Lee et al v. Borders et al

Filing 146

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant Albert Lee Borders Motion for Judgment Notwithstanding the Verdict or, In the Alternative, for a New Trial (Docket No. 116 ) is DENIED. IT IS FURTHER ORDERED that Plaintiff shall submit her consolidated and supplemental Motion for Attorneys Fees within 14 days from the date of this Order. Defendant shall file his response 14 days after the supplemental fee request is filed, and Plaintiff shall file her reply brief in support of her request for attorneys fees 10 days thereafter. Signed by Magistrate Judge Terry I. Adelman on 8/26/13. (KJS)

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANGELA MARIE LEE, By and Through
Next Friend, RENEE B. LEE,
Plaintiffs,
v.
ALBERT LEE BORDERS,
Defendant.

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No. 4:09CV1977 TIA

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Albert Lee Borders’ Motion for Judgment
Notwithstanding the Verdict or, In the Alternative, for a New Trial (Docket No. 116) and Plaintiff
Angela Marie Lee’s Response in Opposition to Defendant Borders’ Motion for Judgment
Notwithstanding the Verdict or, In the Alternative, for a New Trial. Defendant filed a Reply thereto.
I.

Background

Plaintiffs originally filed suit against Defendants Albert Lee Borders, St. Charles Habilitation
Center, and the Missouri Department of Mental Health in the Circuit Court of St. Charles County in
a three-count petition. On December 3, 2009, Defendants St. Charles Habilitation Center and
Missouri Department of Mental Health removed the case to federal court on the basis that Counts
II and III are brought under 42 U.S.C. § 1983 for alleged deprivation of Plaintiffs’ right under the
Fourth, Fifth, and Fourteenth Amendments. On November 19, 2010, the undersigned granted
Defendants St. Charles Habilitation Center and Missouri Department of Mental Health’s Motion to
Dismiss.

This matter was tried before a jury on April 9, 10, and 11, 2012. On April 11, 2012,
Defendant made oral motions for judgment as a matter of law at the close of Plaintiff’s case and the
close of all evidence contending that he was not acting under color of state. The Court overruled
both motions in open court and on the record. On April 12, 2012, the jury returned a verdict in favor
of Plaintiff Angela Marie Lee on each of her claims against Defendant Borders and awarded a total
of $1,000,000.00 in compensatory damages and $3,000,000.00 in punitive damages. Defendant now
moves for a Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for a New
Trial.1
II.

Discussion

Defendant merely argues matters previously argued throughout these proceedings. Motions
for Judgment as a Matter of Law or for a New Trial are not vehicles through which a party may
reargue previously presented arguments. Rather, these motions serve to prevent manifest errors of
law or fact, or to present newly discovered evidence. This Court considered Defendant’s arguments
at the time of its rulings and has reviewed the pleadings, the record of each of its rulings and finds no
manifest errors of law or fact which would justify granting a Rule 50 or 59 motion. Defendant has
failed to present any manifest errors of law or fact in the Court’s rulings.
Moreover, the evidence presented supports the jury verdict. As to the issue of damages, this
Court finds that while very large, the damages award is not constitutionally excessive. As the Court
finds the jury’s verdict to be reasonable in light of the evidence presented at trial, the Court will deny
Defendant’s motion.
1

The undersigned notes that Defendant moves the Court for a judgment notwithstanding
the verdict, however, under the Federal Rules of Civil Procedure, the motion is now a motion for
judgment as a matter of law. Fed.R.Civ.P. 50.
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A.

Renewed Motion for Judgment Notwithstanding the Verdict as a Matter of Law
Defendant renews his motion for judgment as a matter of law under Rule 50 of the Federal

Rules of Civil Procedure. The Court denied Defendant’s motions for judgment as a matter of law at
the close of Plaintiff’s case and on the last day of trial at the close of all the evidence. Defendant sets
forth no new basis for the renewed motion.
A motion for judgment as a matter of law should be granted only if the jury’s verdict is utterly
lacking in evidentiary support. In re Prempro Prods. Liab. Litig., 586 F.3d 547, 571 (8th Cir. 2009);
see Foster v. Time Warner Ent. Co., 250 F.3d 1189, 1194 (8th Cir. 2001) (“Judgment as a matter of
law is proper only when there is a complete absence of probative facts to support the conclusion
reached so that no reasonable juror could have found for the nonmoving party.”) (internal quotation
marks and citation omitted). When deciding a Rule 50 motion, the Court must construe the evidence
most favorably to the prevailing party and draw all inferences in its favor, denying the motion “if
reasonable persons could differ as to the conclusions to be drawn from the evidence.” W. Am., Inc.
v. Aetna Cas. and Surety Co., 915 F.2d 1181, 1183 (8th Cir. 1990). The Court may not make
credibility determinations or weigh the evidence. In re Prempro, 586 F.3d at 572 (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). Under these standards and in light of
Defendant offering no additional argument, the motion must be denied.
1.

Color of State Law

Defendant argues that the jury did not have a legally sufficient evidentiary basis from which
to conclude that he acted under color of state law.
"The Supreme Court has not had occasion to consider the liability of a state actor under
§ 1983 for a sexual assault, but it has held that it is not necessary for there to be a precedent applying
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the constitutional right to a "fundamentally similar" factual situation in order for a criminal defendant
to know that he is violating the due process right to bodily integrity by committing sexual assault.
U.S. v. Lanier, 520 U.S. 259, 268-72 (1997). The Supreme Court has been cautious about
overextending the reach of substantive due process principles to avoid converting the Due Process
Clause into a body of tort law. County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). See also
DeShaney v. Winnebago County Dept. of Social Servs, 489 U.S. 189, 202 (1989).
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.” West v. Atkins, 487 U.S. 42, 49 (8th Cir.
1988). An official acts under color of state law even if he “abuses the position given him by the State
... while acting in his official capacity or while exercising his responsibilities pursuant to state law.”
Id. at 50. Generally, state employment is sufficient to render an individual a state actor. Id. at 49.
“It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses
the position given to him by the State.” Id. at 50. Indeed, “[m]isuse of power, possessed by virtue
of state law and made possible only because the wrongdoer is clothed with the authority of state law,
is action taken ‘under color of’ state law.” U.S. v. Classic, 313 U.S. 299, 326 (1941).
The question whether Defendant acted under color of state law "turns on the nature and
circumstances of [his] conduct and the relationship of that conduct to the performance of his official
duties." Roe v. Humke, 128 F.3d 1213, 1216 (8th Cir. 1997). The Eighth Circuit has opined that
the color of state law element of section 1983 suits requires that the defendant "exercised power
‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law.'" Roe, 128 F.3d at 1215 (quoting West, 487 U.S. at 48).
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In order to

determine if a public employee is acting under color of state law, the court must examine the nature
of the employee's conduct and its relationship to the performance of the employee's statutory duties.
Id. at 1216.
In Roe, a police officer was accused of sexually molesting a girl whom he first met while
working at a local school. The sexual contact occurred after she accompanied him, with her parent's
permission, to his farm, and while he was off duty and out of uniform. See id. at 1214-15. The
parents claimed that they would not have entrusted their daughter to the accused molester but for the
fact that he was a police officer. The Eighth Circuit noted that even if that were true, the knowledge
of the individual's status as a police officer alone by the child and her parents was "not sufficient to
convert the actions [that the officer] took in the pursuit of his private interests into action taken under
color of state law." Id. at 1217. Further, the Court considered cases where government defendants
had been held liable under § 1983 for sexual abuse, noting that those cases uniformly "involved a
defendant who was acting under pretense of his authority and who was purporting to exercise the
power given to him by the state." Id. Cf. id. at 1216 (where police officer took plaintiff to his farm
for his own personal pursuits while off duty and not wearing his uniform or badge or carrying a gun
and was driving his own personal vehicle, "he was neither actually acting in his official capacity or
exercising his responsibilities pursuant to state law, nor purporting to so act."). The Roe Court found
that the officer "was neither actually acting in his official capacity or exercising his responsibilities
pursuant to state law, nor purporting to so act."
The Eighth Circuit has weighed in on this issue and recognized an actionable claim under §
1983 for a substantive due process violation may accrue where a pubic official, a police officer,
engaged in "sexual fondling and touching or other egregious sexual contact" under color of state law
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and threatened adverse police action in making his unwanted advances. Haberthur v. City of
Raymore, 119 F.3d 720, 723-24 (8th Cir. 1997). Likewise, in Rogers v. City of Little Rock, 152
F.3d 790 (8th Cir. 1998), the Eighth Circuit upheld a district court's finding that a police officer had
sexually assaulted a woman in violation of her substantive due process rights when the officer pulled
the woman over for a traffic violation and later followed her home under the guise of obtaining her
missing proof of automobile insurance. At her home, the officer ordered her to disrobe, pushed her
onto her bed, and had sexual intercourse with her. The Eighth Circuit opined that the facts supported
the finding that the intercourse was nonconsensual and that the officer accomplished the rape through
the exercise of coercive power that he possessed as a law enforcement officer. Id. at 796-97.
"[T]he construct - ‘acting under color of state law - rarely depends on any single, easily
determinable fact," such as employment status, but requires an examination of all the relevant
circumstances. Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995). The Court agrees with Plaintiff
the evidence clearly established that Defendant acted under color of state law, clothed with the
authority of the state, but outside the scope of his authorized employment. Defendant, a kitchen
worker at St. Charles Habilitation Center, performed basic kitchen duties as well as taking meals and
supplies to the residents and cleaning dishes. Plaintiff entered the kitchen seeking to speak to another
cook. Defendant advised Plaintiff the other cook was not available and asked if she needed anything
else. The evidence established that Defendant was on duty working in his designated work area when
the sexual assault on Plaintiff occurred. Defendant was not within ambit of personal pursuits as in
Roe when the sexual contact occurred, but he was working within the facility in his designated work
space. Accordingly, the Court finds that the evidence established that Defendant, an employee of the
State of Missouri, acted under color of state law during the sexual contact with Plaintiff.
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The evidence at trial established that Defendant worked for the state and had contact with
Plaintiff because of his duties as a state employee. It is axiomatic that Defendant is a state actor and,
as such, his conduct occurred "under color of state law." As noted by the Eighth Circuit, "[m]ere
employment by a state or municipality does not automatically mean that a defendant's actions are
taken under the color of state law." Ottman v. City of Independence, 341 F.3d 751, 762 (8th Cir.
2003) (quoting Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996)). The "dispositive issue is
whether the defendant acted pursuant to power he or she possessed by state authority." Id. (quoting
Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1523 (11th Cir. 1995)).
The allegations of sexual assault at issue in the instant case have been found by the Eighth
Circuit to support a constitutional violation of one’s bodily integrity. Haberthur, 119 F.3d at 723.
Defendant’s conduct at issue is distinguishable from that in Haberthur and Rogers because the sexual
contact was not accompanied by threats of official action if Plaintiff rebuffed or reported his behavior.
Sexual assault can be a deprivation of the substantive due process right to bodily integrity. Rogers,
152 F.3d at 796; Haberthur, 119 F.3d at 723 (Eighth Circuit recognized that an actionable claim
under § 1983 for substantive due process violation may accrue when public official engages in “sexual
fondling and touching or other egregious sexual contact” under color of state law). Such violations
need not occur through physical force. Rogers, 152 F.3d at 797. The Court finds the sexual assault
by Defendant would certainly “shock the conscience,” and therefore would be actionable as a
substantive due process violation.

In this case, Plaintiff presented sufficient evidence during the three-day trial to allow a
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reasonable jury to conclude that Defendant while working as an employee of the State of Missouri
in his designated work space at Saint Charles Habilitation Center, a Missouri facility, sexually
assaulted Plaintiff, a resident of the facility, without her consent. The evidence, in its totality and
after review, supports the jury’s conclusion that Defendant intentionally had anal intercourse with
Plaintiff; this contact was offensive to Plaintiff; and such contact would be offensive to a reasonable
person. The jury was presented with witness testimony and exhibits about the intercourse between
Plaintiff and Defendant, which it undoubtedly considered in detail during its deliberations. It is not
for this Court to simply set aside the jury’s verdict because Defendant argues a different conclusion
should have been drawn from the evidence. The evidence presented at trial does not change this
conclusion and does not serve as a basis for disturbing the jury’s verdict. For these reasons, the
renewed motion for judgment as a matter of law will be denied.
2.

Inconsistent Testimony

Defendant has not established that the evidence is insufficient to support the jury’s verdict.
Defendant merely reargues matters previously raised at trial. At trial, Plaintiff offered testimony from
nurses, emergency room staff, police officers, and case managers establishing sexual contact between
Plaintiff and Defendant. The Court considered Defendant’s arguments at the time of its rulings and
reviewed the record as to its ruling and finds no manifest errors of law or fact which would justify
granting the motion.
B.

Motion for New Trial
Following a jury trial resulting in an adverse judgment, a party may move for a new trial under

Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure. Under this rule, “[a] new trial is
appropriate when the first trial, through a verdict against the weight of the evidence, an excessive
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damage award, or legal errors at trial, resulted in a miscarriage of justice.” Gray v. Bicknell, 86 F.3d
1472, 1480 (8th Cir. 1996). A miscarriage of justice does not result whenever there are inaccuracies
or errors at trial; instead, the party seeking a new trial must demonstrate that there was prejudicial
error. Buchholz v. Rockwell Int’l Corp., 120 F.3d 146, 148 (8th 1997). Errors in evidentiary rulings
or jury instructions are only prejudicial, and therefore only represent a miscarriage of justice that
requires a new trial, where the error likely affected the jury’s verdict. Diesel Machinery, Inc. v. B.R.
Lee Indus., Inc., 418 F.3d 820, 833 (8th Cir. 2005) (evidentiary rulings); Sherman v. Winco
Fireworks, Inc., 532 F.3d 709, 720 (8th Cir. 2008) (jury instructions).
Consistent with the plain language of Rule 59, the court may grant a partial new trial solely
on the issue of damages. Fed.R.Civ.P. 59(a)(1)(A); see, e.g., Powell v. TPI Petro., Inc., 510 F.3d
818, 824-25 (8th Cir. 2007) (remanding for partial new trial on damages). For example, a partial new
trial on the issue of damages is appropriate when the jury’s verdict is so grossly inadequate as to
shock the conscience or to constitute a plain injustice. Taylor v. Howe, 280 F.3d 1210, 1211 (8th
Cir. 2002); First State Bank of Floodwood v. Jubie, 86 F.3d 755, 759 (8th Cir. 1996). “Each case
must be reviewed within the framework of its distinctive facts.” Wilmington v. J.I. Case Co., 793
F.2d 909, 922 (8th Cir. 1986) (citing Hollins v. Powell, 773 F.2d 191, 197 (8th Cir. 1985)).
“In determining whether or not to grant a new trial, a district judge is not free to reweigh the
evidence and set aside the jury verdict merely because the jury could have drawn different inferences
and conclusions or because judges feel that other results are more reasonable.” King v. Davis, 980
F.2d 1236, 1237 (8th Cir. 1982). “[T]he ‘trial judge may not usurp the function of a jury ... [which]
weighs the evidence and credibility of witnesses.’” White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992)
(quoting McGee v. S. Pemiscot Sch. Dist., 712 F.2d 339, 344 (8th Cir. 1983)). “Instead, a district
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judge must carefully weigh and balance the evidence and articulate reasons supporting the judge’s
view that a miscarriage of justice has occurred.” King, 980 F.2d at 1237.
“The authority to grant a new trial ... is confided almost entirely to the exercise of discretion
on the part of the trial court.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). On the
issue of damages, the propriety of the amount of a verdict “is basically, and should be, a matter for
the trial court which has had the benefit of hearing the testimony and observing the demeanor of
witnesses and which knows the community and its standards....” Wilmington, 793 F.2d at 922)
(quoting Solomon v. Dehydrating Co. v. Guyton, 294 F.2d 439, 447-48 (8th Cir. 1961)). “[T]he
assessment of damages is especially within the jury’s sound discretion when the jury must determine
how to compensate an individual for an injury not easily calculable in economic terms.” Stafford
Neurological Med., Inc., 811 F.2d 470, 475 (8th Cir. 1987); see also EEOC v. Convergys Customer
Mgmt. Group, Inc., 491 F.3d 790, 798 (8th Cir. 2007).
1.

Verdict Against Weight of Evidence
Defendant argues that he is entitled to a new trial because each of the verdicts was against the

weight of the evidence. “The grant of a motion for a new trial is appropriate only if the verdict is
against the weight of the evidence and ... allowing it to stand would result in a miscarriage of justice.”
Murphy v. Missouri Dept. of Corrections, 506 F.3d 1111, 1116 (8th Cir. 2007) (internal quotation
marks and citation omitted). “Where reasonable minds can differ in evaluating the credible evidence,
a new trial based on the weight of the evidence should not be granted.” McRaven v. McMurrian,
2010 WL 582349, *1 (E.D.Ark. Feb. 11, 2010) (citing Jacobs Mfg. Co. v. Sam

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Brown Co., 19 F.3d 1259, 1267 (8th Cir. 1994)). Here, there was ample evidence to support the
jury’s findings.
2.

Daniel Weinstein’s Testimony
Defendant next argues that Dr. Daniel Weinstein was permitted to testify, over objection, that

tremendous resources would be needed to treat Plaintiff even though his expert report lacked any
reference to the cost of treatment Plaintiff would need in the future.
The evidence at trial established that Plaintiff would require significant resources for her care
and treatment. Testimony from Gary Scheffler and Karen Souza was consistent with the testimony
of Dr. Weinstein. Thus, the evidence presented supports the jury verdict.
3.

Jury Instruction - Consent
Defendant next argues that instructional error warrants a new trial. “The district court is

afforded broad discretion in choosing the form and substance fo the jury instructions ....” Friedman
& Friedman, Ltd. v. Tim McCandless, Inc., 606 F.3d 494, 499 (8th Cir. 2010). “The instructions
need be neither technically perfect nor a model of clarity.” Id. Jury instructions must, when “taken
as a whole, fairly and adequately represent the evidence and applicable law in light of the issues
presented to the jury in a particular case.” Swipies v. Kofka, 419 F.3d 709, 716 (8th Cir. 2005)
(internal quotation marks and citation omitted). “An erroneous instruction warrants a new trial only
if the error misled the jury or had a probable effect of the verdict.” Friedman, 606 F.3d at 499
(internal quotation marks and citation omitted).

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Here, Defendant complains of instructional error regarding the instruction defining consent.
Instruction No. 8
Consent or lack of consent may be expressed or implied. Assent does not
constitute consent if it is given by a person who lacks the mental capacity to authorize
the conduct of sexual contact and such mental incapacity is manifest or known to the
actor.
(ECF No. 105, Instruction No. 8).
Defendant contends the instruction permitted the jury to find Defendant negligently violated
Plaintiff’s constitutional rights and conflicted with the Missouri Approved Instruction. The Court
rejects these arguments again for the same reasons as stated on the record at trial.
4.

Excessive Damage Awards
“Compensatory damages are recoverable in §1983 actions for injuries including personal

humiliation, and mental anguish and suffering.” Rogers, 152 F.3d at 798 (internal quotation and
citation omitted). As noted by the Eighth Circuit, “awards for pain and suffering are highly subjective
and should be committed to the sound discretion of the jury, especially when the jury is being asked
to determine injuries not easily calculated in economic terms.” Eich v. Bd. of Regents for Cent. Mo.
State Univ., 350 F.3d 752, 763 (8th Cir. 2003) (internal quotation marks and citations omitted).
Given the circumstances of the sexual assault on Plaintiff taking place in residential facility
run by the department of mental health, the vulnerability of Plaintiff as a target, the residual
psychological symptoms it has engendered, and the evidence presented at trial, the Court finds the
$1 million award of compensatory damages to be appropriate. The evidence showed that Defendant
failed to follow training prohibiting any sexual contact between employees and individual residents
under any circumstances.
The evidence at trial provided a sufficient basis from which the jury could conclude that
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Plaintiff sustained actual damages. In this case, the jury awarded substantial compensatory damages
inasmuch as the evidence established mental distress resulting from the violation of Plaintiff’s rights.
Because it is difficult to quantify the extent the psychological injury might cause, the undersigned will
defer to the jury, equipped with collective wisdom that life’s experiences confer and armed with all
of the evidence presented in the three-day trial, to determine the amount that would adequately
compensate Plaintiff.
To be entitled to punitive damages, the plaintiff must prove that the defendant’s conduct was
“motivated by evil motive or intent, or ... involve[d] reckless or callous indifference to the federally
protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). “Punitive damages punish a
defendant for outrageous, intentional, or malicious conduct, and deter similar extreme conduct in the
future. It is a question of fact whether a defendant’s conduct was motivated by an evil motive or
involves reckless indifference to the federally protected rights of others.” Schaub v. VonWald, 638
F.3d 905, 922-23 (8th Cir. 2011) (footnote and citation omitted).
“Juries have considerable flexibility in determining the level of punitive damages.” Ondrisek
v. Hoffman, 698 F.3d 1020, 1028 (8th Cir. 2012) (citing BMW of N. Am., Inc. v. Gore, 517 U.S.
559, 568 (1996)). Under the Fourteenth Amendment’s Due Process Clause, “grossly excessive civil
punishment” is prohibited. Id. (quotation and citation omitted). “Similar to compensatory damages,
punitive damages are grossly excessive if they ‘shock the conscience of this court or ... demonstrate
passion or prejudice on the part of the trier of fact.’” Id. (quoting Stogsdill v. Healthmark Partners,
L.L.C., 377 F.3d 827, 832 (8th Cir. 2004)).

In relevant part, the punitive damages instruction permitted the jurors to award additional

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damages if they found the following:
If you find by the greater weight of the evidence that the conduct of Albert Lee Borders, ..., was
outrageous because of defendant Albert Lee Borders evil motive or reckless indifference to the rights
of others, then in addition to any damages which you found plaintiff entitled to, you may award
plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish
Albert Lee Borders and to deter defendant Albert Lee Borders and others from like conduct.
If you decide to award punitive damages, you should consider the following in deciding the amount
of punitive damages to award:
1. How reprehensible defendant Albert Lee Borders conduct was. In this regard, you
may consider whether the harm suffered by the plaintiff was physical or economic or
both; whether there was violence, deceit, intentional malice, reckless disregard for
human health or safety; whether others were harmed by the same conduct of
defendant Albert Lee Borders that harmed the plaintiff; and whether there was any
repetition of the wrongful conduct and past conduct of the sort that harmed the
plaintiff....
(ECF No. 105, Instruction No. 12).
The following factors are considered when analyzing “whether a punitive award shocks the
conscience or demonstrates prejudice”:
(1) the degree of reprehensibility of the defendant’s conduct;
(2) the disparity between actual and potential harm suffered and the punitive damages
award (often stated as a ratio between the amount of the compensatory damages award
and the punitive damages award); and
(3) the difference between the punitive damages award and the civil penalties
authorized in comparable cases.
Id. (quotation and citation omitted). These factors collectively serve as “guideposts ... to ensure
proper notice of the penalty associated with [the defendant’s] conduct.” Id.
“Perhaps the most important indicium of the reasonableness of a punitive damages award is
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the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575. Five factors are
considered in evaluating the degree of reprehensibility:
whether ... the harm caused was physical as opposed to economic; the tortious
conduct evinced an indifference to or a reckless disregard of the health or safety of
others; the target of the conduct had financial vulnerability; the conduct involved
repeated actions or was an isolated incident; and the harm was the result of intentional
malice, trickery, or deceit, or mere accident.
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003).
In the instant case, the evidence clearly substantiates the first two reprehensibility factors. The
evidence at trial clearly showed the harmful and long-term impact the sexual contact on Plaintiff a
resident at the habilitation center whose first experience with sexual intercourse would be a rape. Dr.
Weinstein noted Plaintiff “has been described as being vulnerable to victimization by others due to
intellectual disability.” (Deft.’s Exh. A at 2).
“The second and perhaps the most commonly cited indicium of an unreasonable or excessive
punitive damages award is its ratio to the actual harm inflicted on the plaintiff.” Gore, 517 U.S. at
580. Here, the Court finds that the 3:1 ratio between punitive and compensatory damages is not too
great. “[T]he Supreme Court has repeatedly intimated that a four-to-one ratio is likely to survive any
due process challenges given the historic use of double, treble, and quadruple damages as a punitive
remedy.” Wallace v. DTG Operations, Inc., 563 F.3d 357, 363 (8th Cir. 2009).
A high ratio may be appropriate based on the particularly reprehensible conduct or where
actual damages are nominal. See JCB, Inc. v. Union Planters Bank, NA, 539 F.3d 862, 876 (8th Cir.
2008) (“Punitive damages may withstand constitutional scrutiny when only nominal or a small amount
of compensatory damages have been assigned, even though the ratio between the two will necessarily
be large.”). Clearly the jury’s award of $1,000,000 actual damages in this case is not a nominal

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amount that might excuse a higher ratio. As such, a single-digit multiple should be an outer limit on
Plaintiff’s award. See State Farm, 538 U.S. at 425 (“[I]n practice, few awards exceeding a singledigit ratio between punitive and compensatory damages, to a significant degree, will satisfy due
process.”); Williams v. ConAgra Poultry Co., 378 F.3d 790, 799 (8th Cir. 2004) (“In the absence of
extremely reprehensible conduct against the plaintiff or some special circumstances such an
extraordinary small compensatory award, awards in excess of ten-to-one cannot stand.”).
In State Farm, the Court pointed to traditional remedies of “double, treble, and quadruple
damages” and stated that “they demonstrate what should be obvious: [s]ingle digit multipliers are
more likely to comport with due process, while still achieving the State’s goals of deterrence and
retribution, than awards with ratios in range of 500 to 1 or ... 145 to 1.” Id. (internal citation
omitted). While suggesting the ratios alone cannot control the analysis, the Supreme Court has
repeatedly intimated that a four-to-one ratio is likely to survive any due process challenges given the
historic use of double, treble, and quadruple damages as a punitive remedy. See Pac. Mut. Life Ins.
Co. v. Haslip, 499 U.S. 1, 23-24 (1991) (calling a punitive damages award that was “more than 4
times the amount of compensatory damages ... close to the line.”); Gore, 517 U.S. at 581 & n. 33
(citing ratios from the remedy provisions of historical statutes that awarded, double, treble or
quadruple damages). Thus, in accordance with this guidance from the Supreme Court, the Court
believes a three-to-one ratio is appropriate.
“Addressing the third Gore guidepost, this court must also compare damages in similar civil
cases.” Ondrisek, 698 F.3d at 1030. The Court has considered other recent state and federal
decisions discussing awards in similar cases, mostly prison rape cases and some rape cases by police

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officers.2 E.g., Daskalea v. District of Columbia, 227 F.3d 433 (D.C.Cir. 2000) (affirming a $350,000
jury award for ongoing sexual abuse of a female inmate in light of a documented history of routine
sexual abuse of women prisoners); Rogers, 152 F.3d at 798 (award of $100,000 in damages upheld
in § 1983 substantive due process case where plaintiff was raped by a police officer after a traffic stop
and the testimony at trial showing the harmful impact the incident had on her); Mathie v. Fries, 121
F.3d 808, 813-14 (2d Cir. 1997) (upholding award of $250,000 in compensatory damages and
$200,000 in punitive damages is appropriate where corrections officer sexually abused and forcibly
sodomized pretrial detainee); Amador v. Galbreath, 2013 WL 1755784, *3 (W.D.N.Y. April 24,
2013) (awarding $250,000 in compensatory damages and $250,000 in punitive damages where
corrections officer sexually assaulted inmate); Etters v. Shanahan, 2013 WL 787344, *6-7 (E.D.N.C.
Feb. 6, 2013) (awarding $100,000 in compensatory damages and $100,000 in punitive damages to
inmate for four forcible sexual violations with some assault involving multiple sexual violations); Ortiz
v. Lasker, 2010 WL 3476017 (W.D.N.Y. 2010) (awarding $250,000 in compensatory and $250,000
in punitive damages to inmate raped twice by corrections officer); Cash v. County of Erie, 2009 WL
3199558, *3-4 (W.D.N.Y Sept. 30, 2009) (entering default judgment of $500,000 compensatory and
$150,000 punitive damages against a detention center guard who assaulted and raped an inmate); Hall
v. Terrell, 648 F.Supp.2d 1229 (D.Colo. 2009) (entering default judgment of $353,070.41 in
compensatory and $1 million in punitive damages against an officer who routinely sexually assaulted

2

In support, Plaintiff submitted documents from Verdict Reporter, Inc. involving cases of
more reprehensible conduct such as sexual battery to a minor daughter, sexual assault and rape of
a choir director by the pastor where there had been numerous complaints of sexual harassment
brought to the attention of church leaders, professional malpractice stemming from a failure to
report sexual abuse of a minor family member, and a wrongful death case where a minor was
raped and murdered at school.
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and raped an inmate in his custody); Chavez v. Poleate, 2010 WL 678940, at 3-4 (D.Utah 2010)
(awarding non-economic compensatory damages in the amount of $350,000 and $1 million in
punitive damages for rape by prison guard causing physical injury and resulting in psychological
symptoms). See generally Trinidad v. City of Boston, 2011 WL 915338 (D.Mass. 2011) (collecting
cases and noting that compensatory damages for "sexual assault and rape of inmates or detainees by
prison guards and corrections officers have ranged from $100,000 to $500,000."). Although the
cases vary in the amounts awarded as well as the conduct being punished, all of the cases suggest that
the jury was not out of bounds with awards of punitive damages ranging in the amounts from
$100,000 to $1 million.
After comparing the punitive awards in cases involving sexual assaults by prison officials and
law enforcement officers as the most factually similar cases located, the Court finds the $3 million
punitive award, while very large, is not constitutionally excessive. As the Court finds the jury’s
verdict to be reasonable in light of the evidence presented at trial, the Court will deny Defendant’s
motion. Accordingly,
IT IS HEREBY ORDERED that Defendant Albert Lee Borders’ Motion for Judgment
Notwithstanding the Verdict or, In the Alternative, for a New Trial (Docket No. 116) is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall submit her consolidated and supplemental
Motion for Attorney’s Fees within 14 days from the date of this Order. Defendant shall file his

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response 14 days after the supplemental fee request is filed, and Plaintiff shall file her reply brief in
support of her request for attorney’s fees 10 days thereafter.

/s/Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 26th

day of August, 2013.

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