would have discredited the Defendants’ expert witness who testified
that the City’s investigations following complaints of excessive
force are reasonable.

Plaintiffs also argue this evidence would
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have demonstrated how the Chicago Police Department’s investigation
into such claims is ineffective.
Plaintiffs contend that the Court’s finding that these files
constituted inadmissible hearsay was erroneous.

Plaintiffs argue

that the files themselves are not hearsay, and further allege that
even if they were, the testimony relating to the files should have
been admissible as “admissions by a party opponent, [from] the City
of Chicago.”

Pls.’ Rule 59 Mot. for New Trial on Certain Claims at

4.
Plaintiffs have mischaracterized the Court’s ruling regarding
the restriction of the contents of the Complaint Register Files.
When determining that Plaintiffs were not permitted to use the
specific

contents

of

the

files

for

the

individual

Off-Duty

Officers, the Court determined that if Plaintiffs were unrestricted
in their presentation of the contents of more than 80 files, then
the City would be forced to call witnesses to rebut the evidence of
each file “and the case would go on forever.”
May 9, 2012 at 22.

Tr. of Proceedings,

This ruling was largely grounded in the Court’s

concern for an undue delay during trial, a consideration the Court
must take into account when determining the admissibility of
relevant evidence pursuant to Federal Rule of Evidence 403.

FED .

R. EVID. 403. Because of this concern, the Court allowed Plaintiffs
to elicit testimony regarding the files during the direct and cross
examinations of the parties’ expert witnesses, but restricted
Plaintiffs from presenting the specific contents of the individual
- 7 -

files.

The Court reasoned that this ruling would allow a witness

to testify to his opinion regarding Plaintiffs’ allegations that
the

City

“maintained

a

widespread

practice

of

failing

to

investigate and discipline officers who used excessive force,”
without causing an undue delay.

Pl.’s Rule 59 Mot. for New Trial

on Certain Claims at 3.
A party seeking a new trial based on erroneous evidentiary
rulings bears a “heavy burden.”

Alverio v. Sam’s Warehouse Club,

253 F.3d 933, 942 (7th Cir. 2001).

“The decision whether to admit

evidence is a matter peculiarly within the competence of the trial
court . . . “
Cir. 2003).

Manuel v. City of Chicago, 335 F.3d 592, 595 (7th

To obtain a new trial on the grounds of an erroneous

evidentiary ruling, the party must show that such a ruling affected
his substantial rights.

FED . R. EVID . 103(a).

An erroneous ruling

will only warrant a new trial where the error “had a substantial
influence over the jury, and the result reached was inconsistent
with substantial justice.”

EEOC v. Mgmt. Hospitality of Racine,

Inc., 666 F.3d 422, 440 (7th Cir. 2012).
The Court’s restriction of the contents of Complaint Register
files did not substantially affect the outcome of this trial as
Plaintiffs allege.
their

Monell

claim

In order for Plaintiffs to have succeeded on
against

the

City,

it

was

necessary

for

Plaintiffs to prove that (1) there was a widespread practice of
failing to investigate and discipline officers who used excessive
force; (2) the final policymakers were deliberately indifferent to
- 8 -

this practice; and (3) the practice was a moving force behind the
constitutional violations alleged at trial. See generally, Zentner
v. Dunbar, 205 F.Supp.2d 924, 925 (N.D. Ill. 2002).

As the City

aptly points out, “there is no evidence in the record that any of
the CR [Complaint Register] files for the defendants were flawed in
any of the ways Waller [the Plaintiffs’ expert] opines other
investigations were deficient.”
New Trial at 5.
evidence

that

City’s Resp. to Pl.’s Mot. for a

Moreover, Plaintiffs failed to provide any

established

that

the

City’s

alleged

deficient

practices caused the alleged constitutional violations in the
December 2006 bar fight.

As such, the Court does not find its

decision limiting the use of the Complaint Register files had a
substantially injurious effect on the jury and therefore refuses to
grant a new trial on this basis.
B.

Battery Claim

Plaintiffs also argue a new trial is warranted for Plaintiff
Aaron Gilfand’s battery claim against Officer Matthews. Plaintiffs
contend that the jury’s verdict in favor of Defendant Matthews was
against

the

manifest

weight

of

the

evidence

–

namely,

the

surveillance video evidence which showed Defendant Matthews pulling
Aaron Gilfand away from the center of the brawl.
When a party moves for a new trial alleging that the jury’s
verdict was against the weight of the evidence, the party “must
demonstrate that no rational jury could have rendered a verdict
against [him].”

King v. Harrington, 447 F.3d 531, 534 (7th Cir.
- 9 -

2006).

Courts routinely leave the issue of the credibility and

weight of the evidence to the jury and sustain verdicts if “a
reasonable basis exists in the record to support the outcome.” Id.
citing Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004).
Here, Plaintiffs argue that a reasonable jury could not have
viewed the video evidence and heard the testimony of Defendant
Matthews and found in his favor with respect to Aaron Gilfand’s
battery

claim.

However,

in

their

Motion,

portions of Officer Matthews’ testimony.

Plaintiffs

ignore

At trial, on direct

examination, Plaintiffs questioned Officers Matthews regarding his
deposition:
Q:

Were you asked this question? . . . What,
if anything did you do when you saw that?

A:

I put my hand on his shoulder, and I
pulled him back, and I told him this has
nothing to do with you, sit the F down.

A:

I said that.

Q:

And you said that twice to him, didn’t you?

A:

I could have yes.

Q:

And the second time was more of a strike
in his chest, wasn’t it?

A:

No, I didn’t hit him.

Pls.’ Rule 59 Mot. for a New Trial on Certain Claims, Ex. G at 104.
Later, on cross examination, Officer Matthews also testified:
Q:

Okay. Can you tell me why you did that?
Why did you think that he [Aaron] needed
to sit down?

- 10 -

A:

I saw him move towards the pushing and
shoving, which when he got to the pushing
and shoving, his hands got around Jeff.
I think it’s Jeff. Some of my friends.
So I grabbed him and I pulled him back
out of the pile and put him in the chair
and told him to stay out of it.

Q:

Did you ever punch him?

A:

No.

Q:

Did you ever choke him?

A:

No, I did not.

Id. at 128.
In Illinois a person commits battery if he “(a) acts intending
to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a
contact, and (b) a harmful contact with the person of the other
directly or indirectly results.”

Bakes v. St. Alexius Medical

Center, 955 N.E.2d 78, 85-86 (Ill. App. Ct. 1st Dist. 2011) citing
Restatement (Second) of Torts § 13 (1965).

From this, courts have

stated that “the wilful touching of the person of another or a
successful attempt to commit violence on the person of another
constitutes battery.”

Id. citing Britamco Underwriters, Inc. v.

J.O.C. Enterprises, Inc., 623 N.E.2d 1036 (Ill. 1993).

Here,

Plaintiffs seem to argue that the mere fact Officer Matthews
touched Aaron Gilfand without his consent means that a jury had to
find Defendant Matthews liable to Aaron for battery.

However,

Plaintiffs ignore the elements of civil battery in Illinois which
require a defendant to intend “to cause a harmful contact.”
- 11 -

Id.

After reviewing the Officer Matthews’ testimony, it is clear that
the jury could have reasonably found that the physical contact
Officer Matthews made with Aaron Gilfand neither caused bodily harm
nor was intending to cause harm, and thus, did not warrant a
finding of battery.

Because of this, the Court finds that this is

not a case in which “no rational jury could have rendered the
verdict.”

Moore v. Tuleja, 546 F.3d 423, 427 (7th Cir. 2008).
C.

Color of Law Evidence and Directed Verdicts

Plaintiffs also move for a new trial on the Defendants’
actions allegedly being under color of law.

Plaintiffs argue that

the Court inappropriately conducted a narrow assessment of the
color of law issue and this narrow assessment led the Court to
grant Defendants’ directed verdict.

The Court disagrees.

After Plaintiffs’ presented their evidence, the Court granted
Defendants’

Motion

for

a

Directed

Verdict

finding

that

all

Defendants, with the exception of Off-Duty Officer Planey, were not
acting under color of law at the time of the incident.

As a result

of this ruling, the Court dismissed all of Plaintiffs’ § 1983 and
failure to intervene claims against the Responding Officers and
Off-Duty Officers Padilla, Kereakes, Matthews, Barnes, Powers, and
Woosley.

Plaintiffs argue this finding was erroneous.

“Rule 50 authorizes a court to enter judgment as a matter of
law if “a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.”

Venson v.

Altamirano, 827 F.Supp.2d 857, 861 (N.D. Ill. 2011) citing FED . R.
- 12 -

CIV. P. 50(a)(1).

The question the Court faces is “whether the

evidence as a whole, when combined with all reasonable inferences
permissibly drawn from the evidence is sufficient to find in favor
of the plaintiff.”

Hall v. Forest River, Inc., 536 F.3d 615, 619

(7th Cir. 2008).
Plaintiffs argue that the Court conducted an inappropriately
narrow assessment of Plaintiffs color of law claims by “examining
each Officers’ specific actions separately.”
Trial at 19.

Pl.’s Mot. for a New

Plaintiffs also argue this Court’s reliance on

Zienciuk v. City of Chicago was misplaced.

Zienciuk v. City of

Chicago, No. 01-C-3769, 2002 WL 1998309 (N.D. Ill. Aug. 28, 2002).
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that “a government official, acting under the color of state
law, deprived [him] of a right secured by the Constitution . . . “
Heyde v. Pittenger, 633 F.3d 512, 516 (7th Cir. 2011).

“The

traditional definition of acting under color of state law requires
that

the

defendant

in

a

§

1983

action

have

exercised

power

‘possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.’” Currie
v. Cundiff, 09-CV-866-MJR, 2012 WL 2711469 at * 5 (S.D. Ill.
July 8, 2012) citing West v. Atkins, 487 U.S. 42 (1988).

“[T]he

mere fact that a defendant is a police officer does not mean that
he or she acted under the color of state law.”
465 F.Supp.2d 864, 869 (N.D. Ill. 2006).

Chavez v. Guerrero,

In determining whether a

police officer is acting under color of law or is engaged in
- 13 -

private pursuit, it is “the nature of the specific acts the police
officer performed.”

Pickrel v. City of Springfield, 45 F.3d 1115,

1118 (7th Cir. 1995).
Plaintiffs

fail

to

cite

any

authority

to

support

their

assertion that this Court erred in individually analyzing whether
each Defendant Officer was acting under color of law.

Plaintiffs

seem to assert that the Court should have examined the Defendant
Off-Duty Officers as a group or a team rather than examine their
individual actions to determine whether they were acting under
color

of

law.

This

proposition

lacks

merit.

It

is

well

established that the inquiry into color of law turns on the
individual acts of the individual officers.

See generally, Wilson

v. Price, 624 F.3d 389, 392 (7th Cir. 2010).
In making its determination that Defendant Planey could be
found by a jury to have acted under color of law, but the other
Defendant Off-Duty Officers could not, the Court was persuaded by
the fact that Officer Planey displayed his badge and ordered one of
the Plaintiffs to leave the bar.

The Court noted that Plaintiffs

failed to present any similar evidence against the other Off-Duty
Officers.

Thus, the Court entered a directed verdict in favor of

the Defendant Off-Duty Officers (except Planey).

See Pesek v.

Marzullo, 566 F.Supp.2d 834, 839-46 (N.D. Ill. 2008) (granting
summary judgment for defendants where plaintiff failed to establish
evidence that those defendants were acting under color of law, but
refusing to grant summary judgment for another defendant because he
- 14 -

“flashed his badge” and ordered individuals to leave the bar).

As

such, the Court rejects Plaintiffs’ argument requesting a new trial
based on the Court’s examination of the acts of the individual
Defendant Officers.
Next, Plaintiffs contend that the Court erroneously relied on
Zienciuk v. City of Chicago to support its decision to grant
Defendants’ motion for a directed verdict.
Chicago, 2002 WL 1998309 at *1-4.

Zienciuk v. City of

Plaintiffs argue that Zienciuk

is distinguishable from their case because in Ziencuik, “there were
no uses of police authority whether overt or subtle.”
for a New Trial on Certain Claims at 19-20.

Pls.’ Mot.

The Court finds

Plaintiffs’ reading inaccurate.
In Ziencuik, a plaintiff alleged various state law claims and
excessive force claims under § 1983 against two Chicago Police
Officer defendants and the City of Chicago for a bar fight that
occurred while the defendant officers were Off-Duty.

Ziencuik v.

City of Chicago, No. 01-C-3769, 2002 WL 1998309 at *1-4.

The

plaintiff in Ziencuik argued that the defendant officers were
acting under color of law and alleged that the City was liable
because at one point during the brawl, one of the officers stated,
“we are the police.”

Id. at *2.

In granting summary judgment in

favor of the City, the court determined:
The only allegation that comes close to
establishing they implicated their state
authority is that, after Ziencuik [the
plaintiff] asked the bartender to call the
police, someone answered, “we are the police.”
- 15 -

Even if such a flippant retort, made well
after the battery was underway, could be
interpreted as an assertion of state office,
“a mere assertion that one is a state officer
does not necessarily mean that one acts under
color of state law.”
Id. at * 5 citing Gibson v. City of Chicago, 910 F.2d 1510, 1516
(7th Cir. 1990).
Like Zienciuk, here the Defendant Off-Duty Officers, other
than Officer Planey, were Off-Duty, not in uniform, did not display
their badges, and did not display any weapons.

In addition to

this, Plaintiffs did not even know that the Off-Duty Officers were
police officers until after the altercation was over and the
Defendants left the scene.

See Bladdick v. Pour, No. 09-CV-330-

WDS, 2010 WL 5088815 at *4-6 (S.D. Ill. Dec. 8, 2010) (finding an
Off-Duty police officer was not acting under color of law when the
Off-Duty officer was not in uniform and the plaintiff had “no idea”
that the man was an officer until after the fact).
Plaintiffs argue Stengel v. Belcher, a case from the Sixth
Circuit, is more analogous to their case than Zienciuk. Stengel v.
Belcher, 522 F.2d 438 (6th Cir. 1975).

Notwithstanding Stengel’s

lack

Court,

of

binding

authority

to

Plaintiffs’ comparison ludicrous.

this

the

Court

finds

First, in Stengel, the Off-Duty

police officer defendant tragically shot and killed two young men
and paralyzed a third.

Next, the Off-Duty officer in Stengel

possessed both his Off-Duty weapon and a police issued can of mace
at the time the incident occurred.

Id. at 441.

- 16 -

To top it off, the

record in Stengel contained a letter addressed to the Off-Duty
officer from the Director of the Department of Safety which stated
there was “a specific finding that your actions [the Off-Duty
officer’s] were in the line of duty.”

Id.

It is clear that the facts in this case are not analogous to
the facts in Stengel.

The Court finds the same is true with

respect to Plaintiffs’ reliance on Butler v. Corral where the court
denied a defendant Off-Duty officer’s summary judgment motion in
part because
plaintiff.

the

officer threatened

to

arrest and

shoot

the

Butler v. Corral, No. 98-C-802, 1999 WL 1069246 at *4

(N.D. Ill. Nov. 22, 2009).
made no such threats.

Here, the Defendant Off-Duty Officers

As a result, the Court rejects Plaintiffs

assertions that its reliance on Zienciuk was improper.
Plaintiffs also argue that the Defendant Off-Duty Officers
other than Officer Planey were acting under the color of law
because they stated that they were trying to “keep the peace” and
“de-escalate”

the

situation.

Plaintiffs

allege

that

these

statements show that the Defendants were trying to protect the
public and therefore are indicative of actions taken under color of
law.

Plaintiffs offer no authority to support the fact that

comments like these automatically transform an Off-Duty officer’s
actions into the actions of the State for the purposes of § 1983.
As such, the Court is not persuaded.
Finally, Plaintiffs argue that the Court erroneously excluded
testimony

from

Defendant

Powers

regarding

- 17 -

Powers’

deposition

testimony.

Specifically, Plaintiffs allege the Court erred in

sustaining

Defendants’

objection

to

the

line

of

questioning

regarding why Powers assisted Planey at the time of the incident.
At his deposition, Powers testified that part of the reason why he
rushed toward Planey during the altercation was because Planey was
in a “one on one situation” and Powers “wanted to be there for his
safety.”
95.

Pls.’ Mot. for a New Trial on Certain Claims, Ex. Q, at

In his deposition, Powers explained that in police training,

officers are taught that when there is one subject there should be
two officers present.

Id.

Plaintiffs argue this evidence would

have shown that Powers was acting under color of law.

However,

Plaintiffs again fail to cite any authority, and fail to take into
account the

other

evidence

that

Powers

was Off-Duty,

not

in

uniform, did not display a weapon, did not assert that he was an
officer, and never threatened to arrest Plaintiffs. Therefore, the
Court

does

not

find

the

exclusion

of

such

evidence

substantially injurious effect to warrant a new trial.

had

a

See Mgmt.

Hospitality of Racine, Inc., 666 F.3d at 440.
D.

Damages

Plaintiffs conclude their Motion by arguing that the jury’s
award of compensatory damages was insufficient and that this award
reflects “an inconsistent verdict.”
Certain Claims at 28.

Pls.’ Mot. for a New Trial on

Plaintiffs argue that since the jury found

Defendant Planey liable for excessive force and battery to Aaron
Gilfand, it was required to fully compensate Aaron Gilfand for his
- 18 -

injuries.

Plaintiffs explain that the jury erroneously awarded an

insufficient verdict amount because of the prejudicial evidence the
jury heard regarding the Defendant Off-Duty Officers’ finances.
“The Seventh Amendment to the Constitution requires that the
Court accord substantial deference to the jury’s assessment of
compensatory damages.” Spina v. Forest Pres. Dist. of Cook County,
207 F.Supp.2d 764, 771 (N.D. Ill. 2002) citing Ramsey v. American
Air Filter Co., Inc., 772 F.2d 1303, 1313 (7th Cir. 1985).
“Underlying this deference to a jury’s assessment of damages is the
acknowledgment that the actual measure of damages is an exercise of
factfinding.”

Id. citing Cygnar v. City of Chicago, 865 F.2d 827,

847 (7th Cir. 1989).

The jury’s award must, nevertheless, be

reasonable to be sustained.

Cygnar, 865 F.2d at 848.

After reviewing the trial testimony, the Court finds the award
reasonable.

At trial, Aaron Gilfand testified that he believed

Defendant Barnes punched him in the face, breaking his nose and
splitting his face open.

See Defs.’ Resp. to Pls.’ Mot. for a New

Trial, Ex. F-1, at 116-117, 127-128, 130-132 149-150.

During

Aaron’s testimony, Plaintiffs’ attorney presented various medical
records and bills indicating that Aaron had to have surgery for a
broken nose.
When the jury returned its verdict, it found Defendant Planey,
not Defendant Barnes, liable for excessive force and battery
against Aaron.

The jury did not find Defendant Barnes liable to

Aaron Gilfand for any of his claims.
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Because of this, it is

plausible that the jury determined that while Planey was liable for
battery and excessive force to Aaron, Defendant Planey was not
responsible for Aaron’s broken nose, and therefore should not be
required to pay the entirety of his medical bills.
Thus, the Court denies Plaintiffs’ Motion for a New Trial
based on the jury’s compensatory damage award to Aaron Gilfand.
IV.

CONCLUSION

For the reasons stated herein, Plaintiffs’ Motion for a New
Trial [DKT 501] is denied.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:11/13/2012

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