Baker v. Holman et al

Filing 132

MEMORANDUM OPINION re 131 Order on Motion for Judgment as a Matter of Law, Alternatively for a New Trial on Damages. Signed by District Judge Sharion Aycock on 6/13/2011. (kmc)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ESPERONDA BAKER

PLAINTIFF

V.

CIVIL ACTION NO: 1:09CV36-A-D

ROGERS LEE HOLMAN,
In His Individual Capacity

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Esperonda Baker, filed suit against former police officer, Rogers Lee
Holman, in his individual capacity under 42 U.S.C. Section 1983 and state law on February
12, 2009. Plaintiff alleges that Holman raped her while he was on duty as a police officer
with the City of Okolona. A trial was held in October 2010, and the jury rendered a verdict
finding: (1) that Holman did not commit a sexual assault against Plaintiff; (2) that Holman
acted negligently in engaging in sexual intercourse with Plaintiff; and (3) that Plaintiff was
entitled to “0.00” in damages. Before the Court is Plaintiff’s Motion for Judgment as a Matter
of Law, Alternatively for a New Trial on Damages [129].
Plaintiff sets forth three separate grounds in support of her Motion. First, Plaintiff
contends that the Court erred in its jury instruction on Plaintiff’s 42 U.S.C. Section 1983
claim. Second, Plaintiff states that the Court erred in excluding Plaintiff’s statements that she
wished to take a polygraph examination. Third, Plaintiff urges that the jury’s verdict is
internally inconsistent. The Court considers each argument in turn.1

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The Court notes that the Defendant entirely failed to respond to Plaintiff’s Motion.

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ANALYSIS AND DISCUSSION
A. Color of Law
Plaintiff first alleges that the Court erred in the jury instruction it gave on Plaintiff’s
Section 1983 claim, thus claiming that a new trial is necessary. The Federal Rules of Civil
Procedure permits a trial court to grant a new trial based on that court’s appraisal of the
fairness of the trial and the reliability of the jury’s verdict. FED. R. CIV. P. 59. The rule does
not specify what grounds are necessary to support such a decision, but states only that the
action may be taken “after a jury trial, for any reason 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); see also Smith
v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985). A new trial may be granted, for
example, if the district court finds that the verdict is against the weight of the evidence, the
damages awarded are excessive, the trial was unfair, or prejudicial error was committed in the
course of the trial. See, e.g., Eyre v. McDonough Power Equip., Inc., 755 F.2d 416, 420-21
(5th Cir. 1985); Westbrook v. Gen. Tire and Rubber Co., 754 F.2d 1233, 1241 (5th Cir.
1985); Carson v. Polley, 689 F.2d 562, 570-71 (5th Cir. 1982); Martinez v. Food City, Inc.,
658 F.2d 369, 372-74 (5th Cir. 1981); Conway v. Chem. Leaman Tank Lines, Inc., 610 F.2d
360, 363 (5th Cir. 1980).
The jury instruction given in this case reads as follows:
The Court instructs the jury that the right not to be sexually assaulted under
color of state law is a clearly established federal constitutional right, and that
being assaulted under color of state law violates the substantive due process
clause of the United States Constitution.

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A person acts under color of state law if he misuses power possessed by virtue
of state law and made possible only because the wrongdoer is clothed with the
authority of state law. Under color of law means under pretense of state law.
If you find by a preponderance of the evidence that: (1) Defendant
intentionally committed acts that violated one or more of Plaintiff’s federal
constitutional rights; (2) In doing so, Defendant acted “under color” of the
authority of the State of Mississippi; and (3) Defendant’s acts were the legal
cause of Plaintiff’s damages, then you must find for the Plaintiff, Esperonda
Baker.
(emphasis added). Plaintiff asserts that the jury instruction should not have included a
reference to whether the Defendant acted under color of state law. That is, Plaintiff asserts
that this was error “since the evidence is clear that Defendant acted under color of state law.”
Plaintiff further asserts that the determination of whether one acted under color of state law is
always a pure issue of law; thus, it should never be referenced in a jury instruction. The Court
disagrees.
First, the above-italicized portion of the Court’s instruction almost entirely mirrors the
Fifth Circuit’s pattern jury instruction for 42 U.S.C. Section 1983. To be clear, this pattern
instruction does indeed state that the plaintiff must prove “the defendant(s) acted ‘under color’
of the authority of the State of ______.” Second, in United States v. Causey, 185 F.3d 407,
415-16 (5th Cir. 1999), the Fifth Circuit held that there was sufficient evidence for the jury to
conclude that a police officer acted under color of state law in arranging for the murder of an
individual who had filed a complaint against him with the internal affairs division of the
police department. Third, during an oral argument on this matter, Plaintiff relied on the case
of United States v. Dillon, 532 F.3d 379 (5th Cir. 2008) for the proposition that a reference to
under color of state law should not be contained within a jury instruction. Ironically, in

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Dillon, the jury actually did consider whether the defendant was acting “under color” of law.
On appeal to the Fifth Circuit, the Dillon court expressly held that “a reasonable jury could
have found, considering the totality of the circumstances, that the[] [defendant’s] statements
were invocations of [the defendant’s] authority.” Id. at 387 (emphasis added); see also, e.g.,
Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 128 (1st Cir. 1999) (jury question whether
police officers acted under color of state law when beating and handcuffing civilian during
altercation); Jones v. Gutschenritter, 909 F.2d 1208 (8th Cir. 1990) (police officer
accompanied landlord when he disconnected tenant’s electrical service; jury question whether
landlord acted under color of state law); Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980)
(“Although in certain cases, it is possible to determine the question whether a person acted
under color of state law as a matter of law, there may remain in some instances unanswered
questions of fact regarding the proper characterization of the actions for the jury to decide.”).
Plaintiff also contends that the evidence was “clear” in this case that the Defendant
acted under color of state law. Thus, the Plaintiff claims that she should be entitled to a
judgment as a matter of law. Rule 50 of the Federal Rules of Civil Procedure sets forth the
standard for granting judgment as a matter of law:
If a party has been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to
find for the party on that issue, the court may: (A) resolve the issue against the
party; and (B) grant a motion for judgment as a matter of law against the party
on a claim or defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue . . . In ruling on a renewed
motion, the court may: (1) allow judgment on the verdict, if the jury returned a
verdict; (2) order a new trial; or (3) direct entry of judgment as a matter of law.
FED. R. CIV. P. 50(a)(1), (b).

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In applying this standard, the court must consider all of the evidence in the light most
favorable to the nonmovant, drawing all reasonable factual inferences in that party’s favor,
and leave credibility determinations and the weighing of evidence to the jury. McCrary v. El
Paso Energy Holdings, Inc., 209 F. Supp. 2d 649, 651 (N.D. Miss. 2002) (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-50, 120 S. Ct. 2097, 147 L. Ed. 2d 105
(2000)). The court should grant a motion for judgment as a matter of law only when “the facts
and inferences point so strongly and overwhelmingly in favor of [the moving] party that the
court believes that reasonable [jurors] could not arrive at a contrary verdict.” Boeing Co. v.
Shipman, 411 F.2d 365, 374 (5th Cir. 1969).
In considering a Rule 50(b) motion for judgment as a matter of law following a jury
verdict, the court must be “especially deferential” to the jury’s findings. Brown v. Bryan
Cnty, 219 F.3d 450, 456 (5th Cir. 2000). The Fifth Circuit’s standard for evaluating a Rule
50(b) motion for judgment as a matter of law following a jury verdict is whether “the state of
proof is such that reasonable and impartial minds could reach the conclusion the jury
expressed in its verdict.” Am. Home Assur. Co. v. United Space Alliance, 378 F.3d 482, 487
(5th Cir. 2004). A jury verdict must stand unless there is lack of substantial evidence, viewed
in the light most favorable to the successful party, to support the jury’s factual findings, or the
legal conclusions implied from the jury’s verdict cannot, in law, be supported by those
findings. Id.
Section 1983 provides for a claim against anyone who “under color of any statute,
ordinance, regulation, custom, or usage, of any State” violates another’s constitutional rights.
42 U.S.C. § 1983. A person acts under color of state law if he misuses “power ‘possessed by

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virtue of state law and made possible only because the wrongdoer is clothed with the authority
of state law.’” West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988)
(quoting United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941)).
“Under ‘color’ of law means under ‘pretense’ of law.” Screws v. United States, 325 U.S. 91,
111, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); see also Brown v. Miller, 631 F.2d 408, 411 (5th
Cir. 1980) (explaining that an act of an officer, not taken with authority or under cloak of
authority, will not be considered under color of state law “simply because the individual,
although pursuing private aims, happens to be a state officer”). “Acts of officers performing
their official duties are included whether they hew to the line of their authority or overstep it,
but acts of officers in the ambit of their personal pursuits are generally excluded.” Bustos v.
Martini Club Inc., 599 F.3d 458, 464 (5th Cir. 2010) (internal quotations omitted). In other
words, “if an officer pursues personal objectives without using his official power as a means
to achieve his private aim, he has not acted under color of state law.” Id. (citing Townsend v.
Moya, 291 F.3d 859, 861 (5th Cir. 2002)).
The Fifth Circuit has given significant guidance on the question of whether one was
acting “under color of law” when the officer was pursuing what at least could be construed as
a “private” aim. For instance, in United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991),
the Fifth Circuit held that a deputy sheriff acted under color of state law when he lured his
wife’s former lover to his home and assaulted him. The court noted that Tarpley did not
“simply” use his service weapon and identify himself as a police officer. Id. He claimed to
have authority for his actions because he was an officer of the law. Id. The court also found it
significant that Tarpley summoned another officer to his house, who identified himself as a

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fellow officer, and that they “proceeded to run [the victim] out of town in their squad car.” Id.
Because “[t]he presence of police and the air of official authority pervaded the entire
incident,” the court concluded that Tarpley acted under color of law, stating: “Under these
circumstances, we are unwilling to say that no rational juror could find that Tarpley acted
under color of law.” Id. (emphasis added).
In Bennett v. Pippin, 74 F.3d 578, 589 (5th Cir. 1996), the Fifth Circuit held that the
defendant – a sheriff – acted under color of law when he raped a woman whom he had just
finished questioning about a shooting he was investigating. The sheriff responded to the
victim’s refusal of his advances by saying, “‘I can do what I want, I’m the Sheriff.’” Id.
Additionally, the sheriff admitted that he used his authority to discover that the victim’s
husband would not be home and had entered her property by virtue of his authority as sheriff,
and it was established that the victim needed the sheriff’s permission to retrieve her pickup
truck. Id. These actions were held to have a “real nexus” with the sheriff’s authority. Id.
As briefly discussed above, the Fifth Circuit, in United States v. Causey, 185 F.3d
407, 415-16 (5th Cir. 1999), held that the defendant – police officer Davis – was acting under
color of law when he conspired to murder an individual who had filed an internal affairs
complaint against him. In order to carry out the murder, officer Davis held a meeting with his
co-conspirators at the police station, used his police car to show the co-conspirators where to
find the victim, communicated with the co-conspirators via his police radio, secured the
cooperation of his accomplices by assurance of police protection, and planned to use his
official authority to cover up the murder at the crime scene. Id. at 415. The court held that
Davis was uniquely able to do these things because of his position as a police officer, so there

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was a sufficient nexus between his use and abuse of the power conferred on him by law and
the murder to satisfy the color of law requirement. Id. at 415-16.
In contrast, the Fifth Circuit, in Townsend v. Moya, 291 F.3d 859, 860 (5th Cir. 2002),
held that the defendant – a prison guard – did not act under the color of law when he stabbed
Townsend, an inmate, after the two men entered into a game of “‘come on’” in which they
took turns referring to each other as “‘my bitch’” or “‘whore.’” In reaching this decision, the
court held that the two men were engaging in horseplay, a purely private action, so the prison
guard was not acting under color of law when he stabbed Townsend, even though he used “a
knife he possessed by virtue of his position and authority.” Id. at 862; see also, e.g.,
Delcambre v. Delcambre, 635 F.2d 407 (5th Cir. 1981) (chief of police on duty at police
station assaults sister-in-law; not acting under color of law because victim not arrested or
threatened with arrest).
Finally, in United States v. Dillon, 532 F.3d 379 (5th Cir. 2008), the Fifth Circuit
found that an assistant city attorney (ACA) was acting under color of law when he sexually
assaulted two women (Carolyn Carter and Sandy Carraby). The Dillon court began by noting
that, while Dillon did not use equipment obtained through his official position to commit the
sexual assault, his attacks were not disconnected from his position of authority. Id. at 386. The
court noted that during trial, there was evidence presented that both Carter and Carraby
initially met Dillon through his position as an ACA. Id. They came to his office because they
believed that his position as an ACA enabled him to help them with their legal problems:
Carter sought his fixing her tickets and help in having her son released from jail and Carraby
thought he was going to give her a drug test so she could have her pending marijuana charge

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dismissed. Id. The testimony of Carter and Carraby indicated that they thought that Dillon’s
position as an ACA put him in a position to help them. Id. However, even given this, the Fifth
Circuit still noted that “the fact that Dillon took advantage of his position to initially become
acquainted with his victims does not alone suffice to find that his subsequent assaults were
under color of law.” Id. The court stated that “[t]here needs to have been a more meaningful
nexus between the defendant’s use or abuse of his position of actual or ostensible authority
and the actual commission of the offense.” Id.
The Dillon court went on to examine whether, given the additional facts present in the
case, a meaningful nexus existed as to find that Dillon was acting under color of law. Id. The
court found that such a nexus existed because Dillon “verbally invoked his power before,
during and after he sexually assaulted Carter and Carraby.” Id. As to Carter, after Dillon
placed a call to the judge who ultimately paroled Carter’s son, he boasted that he told her he
could “make it happen.” Id. He then proceeded to kiss her and when she resisted he told her
that he knew “a lot of police officers and he [could] have anybody arrested” and that Carter
should “[q]uit acting like a baby” if she wanted her son out of jail. Id. Dillon, by his
statements, also left Carter under the impression that he could have her son re-arrested at any
time, in his effort to keep her from reporting him. Id. As to Carraby, Dillon told her that to
get her marijuana charge dismissed, which he in effect had led her to believe he could and
would do as an ACA, she would have to come to his “other” office for a (completely bogus)
marijuana test. Id. Then, before sexually assaulting her there, Dillon told her that nobody
would believe her if she reported him because she had a lewd conduct charge on her record.
Id. Carraby also testified that Dillon warned her not to tell anyone about the assault or he

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would “come after [her] and [her] family.” Id. The Fifth Circuit found that such statements
“clearly invoked [Dillon’s] actual or perceived power as a city prosecutor . . . The statements
carried with them an air of official authority.” Id. at 387. Thus, Dillon was found to be acting
under color of law. Id.
At trial in this case, there were several heavily disputed factual allegations concerning
the events of the night in which Plaintiff alleges she was raped. Whether or not the Defendant
was in fact acting under color of state law is in part dependent upon the resolution of these
disputed facts. That is, there were several factual questions presented during trial concerning
whether the Defendant in fact used his actual or perceived power as a police officer in order to
engage in sexual relations with the Plaintiff. For example, at trial, Plaintiff maintained that
the Defendant came to her house stating that he needed some assistance concerning police
business. Specifically, Plaintiff asserted that the Defendant appeared at her house claiming
that he had chased some children to Plaintiff’s aunt’s house and that he needed Plaintiff’s
assistance in locating the children. Plaintiff contended that this was the first time she had ever
met the Defendant and that she agreed to assist him. Plaintiff further alleged that, upon
leaving Plaintiff’s home, the Defendant drove in the opposite direction of where they were
supposed to be going and, when he stopped the car, he raped her.
Defendant denied all of Plaintiff’s allegations, asserting that he and the Plaintiff had
made plans to meet up later that night – specifically at 1:00 a.m. Defendant asserted that,
when Plaintiff failed to meet him at their designated time, he drove to her house. Defendant
contended that Plaintiff told him she had fallen asleep, and that, after arriving at Plaintiff’s
house, Plaintiff voluntarily got in Defendant’s car – not for the purpose of assisting in any

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police business, but instead for the sole purpose of engaging in sexual intercourse as had been
previously discussed. Given these contested factual allegations, the evidence is not quite as
“clear” as Plaintiff asserts. Even if – as Plaintiff avers – the Defendant took advantage of his
position to initially become acquainted with the Plaintiff, as the Fifth Circuit noted in Dillon,
this fact “does not alone suffice to find that his subsequent assaults were under color of law.”
532 F.3d at 386. Further, whether Defendant acted “under color of state law [is] not
depend[ent] on his on- or off- duty status at the time of the alleged violation.” Bustos, 599
F.3d at 464. If the jury accepted the Defendant’s version of the facts, they could have found
that the Defendant was not acting under color of state law. That is, a reasonable jury could
have found that the Defendant, in engaging in sexual relations with the Plaintiff, acted in the
ambit of his own personal pursuit, without using his official power as a means to achieve such
a private aim. Thus, because there were numerous unanswered and disputed factual
allegations concerning what exactly occurred between Plaintiff and Defendant on the night in
question and that the jury instruction given in this case mirrors the Fifth Circuit’s pattern
instruction, the Court finds that it did not err in the jury instruction on Plaintiff’s Section 1983
claim. As such, Plaintiff’s Motion for Judgment as a Matter of Law or for a New Trial is
denied.
B. Polygraph-Related Evidence
Plaintiff next asserts that the Court erred when it excluded the Plaintiff’s willingness
to take a lie detector test. During trial, Plaintiff wished to introduce two different pieces of
evidence: (1) the deposition of police offer Willie Moore, who stated that Plaintiff asked him
to take a polygraph and that Plaintiff took and “did good” on the polygraph examination, and

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(2) a statement from Plaintiff on July 16, 2010, to a highway patrol investigator stating that
she wished to take a lie detector test. Plaintiff is not challenging the Court’s decision to
exclude Plaintiff’s polygraph results; rather, Plaintiff only asserts that she should have been
allowed to introduce evidence of her “offer” to take the polygraph test as evidence probative
of her “truthfulness.” At trial, the Court conducted a Federal Rule of Evidence 403 balancing
test and determined that the evidence should be excluded.
While the Fifth Circuit has removed the per se barrier against the admissibility of
polygraph evidence, see United States v. Posado, 57 F.3d 428, 433 (5th Cir. 1995), the Fifth
Circuit has not directly addressed the admissibility of “offers” to take polygraph
examinations. However, “[m]ost courts . . . have been wary of this type of self-serving
evidence.” United States v. Dinga, 609 F.3d 904, 908 (7th Cir. 2010). In Dinga, the defendant
argued that his offer was relevant to his consciousness of innocence and credibility, and that it
was especially probative in a case dependent on his credibility. Id. The defendant emphasized
that he had not yet talked to an attorney and that his offer was genuine, without knowledge
that the results of any such exam might not be admissible in court. Id. The district court
excluded the evidence.
On appeal, the Seventh Circuit found no abuse of discretion. Id. at 909. The court began
by noting that “[t]here has long been a debate over the admissibility of polygraph testing
results,” and “[a]s a general matter, the same is true of offers to take polygraph tests.” Id. at
908. The court went on to find that,
A juror, having little understanding of the admissibility or reliability of any
subsequent results, may erroneously believe that any offer necessarily meant
Dinga was innocent. More importantly, Dinga’s offer to take a test would only

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be only marginally probative as to his credibility. Absent an agreement that
polygraph results (favorable or not) would be admissible in court, Dinga had
little at stake by expressing his willingness to submit to a polygraph test. No test
was ever taken, and there is no way of knowing what Dinga knew about the
subsequent admissibility of any such test results. He may have believed that the
test would be taken and the results would be admissible, or he may have known
that he would never submit to a test, or he may have believed that any results
would be inadmissible in court. The great potential of confusing the issues and
misleading the jury substantially outweighed any probative value of the offer as
to Dinga’s credibility. The district court’s decision to exclude Dinga’s “offer” to
take a polygraph test was not an abuse of discretion.
Id. at 908-09; see also United States v. Burstein, 560 F.2d 779, 785 (7th Cir. 1977) (finding
that an “offer of a willingness to submit to a polygraph is so unreliable and self-serving as to
be devoid of probative value”).
In contrast, the Sixth Circuit has shown slightly more willingness than the Seventh
Circuit to allow polygraph evidence. For example, the court has noted that “in limited
circumstances, evidence of a party’s willingness to submit to a polygraph may, within the
discretion of the trial court, become admissible if it is relevant.” Wolfel v. Holbrook, 823 F.2d
970, 972 (6th Cir. 1987) (emphasis added). Recently, in United States v. Stephens, 148 F.
App’x 385 (6th Cir. 2005), the Sixth Circuit addressed the issue of polygraph evidence and
concluded that the district court did not abuse its discretion in refusing to permit defense
counsel to elicit testimony that defendant had offered to take a lie detector test. The court
noted that “the defendant did not agree to allow the result of the examination, whatever it
might reflect, to be admitted into evidence. Thus, the defendant did not have the requisite
adverse interest at stake to cloak his willingness with credibility.” Id.2

2

The Stephens court also excluded the evidence as irrelevant.

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In Jones v. Geneva Pharmaceuticals, Inc., 132 F. App’x 772, 776 (10th Cir. 2005), the
Tenth Circuit addressed the issue of the admissibility of the offer to take a polygraph in a civil
action under the Age Discrimination in Employment Act. The district court, in excluding the
evidence, viewed plaintiff’s argument as an end run around Daubert v. Merrell Dowel
Pharmacy, and found that any probative value the testimony would have was substantially
outweighed by the danger of unfair prejudice under Rule 403. On appeal, the plaintiff
asserted that the court erred by not allowing her to testify to her willingness to take a
polygraph when she was not seeking to admit the polygraph results. The Tenth Circuit
concluded that the district court did not abuse its discretion. The Tenth Circuit held as
follows:
Polygraph tests are generally inadmissible in this circuit. Palmer v. City of
Monticello, 31 F.3d 1499, 1506 (10th Cir. 1994). If a party seeks to admit a
polygraph test, that party must satisfy the criteria for admission under Daubert.
United States v. Call, 129 F.3d 1402, 1404 (10th Cir. 1997). For this same
reason, we agree with the District Court that testimony establishing that Ms.
Jones simply offered to take a polygraph test is also inadmissible:
By offering such evidence, the plaintiff intends the jury to presume that her
submission to a polygraph examination would have revealed the truth. In other
words, the probative value of the plaintiff’s proffer is dependent upon the jury
believing that the polygraph examination is a reliable indicator of honesty . . . .
The plaintiff, however, has no intention of making the rigorous showing of the
examination’s reliability and effectiveness under Daubert or [FED. R. EVID.]
702. Thus, under these circumstances, permitting the plaintiff to testify as to
her offer without first qualifying the polygraph testing under Daubert would be
improper.
Moreover, given that the probative value of Ms. Jones’s proffered testimony
rides on the reliability of the polygraph itself and that Ms. Jones does not wish
to demonstrate the polygraph’s reliability or effectiveness, we agree with the
District Court that this evidence’s probative value is substantially outweighed
by the danger of unfair prejudice to Geneva. Therefore, we find no abuse of

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discretion in prohibiting Ms. Jones’s proffered testimony that she offered to
take a polygraph.

Id. (brackets in original).
The Ninth Circuit, in a brief opinion, addressed a similar issue in United States v.
Elekwachi, 111 F.3d 139 (9th Cir. 1997). In Elekwachi, the district court excluded evidence
of Elekwachi’s willingness to take a polygraph examination, finding that such evidence would
encourage the jury to speculate about the results of the polygraph examination. On appeal,
Elekwachi contended that because the polygraph evidence was being introduced for a purpose
unrelated to the results of a polygraph examination or whether one was ever administered, the
district court abused its discretion in refusing to admit this evidence. Further, Elekwachi
argued that, because he did not seek to introduce evidence of an actual polygraph examination
or its results, that there was no reason for the jury to have speculated about the possible results
of a polygraph.

In addressing the issue on appeal, the Ninth Circuit first noted that

“[a]lthough we recently held that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) overrules the per se rule excluding unstipulated polygraph evidence, United States v.
Cordoba, 104 F.3d 225, 228 (9th Cir. 1997), the decision of whether to admit polygraph
evidence remains discretionary with the trial court.” Id. Next, the court, in analyzing Federal
Rule of Evidence 403, found that “[t]he fact that the defendant offered to submit to a
polygraph had only slight probative value.” Id. Thus, the court went on to hold that the

15 

district court’s determination that the evidence regarding a polygraph examination would
unduly confuse the jury was not an abuse of discretion.3
While, as noted, the Fifth Circuit has not addressed the precise question at issue here,
the Fifth Circuit did provide some relevant guidance in United States v. Posado. In removing
the per se bar against the admissibility of polygraph results, the Posado court first admonished
that “polygraph evidence” must meet the standard under Daubert and Rule 702. Posado, 57
F.3d at 434. Next, and more important to this case, the Posado court examined Federal Rule
403. Id. at 435. The court noted that several factors were present in Posado that boosted the
probative value of the evidence under Rule 403, and simultaneously reduced any prejudice
that might result. For example, in Posado, the opposing side was contacted before the tests
were conducted and they were offered the opportunity to participate in the exams. Id.
Similarly, the parties created stipulations as to any limited use for the evidence. Id. Due to
this, both parties had a risk in the outcome. Further, the evidence was not offered at trial
before a jury, but in a pretrial hearing before the district court judge. Id. The rules of evidence
are relaxed in pretrial suppression hearings. See FED. R. EVID. 104(a).
While the Court agrees with the Plaintiff in this case that an offer to take a polygraph
is much different than introducing the results of a polygraph examination, the Court
nonetheless finds such evidence prejudicial under Rule 403. First, Plaintiff proffers the
following reason as to why her offer to take a polygraph should have been admissible:

3

The Elekwachi court’s actual holding was as follows: “While it would not have been an
abuse of discretion for the district court to have admitted this evidence, it was not an abuse of
discretion to exclude it.”

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Judging from the length of the jury deliberations, and the jury’s note inquiring
about damages, the jury obviously considered this a close case. The main issue
was whether the jury believed the police officer’s claim of voluntary sex or
believed the Plaintiff’s claim of rape.
In view of the closeness of the case, and the jury’s obvious difficulty in
reaching a verdict, refusing to permit the evidence of an offer to take the lie
detector may well have made the difference in this case.
Essentially, the bottom line of this argument is that the Plaintiff wishes to have the polygraph
serve as a form of “tie-breaker” evidence. However, allowing in evidence at trial to function
as a “tie-breaker” is not a reason under Rule 403 to find the evidence admissible; in fact – if
anything – this demonstrates its potential for unfair prejudice. Furthermore, the Fifth Circuit
in Posado actually addressed a similar argument. In Posado, the court noted that there were
“factors” in the record that “substantially boost[ed] the probative value of the[e] evidence.” 57
F.3d at 435. The court found that,
the evidence at the suppression hearing essentially required the district court to
decide between the story told by the officers and that told by the defendants,
not an unusual situation, and perhaps not sufficient alone to justify admission
of “tie-breaker” evidence carrying a high potential for prejudicial effect. In
this case, however, there was more.
Id. (emphasis added). Unlike in Posado, here, there is not a myriad of additional factors in the
record boosting the probative value of the polygraph-related evidence. Also unlike the Posado
case, the Defendant here was not contacted before Plaintiff actually took the polygraph
examination. Thus, there was not a stipulation of admissibility between the parties to the
outcome of the test, and there is no way to know what Plaintiff knew about the subsequent
admissibility of any such test results, especially the admissibility of negative results. This is
even more true as to Plaintiff’s “July 16, 2010” statement to a highway patrolman that she

17 

wished to take a polygraph examination. Plaintiff was not only represented by counsel in
2010, but litigation in this case had already ensued; thus, Plaintiff could have easily known
that the results of polygraph examinations are generally inadmissible. As such, she would
have absolutely no adverse interest in making an offer to take such an exam.
Second, Plaintiff attempted to offer her willingness to take a polygraph during trial,
not during a hearing conducted outside the presence of a jury.4 However, Plaintiff did not
even attempt to establish the scientific reliability and validity of the actual polygraph under
Daubert, instead only attempting to introduce the willingness to submit to the examination.
By attempting to only offer Plaintiff’s willingness to take the polygraph, Plaintiff sought to
make an end-run around Daubert and have the jury merely presume (1) that such an
examination would have and/or did establish Plaintiff’s truthfulness, and

(2) that the

polygraph itself is scientific and reliable. In other words, the probative value of Plaintiff’s
offer to submit to a lie detector is in large part dependent upon the jury believing that the
actual polygraph is not only reliable, but also a scientific indicator of the Plaintiff’s honesty.
However, because Plaintiff did not even attempt to establish the scientific reliability of the
polygraph, the jury had no way of knowing whether Plaintiff ever in fact took a polygraph or
whether she even passed the examination.

Jurors have little understanding of the

admissibility and/or reliability of the actual results of polygraph examinations, thus they may
erroneously believe that any offer necessarily means that the Plaintiff’s testimony is in fact
true. See Digna, 609 F.3d at 908. As the Tenth Circuit noted, “given that the probative value

4

See Posado, 57 F.3d at 435 (noting that “[a] district court judge is much less likely than a lay
jury to be intimidated by claims of scientific validity into assigning an inappropriate
evidentiary value to polygraph evidence”).

18 

of [the] proffered testimony rides on the reliability of the polygraph itself and that [the
Plaintiff] does not wish to demonstrate the polygraph’s reliability or effectiveness . . . this
evidence’s probative value is substantially outweighed by the danger of unfair prejudice.”
Jones, 132 F. App’x at 776.
To be clear, the Court is not holding that all offers to take polygraph examinations are
inadmissible under Rule 403. However, the Court finds that, in this case, the probative value
of such evidence is substantially outweighed by the danger of unfair prejudice and misleading
the jury. Courts have long expressed distrust of polygraph evidence and, while the per se bar
against admission of polygraph-related evidence has been removed, it appears that – in
general – the distrust of such evidence remains.5 See Digna, 609 F.3d 904; Jones, 132 F.
App’x 772; Stephens, 148 F. App’x 385; Elekwachi, 111 F.3d 139; United States v. Gill, 513
F.3d 836 (8th Cir. 2008) (“Our cases make clear that polygraph evidence is disfavored.”);
United States v. Harris, 9 F.3d 493, 502 (6th Cir. 1993) (finding that the trial court did not
abuse its discretion in excluding defendant’s statement that he was willing to take a polygraph
test); Wolfel, 823 F.2d at 974 (same, in the context of a prisoner’s statement in a civil rights

5

Plaintiff asserts that the court in Parks v. Mississippi Department of Transportation, 2006
WL 2483484 (N.D. Miss. 2006) extended the Fifth Circuit’s decision in Posado to the “next
logical step” by allowing in evidence the plaintiff’s unwillingness to take a polygraph
examination. While true, the Parks court was not faced with an issue similar to the issue in
this case. That is, Parks was a Title VII action, and the defendant alleged that the plaintiff’s
failure to take a polygraph examination was part of its legitimate, non-discriminatory, nonretaliatory reason for terminating the plaintiff. The polygraph evidence in Parks served no
other purpose than for use as this alleged legitimate reason for plaintiff’s termination. Thus,
the Parks court was not faced with an attempt to use the willingness or unwillingness to
submit to a polygraph in order to show truthfulness, guilt, or innocence or any other use that
would bear on the credibility of the individual. In fact, the Parks court did not undertake, or
even need to undertake, a Federal Rule 403 analysis in order to reach its conclusion. As such,
Parks is not applicable here.

19 

action against a corrections officer); United States v. Sockel, 478 F.2d 1134, 1135-36 (8th Cir.
1973) (rejecting a defendant’s claim of error arising from a district court’s denial of the
defendant’s offer to take a polygraph exam in support of his motion to suppress); United
States v. Graziano, 558 F. Supp. 2d 304, 325 (E.D.N.Y. 2008) (district court exercising its
discretion to exclude evidence of an offer to take a polygraph); United States v. Koebele,
2008 WL 63293, at *5 (N.D Iowa Jan. 3, 2008) (holding that any references to a polygraph
examination should be excluded);6 Hisel v. Clarksville, 2007 WL 869722, at *1 (M.D. Tenn.
Mar. 30, 2007) (excluding evidence of unwillingness to submit to a polygraph); Maddox v.
Cash Loans of Huntsville, 21 F. Supp. 2d 1336, 1341 (N.D. Ala. Sept. 23, 1998) (holding in a
Title VII case that Plaintiff and her counsel were “prohibited from offering into evidence or
mentioning . . . the results of the polygraph examination, the opinion of a polygraph examiner,
or any reference to an offer to take, failure to take, or taking of a polygraph examination”)
(emphasis added).7 Accordingly, the Court finds that it did not err in finding Plaintiff’s
polygraph-related evidence unfairly prejudicial and misleading.

6

The Koebele court’s rationale for excluding such evidence is as follows:
Polygraph examinations are, themselves, of dubious reliability . . . so that
mere references to polygraph examinations can have even less probative value
. The court also doubts that a defendant’s willingness or unwillingness to take
a polygraph examination has any probative value whatsoever to issues of his
guilt . . . where the test itself cannot be shown to provide reliable results. Thus,
any weight jurors might give to evidence that a defendant was willing or
unwilling to take a polygraph examination would likely be based on an
improper emotional response, making such evidence unfairly prejudicial.
2008 WL 63293, at *5.
7
But see: United States v. Cathey, 2009 WL 3834107, at *4 (W.D. Ky. Nov. 13, 2009)
(allowing evidence of defendant’s willingness to take a polygraph when defendant was
unrepresented by an attorney); United States v. Hamilton, 579 F. Supp. 2d 637, 639 (D.N.J.
2008) (same, but also giving a limiting instruction concerning the polygraph evidence).  

20 

C. Jury Verdict
Plaintiff asserts that the jury’s verdict concerning Plaintiff’s claim for negligent
infliction of emotional distress is internally inconsistent, and a new trial on damages is
needed. When evaluating a claim that the jury’s answers are inconsistent, the Seventh
Amendment mandates that courts adopt a view of the case, if there is one, which resolves any
seeming inconsistency. See Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S.
355, 364, 82 S. Ct. 780, 7 L. Ed. 2d 798 (1962) (“Where there is a view of the case that makes
the jury’s answers to special interrogatories consistent, they must be resolved that way.”);
White v. Grinfas, 809 F.2d 1157, 1161 (5th Cir. 1987) (“Courts are obligated to reconcile a
jury’s answers when possible.”); Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir. 1973) (“The
Seventh Amendment requires that if there is a view of the case which makes the jury’s
answers consistent, the court must adopt that view and enter judgment accordingly.”). The
test governing conflicts between the jury’s answers is whether the answers may fairly be said
to represent a logical and probable decision on the relevant issues as submitted. Griffin, 417
F.3d at 915. If the jury’s answers cannot be rationally harmonized, the Court must vacate the
judgment and order a new trial. Crossland v. Canteen Corp., 711 F.2d 714, 726 (5th Cir.
1983).
Here, the jury found that the Plaintiff suffered reasonably foreseeable emotional harm,
but should be awarded zero damages. In the Fifth Circuit, the general rule is that a finding of
liability but no damages does not always or necessarily render a verdict fatally inconsistent.
Rogers v. McDorman, 521 F.3d 381, 396 (5th Cir. 2008).

21 

However, after much

consideration, the Court finds that the verdict in this case is indeed internally inconsistent. In
1999, the Mississippi Supreme Court adopted a permissive view of the negligence-based
infliction of emotion distress claim, allowing plaintiffs to “recover for emotional injury
proximately resulting from negligent conduct,” without any physical manifestation of harm
“provided only that the injury was reasonably foreseeable by the defendant.” Adams v. United
States Homecrafters, Inc., 744 So. 2d 736, 743 (¶ 20) (Miss. 1999) (quoting Strickland v.
Rossini, 589 So. 2d 1268, 1275 (Miss. 1991)). In 2001, the supreme court changed course,
holding that “some sort of physical manifestation of injury or demonstrable physical harm”
was required. Am. Bankers’ Ins. Co. of Fla. v. Wells, 819 So. 2d 1196, 1209 (¶ 43) (Miss.
2001). Despite its contrary pronouncement, the supreme court in American Bankers’ noted
the conflicting views and explained that it had “applied the line of cases adopting the more
restrictive majority view in the most recent holdings on this issue, although the cases applying
the minority view [had] not been overruled.” Id. More recently, in Wilson v. General Motors
Acceptance Corp., 883 So. 2d 56, 65 (¶ 28) (Miss. 2004), the supreme court emphasized that
“[e]ven in this more permissive line of cases [the court has] required a heavy burden of proof
in order to establish a right to recover emotional distress damages.” In 2010, in Evans v.
Mississippi Dep’t of Human Servs., 36 So. 3d 463 (Miss. Ct. App. 2010), the Mississippi
Court of Appeals discussed the varying views on a claim for negligent infliction of emotional
distress. The Evans court did not decide between the two differing views; however, the court
did state that “[a] plaintiff must offer substantial proof of emotional harm, and the emotional
injuries must be reasonably foreseeable from the defendant’s actions.” Id. at 476.

22 

In order for the jury to have rendered a Plaintiff’s verdict for negligence-based
emotional distress, the jury must have found that the Plaintiff proved “substantial proof of an
emotional harm” as well as “emotional distress damages” stemming from that harm. The jury
must also have found that the Defendant caused such injuries. However, the jury essentially
negated the finding of an actual emotional injury by rendering a verdict of zero damages. The
Connecticut Supreme Court faced a similar issue in Hall v. Bergman, 296 Conn. 169, 994
A.2d 666 (2010). In Hall, the plaintiff brought claims of negligent infliction of emotional
distress and intentional infliction of emotional distress, both of which under Connecticut law
– like under Mississippi law – require proof of an actual injury. The jury rendered a verdict in
favor of the plaintiff but then awarded zero damages. The Connecticut Supreme Court found
as follows:
Because we must presume that the plaintiff established actual injury . . . we
also must presume that the plaintiff established damages stemming from that
injury. As the Appellate Court observed, however, this presumption is
inconsistent with the jury’s award of zero damages. Consequently, the jury
verdict in favor of the plaintiff is insolubly ambiguous. In other words, in such
circumstances, it cannot be stated with certainty either that the jury found that
the plaintiff had failed to prove any damages or that the jury was confused as
to the correct interplay between damages and liability . . . . The appropriate
course of action when such an ambiguous verdict is [returned] is to order a
new trial on all issues.
Hall, 296 Conn. at 183, 994 A.2d at 674 (internal citations omitted); see also Davis v. Hanson
Aggregates Southeast, Inc., 952 So. 2d 330 (Ala. 2006) (“[A] finding that a defendant is liable
to a plaintiff for negligence is inconsistent with an award of no damages.”); Fox v. Colony
T.V. & Appliance, Inc., 37 Conn.App. 453, 656 A.2d 705 (1995) (holding that because the
jury was instructed that the finding of liability involved a finding of negligence, which was a

23 

substantial factor in causing the plaintiff’s injuries, a plaintiff’s verdict with zero total
damages was inherently ambiguous); Alabama Power Co. v. Epperson, 585 So. 2d 919 (Ala.
1991) (holding that the trial court correctly granted the plaintiffs a new trial on the basis of the
inconsistency of the award of no damages when that award was juxtaposed with the jury’s
finding of the defendant’s liability in a negligence action); Molinari v. Florida Key Elec. Coop Ass’n, Inc., 545 So. 2d 322 (Fla. 3d DCA 1989) (finding that it was error to deny a motion
for a new trial where jury awarded zero damages despite finding that appellant’s injuries were
caused, in part, by appellee’s negligence). Given this, the Court finds that the jury’s verdict
cannot be reconciled and a new trial is warranted.
Plaintiff next urges the Court to only grant a partial new trial, specifically a new trial
on damages. Rule 59 provides that a new trial may be granted “to all or any of the parties and
on all or part of the issues . . . .” FED. R. CIV. P. 59(a). However, the Supreme Court has set
forth an important limitation on the court’s power to grant a partial new trial:
Where the practice permits a partial new trial, it may not properly be resorted
to unless it clearly appears that the issue to be retried is so distinct and
separable from the others that a trial of it alone may be had without injustice . .
. Here the question of damages on the counterclaim is so interwoven with that
of liability that the former cannot be submitted to the jury independently of the
latter without confusion and uncertainty, which would amount to a denial of a
fair trial.
Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500-01, 51 S. Ct. 513, 75 L.
Ed. 1188 (1931). The Fifth Circuit has also recognized this limitation, noting that that a
partial trial is proper only as long as “the issue to be retried is so distinct and separable from
the others that a trial of it alone may be had without injustice.” Colonial Leasing of New
England, Inc. v. Logistics Control, Int’l, 770 F.2d 479, 481 (5th Cir.1985); see also Worsham

24 

v. City of Pasadena, 881 F.2d 1336, 1339 (5th Cir. 1989) (holding that the district court
judge’s decision to grant a complete retrial on both liability and damages was not an abuse of
discretion because the liability issue, i.e., whether the City had violated the Constitution, was
closely intertwined with the damages issue). In this case, the Court concludes that because
the issues of liability and damages on the tort of negligent infliction of emotional distress are
inextricably interwoven, a retrial limited to damages alone would be ill-advised. Given the
jury’s verdict with respect to damages, one could reasonably question the validity of the
verdict as to liability – or vice versa. See Miller v. Royal Netherlands Steamship Co., 508
F.2d 1103, 1106 (5th Cir. 1975) (“A finding by th[e] court that a critical verdict was
inconsistent with another would require a remand for a new trial . . . since [the court] could
not speculate which inconsistent finding the jury intended to be controlling.”). For these
reasons, the Court finds that a new trial on both liability and damages for Plaintiff’s
negligence-based emotional distress claim is warranted.8
D. Supplemental Briefing
Since the Court has concluded that the jury rendered an inconsistent verdict – thus
mandating a new trial in this case – the Court requests supplemental briefing on Plaintiff’s
negligent infliction of emotional distress claim. That is, the Court requests supplement
briefing on the validity of such a claim under Mississippi law. The jury rendered a verdict
finding in favor of the Defendant on Plaintiff’s Section 1983 action, and the grant of a new

8

The Plaintiff never alleges that the jury’s verdict was inconsistent as to her Section 1983
claim. However, to be clear, the Court notes that Plaintiff’s Section 1983 claim is entirely
separable and distinct from Plaintiff’s negligence-based claim. The jury rendered a verdict in
favor of the Defendant as to that claim, and that verdict is in no way inconsistent with the
jury’s other findings.

25 

trial in this case does not extend to Plaintiff’s Section 1983 claim, meaning the jury’s verdict
is a valid judgment. For the jury to have rendered such a verdict, they must have necessarily
found that the Defendant did not commit a sexual assault against the Plaintiff (i.e., that the
Defendant did not rape the Plaintiff). Thus, Plaintiff’s negligence-based emotional distress
claim appears to be premised on the notion that the Defendant acted negligently in engaging
in consensual sexual relations with the Plaintiff. During trial on this matter, the Defendant
never moved for a judgment as a matter of law on such a claim – nor did the individual
Defendant ever file a motion to dismiss or a motion for summary judgment. However, given
that the Court is granting Plaintiff’s motion for a new trial, the Court requests that the parties
provide briefing on whether such an action states a valid claim under state law. The Court
will provide a briefing schedule and date for a new trial by separate order.
CONCLUSION
For the foregoing reason, Plaintiff’s Motion is granted in part and denied in part. The
Motion is denied insofar as it relates to Plaintiff’s claims that the Court erred in its jury
instruction on the Section 1983 action and that the Court erred in excluding under Rule 403
Plaintiff’s willingness to take a polygraph examination. Plaintiff’s Motion is further granted in
part and denied in part as to Plaintiff’s assertion that the jury rendered an inconsistent verdict.
The Court finds that the jury’s verdict was inconsistent, but also finds that a new trial on
damages alone would be ill-advised. Thus, a new trial on both damages and liability is
necessary. The Court also requests supplemental briefing from the parties on the validity of
Plaintiff’s negligence-based emotional distress claim. A separate order will be issued by the
Court providing a briefing schedule and a new trial date.

26 

So ordered on this, the _13th___ day of ____June________, 2011.

/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

27