Fletcher v. Tomlinson et al

Filing 219

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs Motion and Application for Fees and Expenses (ECF No. 195 ) is DENIED, in part, and GRANTED, in part. The Court awards Plaintiff $185,969.91 in fees. IT IS FURTHER ORDERED that Defen dants John Moton and Nicholas Martorano's Motion for a New Trial (ECF No. 201 ), Motion of Defendant John Moton for Judgment in His Favor as a Matter of Law (ECF No. 203 ), and Defendants John Moton and Nicholas Martorano's Motions to Alter or Amend the Judgments (ECF No. 205 ) are DENIED. IT IS FINALLY ORDERED that Plaintiffs Motion to Strike (ECF No. 207 ) is GRANTED. Signed by District Judge Ronnie L. White on 10/14/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
)
)
CALVIN FLETCHER, SR.,
)
)
Plaintiff,
) No. 4:14-CV-999 RLW
)
v.
)
)
JOSEPH TOMLINSON, et al.
)
)
Defendants.
)
MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs Motion and Application for Fees and
Expenses (ECF No. 195), Defendants John Moton and Nicholas Martorano ' s Motion for a New
Trial (ECF No. 201), Motion of Defendant John Moton for Judgment in His Favor as a Matter of
Law (ECF No. 203), Defendants John Moton and Nicholas Martorano's Motions to Alter or
Amend the Judgments (ECF No. 205), and Plaintiffs Motion to Strike (ECF No. 207).
I.

Defendants John Moton and Nicholas Martorano's Motion for a New Trial
(ECF No. 201)

Federal Rule of Civil Procedure 59 governs motions for a new trial. Rule 59 states, "[t]he
court may, on motion, grant a new trial on all or some of the issues-and to any party-as
follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in
an action at law in federal court; or (B) after a nonjury trial, for any reason for which a rehearing
has heretofore been granted in a suit in equity in federal court."
Defendants raise several reasons for this Court to grant their Motion for a New Trial.
First, Defendants claim it was prejudicial error for the Court to allow Plaintiff to read into
evidence the out-of-court opinions of Dr. Arnold Berns. (ECF No. 202 at 1-13). First, Plaintiff

claims that Plaintiff failed to demonstrate that Dr. Berns was "unavailable" under Rule 804(b)(1)
such to allow Plaintiff to read Dr. Berns' opinion testimony. Defendants state that Plaintiff never
showed that Dr. Berns was unavailable and the Court never made such a finding. (ECF No. 202
at 7). Defendants state that Plaintiffs counsel presented no evidence that they offered to pay Dr.
Berns his expert witness fee or that they made any effort to procure Dr. Berns' appearance at
trial, either live or by video. (ECF No. 202 at 9; ECF No. 212 at 4). Defendants claim that they
had no opportunity to cross-examine, impeach or discredit Dr. Berns' deposition testimony.
(ECF No. 202 at 9).

Likewise, Defendants argue that the Court never made the necessary

finding that Dr. Berns was unavailable. (ECF No. 212 at 7). Therefore, Defendants claim that
they are entitled to a new trial because Plaintiff should not have been allowed to read Dr. Berns'
opinions to the jury. (ECF No. 202 at 9).
Second, Defendants assert that Dr. Berns was never qualified to render the medical
opinions regarding Plaintiff. (ECF No. 202 at 9-10). Defendants assert that Dr. Berns was
originally identified as Corizon's witness, but Corizon did not appear at trial and never
established Dr. Berns' qualifications to render an opinion as to Plaintiff.
Third, Defendants maintain that the "erroneous admission" of Dr. Berns' out-of-court
opinions was prejudicial to Defendants. (ECF No . 202 at 11-12). Defendants state that Plaintiff
never identified or produced Dr. Berns to testify as an expert witness for Plaintiff. (ECF No. 202
at 11 ). As a result, Defendants claim that "Defendants never deposed Dr. Berns as an expert
witness for Plaintiff." (ECF No. 202 at 11). Defendants assert that Plaintiff put Dr. Berns on his
"may call" list of trial witnesses. (ECF No. 202 at 11-12). Defendants claim that they learned
only four days before the trial that Plaintiff intended only to read the deposition of Dr. Berns into
the record. (ECF No. 202 at 12). Defendants maintain that Plaintiff should have produced Dr.

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Berns at trial or not at all. (ECF No. 212 at 8-9). Defendants claim that they were prejudiced by
the reading of Dr. Berns' deposition at trial because Defendants were not given the opportunity
"to depose Dr. Berns as one of Plaintiffs experts or to identify their own rebuttal expert, or to
cross-examine Dr. Berns at trial." (ECF No. 202 at 12).
Additionally, Defendants assert that they did not waive their objections to the reading of
Dr. Berns' deposition because they failed to file their objections as part of their pretrial. (ECF
No. 212 at 11-12).

Defendants state that they had no objection to Plaintiffs deposition

designations for Dr. Berns as long as he would be available for cross-examination at trial.
Defendants maintain that once they learned that Dr. Berns would not testify at trial, they
objected. (ECF No. 212 at 12-13).
As an additional basis for a new trial, Defendants claim that Plaintiffs counsel falsely
stated during closing argument that Plaintiff had decided to dismiss his claims against Defendant
Corizon because Corizon's employees were not responsible for his injuries, not because Corizon
paid a substantial settlement. (ECF No. 202 at 13-16). Defendants state that Plaintiffs counsel
never explained the real reason why Corizon was no longer a defendant in the case. Instead,
Defendants claim that "the jury was left with the false impression-created by Plaintiffs
counsel-that it was the deposition testimony of Dr. Berns that persuaded the Plaintiff to ' let
[Corizon] go,' rather than the large financial settlement by Corizon." (ECF No. 202 at 14).
In response, Plaintiff provides that Defendants waived their objections to the use of the
deposition of Dr. Berns. (ECF No. 209 at 1). Plaintiff states that, pursuant to the Court' s Order,
he served his deposition designations, including the deposition designations for Dr. Berns, on
Defendants on July 19, 2016. (ECF No. 163). Under the Case Management Order, Defendants
were supposed to make any objections to those designations at least ten days before trial. (ECF

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No. 154). Defendants did not object within that time frame, and Plaintiff claims that Defendants
thereby waived any objections. Instead, Defendants raised this issue on the Friday before trial.
(ECF No. 178). Likewise, Plaintiff argues that Defendants did not file a Daubert motion to
challenge Dr. Berns' qualifications to testify, thereby waiving any argument regarding his
testimony. (ECF No. 209 at 2).
Plaintiff also claims that Dr. Berns was properly identified as an expert witness on
September 29, 2015 by Corizon and the Jail Defendants. (ECF No. 209 at 2 (citing Bliss v.
BNSF Ry. Co., No. 4:12CV3019, 2013 WL 5570231 , at *3 (D. Neb. Oct. 9, 2013) ("Irrespective

of which party discloses an expert report, once that disclosure is made, the purpose of requiring
expert disclosures is met.")). In fact, Defendants did not object or raise an issue as to Dr. Berns'
qualifications during trial. (ECF No. 209 at 2, n.2) . Plaintiff further notes that Defendants'
counsel attended the deposition of Dr. Berns on January 13, 2016 and extensively crossexamined Dr. Berns. (ECF No. 209 at 3). Plaintiff even paid for the deposition of Dr. Berns.
(ECF No. 209 at 3). Plaintiff states that he also identified Dr. Berns (as well as any other
retained experts disclosed by Defendants) as an expert witness. See ECF Nos. 209-4, 209-5.
Further, Plaintiff states that Dr. Berns' testimony was not hearsay because it meets the
standards of Federal Rule of Civil Procedure 32. (ECF No. 209 at 3-4 (citing Fed. R. Civ. P.
32(a), Fed. R. Evid. 802). 1 Plaintiff points out that Defendants' counsel attended Dr. Berns'

1

Fed. R. Civ. P. 32(a)(l) provides, "At a hearing or trial, all or part of a deposition may be used
against a party on these conditions: (A) the party was present or represented at the taking of the
deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under
the Federal Rules of Evidence ifthe deponent were present and testifying; and (C) the use is
allowed by Rule 32(a)(2) through (8)."
Fed. R. Evid. 802 provides, "Hearsay is not admissible unless any of the following provides
otherwise:

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deposition, after receiving proper notice, and cross-examined Dr. Berns. Plaintiff further asserts
that Dr. Berns was "unavailable" because he lives and practices medicine in Chicago, Illinois.
(ECF No . 209 at 4). Plaintiff made an additional showing of Dr. Berns' unavailability on the
record in trial. Plaintiff claims this satisfies Fed. R. Civ. P. 32(a)(4). 2 Plaintiff also maintains
that placing Dr. Berns' name on the "may call" witness list merely preserved the right to have
him appear at trial and did not preclude Plaintiff from playing Dr. Berns' deposition instead of
live testimony. (ECF No. 209 at 5-6).
Plaintiff again indicates that Dr. Berns was qualified to give expert medical opinions.
Plaintiff states that Defendants waived this issue several times. In addition, Plaintiff contends
that Dr. Berns' qualifications were detailed by Dr. Arkin and Dr. Berns himself. (ECF No. 209
at 6-7). Finally, Plaintiff asserts that Defendants were not prejudiced by the use of Dr. Berns'

•
•
•

a federal statute;
these rules; or
other rules prescribed by the Supreme Court."

2

A party may use for any purpose the deposition of a witness, whether or not a party, ifthe court
finds :
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the place of hearing or trial or is outside the
United States, unless it appears that the witness's absence was procured by the party offering the
deposition;
(C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition could not procure the witness's attendance by subpoena;
or
(E) on motion and notice, that exceptional circumstances make it desirable-in the interest of
justice and with due regard to the importance oflive testimony in open court- to permit the
deposition to be used.

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deposition because defense counsel cross-examined Dr. Berns as an expert. Plaintiff states it is
of no instance under the law whether Dr. Berns was designated as an expert for Corizon and the
Jail Defendants instead of for Plaintiff. (ECF No. 209 at 7-8 (citing Bliss v. BNSF Ry. Co., No.
4:12CV3019, 2013 WL 5570231 , at *3). Lastly, Plaintiff states that the overwhelming evidence,
particularly Plaintiff's severe injuries, further indicate that Defendants were not prejudiced by
Dr. Berns' testimony.
Plaintiff also states that a new trial is not warranted based upon Plaintiffs counsel's
closing argument. (ECF No. 209 at 9-10). Plaintiff points out that defense counsel asked for,
and received, a curative instruction. With respect to the curative instruction, defense counsel
said that "we' d be fine with that." (ECF No. 209 at 9-10 (citing United States v. Bolden, 545
F.3d 609, 630 (8th Cir. 2008)). Plaintiff states that no further objections or requests for relief
were made and Defendants failed to preserve their objection. (ECF No. 209 at 9-10 (citing

United States v. Foreman, 588 F.3d 1159, 1164 (8th Cir. 2009)).

In addition, Plaintiff contends

that a single isolated statement is insufficient to require a new trial. Indeed, Plaintiff notes that
Defendants have not argued that the judgment was against the weight of the evidence.
Moreover, Plaintiff points out that the Court' s instructions specifically told the jury that
"Lawyers' statements, arguments, questions and comments are not evidence." (ECF No. 209 at
11-13).
Here, the Court finds no basis for granting a new trial. The Court already addressed both
of the issues identified by Defendants as bases for his motion for a new trial. First, the Court
addressed all of Defendants' objections to the testimony of Dr. Berns. The Court noted that Dr.
Berns was disclosed as a witness by another defendant to this litigation and was cross-examined
thoroughly by Defendants' counsel. Defendants claim that they were prejudiced because they

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were unable to cross-examine Dr. Berns when he was an expert witness for Plaintiff. However,
this appears to be a distinction without a difference. See Bliss, 2013 WL 5570231 , at *3.
Defendants fail to identify how their questioning of Dr. Berns would have been different if they
had known that Dr. Berns was an expert on behalf of Plaintiff, instead of the other defendants.
Further, the Court holds that Plaintiff satisfied the "unavailability" requirement under Fed. R.
Civ. P. 32(a) by presenting a letter to the Court from Dr. Berns' Chicago office that he would be
unavailable for trial because he would be practicing medicine in Chicago.

The Court further

holds that Plaintiff placing Dr. Berns on the "may call" list did not preclude Plaintiff from
utilizing his deposition, which was clearly identified in Plaintiffs deposition designations.
Finally, the Court holds that Defendants cannot contend post-trial that Dr. Berns was unqualified
to provide expert testimony.

Defendants never filed a Daubert motion challenging his

qualifications. Likewise, Defendants did not raise this issue before the Court when Defendants
addressed the testimony of Dr. Berns immediately before the trial. Defendants have waived the
right to assert that Dr. Berns was unqualified. Moreover, the Court held (and again holds) that
the record is clear that Dr. Berns, a nephrologist, was qualified to provide his medical opinions.
Likewise, the Court holds that the curative instruction given during Plaintiffs counsel's
closing argument was adequate.

United States v. Urick, 431 F.3d 300, 304 (8th Cir. 2005);

United States v. Coleman, 349 F.3d 1077, 1087 (8th Cir.2003) (quoting United States v. Muza,
788 F.2d 1309, 1312 (8th Cir.1986) (the admission of a prejudicial statement is '"ordinarily
cured by striking the testimony and instructing the jury to disregard the remark"'). Defense
counsel agreed to the curative instruction no further request for relief was requested. Further,
given the extensive testimony regarding Plaintiffs injuries, the Court does not believe that the

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trial was so tainted that a new trial should be held. The Court denies Defendants' Motion for a
New Trial.

II.

Motion of Defendant John Moton for Judgment in His Favor as a Matter of
Law (ECF No. 203) and Plaintiff's Motion to Strike (ECF No. 207)

Defendant Moton claims that he is entitled to judgment as a matter of law because no
evidence at trial showed that he engaged in any conduct that constituted excessive force and
there is no evidence that Defendant Moton was one of the officers who caused Plaintiffs
injuries. (ECF No. 203). Defendant Moton further claims that he is entitled to judgment as a
matter of law because Plaintiffs evidence at trial was insufficient to overcome Defendant
Moton' s affirmative defense under the doctrine of qualified immunity.
Plaintiff has moved to strike the Motion of Defendant John Moton for Judgment in His
Favor as a Matter of Law. (ECF No. 207). Plaintiff notes that Defendant Moton is precluded
from seeking such relief because he did not move for directed verdict or otherwise move for
judgment as a matter of law during trial on behalf of Defendant Moton on the § 1983 count.
Even though Defendant Moton failed to move for judgment in his favor at the close of the
trial ' s evidence, Defendant Moton claims that this Court should still consider his Motion for
Judgment in His Favor as a Matter of Law because this Court has discretion to do so and to
ensure that there has been no miscarriage of justice. (ECF No. 211 (citing Murphy v. City of

Long Beach, 914 F.2d 183, 187 (9th Cir. 1990) (new trial awarded where the verdict was
contrary to the weight of the evidence and improper instructions were given); Cheney v. Moler,
285 F.2d 116, 118 (10th Cir. 1960) (new trial awarded where the plaintiff was granted judgment
without an award of damages)). Moton further argues that such a motion would have been
"futile," considering that his counsel' s motions for directed verdict in favor of Officers
Tomlinson and Carroll were denied.

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The Eighth Circuit has held that " [a] motion for judgment as a matter of law under
Fed.R.Civ.P. 50 requires that the moving party make the motion prior to the time the case goes
to the jury." Douglas Cty. Bank & Trust Co. v. United Fin. Inc., 207 F.3d 473, 477 (8th Cir.
2000). The Eighth Circuit recognizes three exceptions to this rule:
The first exception allows a movant to challenge a jury verdict without moving
for a judgment as a matter of law at the close of evidence if their earlier Rule
50(a) motion 1) was raised prior to the close of all of the evidence; and 2) the
court indicated that the movant need not renew its motion under Rule 50(b) in
order to preserve its right to challenge the verdict. Pulla v. Amoco Oil Co. , 72
F.3d 648, 655 (8th Cir.1995). The second exception excuses the movant from
complying with Rule 50 if no new evidence is presented after the original motion
and that a tacit understanding exists that the movant need not renew its motion at
the close of all the evidence. K & S Partnership v. Continental Bank, 127 F.R.D.
664, 666-67 (D.Neb.1989), affd in part, rev'd in part, 952 F.2d 971 (8th
Cir.1991 ). The third exception occurs where a short period of time elapses
between the movant's initial motion and the close of all evidence, but the movant
fails to renew its motion as directed by Rule 50(b ). BE & K Construction Co. v.
United Brotherhood of Carpenters & Joiners ofAmerica, 90 F .3d 1318, 1325 (8th
Cir.1996).
Douglas Cty. Bank & Trust Co. v. United Fin. Inc., 207 F.3d 473 , 477- 78 (8th Cir. 2000). In

this case, Defendant Moton does not allege that this case falls within any of those exceptions. In
fact, Defendant Moton admits that his counsel "neglected to request a directed verdict on behalf
of Officer Moton." (ECF No. 211). The Court further notes that the caselaw cited by Defendant
Moton against the Motion to Strike is neither from the Eighth Circuit, nor do the cases involve
failure to file a motion for a directed verdict prior to filing a post-trial motion for judgment as a
matter of law. See Murphy, 914 F.2d at 187; Cheney, 285 F.2d at 118. Thus, based upon Eighth
Circuit precedent, the Court denies the Defendant Moton' s Motion for Judgment in His Favor as
a Matter of Law (ECF No. 203) because Defendant Moton failed to file a motion for directed
verdict before the end of the case. In tum, the Court will grant Plaintiffs Motion to Strike (ECF
No. 207).

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III.

Defendants John Moton and Nicholas Martorano's Motions to Alter or
Amend the Judgments (ECF No. 205)

Defendants Moton and Martorano objected at trial to the submission of Plaintiffs claims
for punitive damages and to the jury instructions on punitive damages. The Court overruled
Defendants' objections and submitted Plaintiffs claims for punitive damages to the jury. The
jury verdicts awarded punitive damages on two of Plaintiffs claims: (1) punitive damages of
$200,000 on the claim against Officer Moton and (2) punitive damages of an another $200,000
on the claim against Officer Martorano. (ECF No. 190). Defendants argue that the undisputed
evidence that Officer Moton used more force than was necessary. Defendants also note that
Plaintiff could not identify Officer Motion and believed that all of his arresting officers were
Caucasian. Defendants also claim that, although there was evidence that Plaintiff was injured by
Martorano, there was no evidence that Officer Martorano acted with malice or ill will. Rather,
Defendants claim that the evidence shows that Defendant Martorano acted with the amount of
force necessary to deal with a fleeing suspect who refused to provide his hands to officers.
Finally, Defendants argue that the punitive damages award is excessive and should be reduced
by half of what the jury awarded.
In response, Plaintiff argues that Defendants have not established that they are entitled to
relief under Fed. R. Civ. P. 59 because Defendants have not shown that there was a manifest
error of law or fact or presented new evidence. (ECF No. 210). Plaintiff claims that he never
resisted arrest but was beaten as punishment for backing away from the officers. Plaintiff
contends that Defendants broke his eye socket and nose, beat him until his kidneys nearly shut
down and caused internal bleeding to his brain.

Plaintiff asserts that Officer Martorano hit

Plaintiff in the face with a blackjack and Officer Moton beat Plaintiff with a baton while he was
lying on the ground. Plaintiff states that the officers cursed at him while he was beaten, which is

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evidence of malice. Plaintiff references two medical doctors who testified that Plaintiffs injuries
were caused by the officers' beating of Plaintiff. Plaintiff states that he was tasered by Officer
Martorano after he was already handcuffed and not resisting any way. Plaintiff claims that the
punitive damages were not excessive and were a reasonable two times the total actual damages.
Plaintiff contends that a 2: 1 ratio is "well within the range of what courts have found to be
reasonable and not excessive." (ECF No. 210 at 6).
The Eighth Circuit has specifically identified when punitive damages are permissible in a
case such as this:
Punitive damages may be awarded under 42 U.S.C. § 1983 "when the defendant's
conduct is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others." Smith
v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Punitive
damages punish a defendant for outrageous, intentional, or malicious conduct, and
deter similar extreme conduct in the future. Id. at 54, 103 S.Ct. 1625; City of
Newport v. Fact Concerts, Inc., 453 U.S . 247, 266-67, 101 S.Ct. 2748, 69
L.Ed.2d 616 (1981). 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. Coleman, 114 F.3d at 787.
Schaub v. VonWald, 638 F.3d 905, 922- 23 (8th Cir. 2011).
The Court agrees that Defendants have not shown a sufficient basis for altering and
amending the judgment. The jury returned a verdict in favor of Plaintiff on his excessive force
claims against Defendants Moton and Martorano. The jury clearly believed Plaintiffs version of
events with respect to Defendants Moton and Martorano. The jury verdict reflects a finding of
malice, recklessness or callous indifference to Plaintiffs right to be free from excessive force .
The Court holds that there was sufficient evidence of malice, recklessness or callous indifference
to support this verdict based upon the extensive injuries suffered by Plaintiff, as well as his
testimony that he was beaten after he complied with the officers and after he was handcuffed.
The jury also relied upon the expert witness testimony that Plaintiffs injuries were caused by the

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actions of Defendants Moton and Martorano. Based upon all of the foregoing, the jury had a
reasonable basis for awarding punitive damages to Plaintiff. Likewise, the Court notes that other
courts have upheld punitive damages awards far in excess of a 2: 1 ratio present here. See Lee ex
rel. Lee v. Borders, 764 F.3d 966, 975-76 (8th Cir. 2014); Ondrisek v. Hoffman , 698 F.3d 1020,
1029 (8th Cir. 2012) (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425
(2003) ("But, ' in practice, few awards exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will satisfy due process."'). Plaintiffs 2: 1 ratio
of punitive to compensatory damages does not yet reach the 4:1 ratio that the Supreme Court has
"'concluded ... might be close to the line of constitutional impropriety."' Ondrisek, 698 F.3d at
1029 (quoting Campbell, 538 U.S. at 425). The Court denies Defendants' Motion to Alter or
Amend the Judgment.
IV.

Plaintiff's Motion and Application for Fees and Expenses (ECF No. 195)

The Court first notes that Plaintiff succeeded on his § 1983 claims for two out of the four
defendant police officers. Plaintiff obtained an award against Defendants Moton and Martorano
in the total amount of $600,000 ($100,000 in actual damages and $200,000 in punitive damages
against each of those two Defendants). Plaintiff seeks a fee and expense award of $320,210.53.
$290,600.00 is attributable to attorneys' time spent on the litigation, $7,712.50 is attributable to
interns' time spent on the litigation, and $21,898.03 is attributable to expenses (including expert
witness fees).
"When a plaintiff has prevailed on some claims but not on others, the plaintiff may be
compensated for time spent on unsuccessful claims that were related to his successful claims, but
not for time spent on unsuccessful claims that were 'distinct in all respects from his successful
claims."' Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001) (quoting Hensley v. Eckerhart,

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461 U.S. 424, 440 (1983)). The Court must consider the relationship between plaintiffs
successful and unsuccessful claims and consider the common questions of law and fact that exist
among the claims by plaintiff against the four defendants. See Lash v. Hollis, 525 F.3d 636, 642
(8th Cir. 2008); Emery, 272 F .3d at 1046 ("Claims are related, and hence deserving of
compensation, if they ' involve a common core of facts ' or are ' based on related legal theories.'"
(quoting Hensley, 461 U.S. at 435)).

Plaintiff maintains that he is the prevailing party and is entitled to attorneys ' fees under
§1988. Plaintiff asks this Court to award the Lodestar amount, which the number of hours spent
by counsel multiplied by a reasonable hourly rate. Mr. Tatlow and Mr. Zoole' s hourly rates are
$450 per hour, Mr. Jeffrey Herman' s (a former associate with Bollwerk & Tatlow) hourly rate is
$250 per hour, and Mr. Lucas Cusak and Mr. Thomas Mihalczo ' s (law clerks with Bollwerk &
Tatlow) hourly rates are $50 per hour. To avoid duplication of efforts, Mr. Tatlow and Mr.
Zoole split their time and efforts in final trial preparation and trial time based upon whether the
task was more closely oriented to the complex medical testimony and exhibits to be presented
(which Mr. Tatlow focused on), or to the other liability-related civil rights issues (which Mr.
Zoole focused on). (ECF No. 196 at 5-6). Plaintiff notes that Defendants had several different
lawyers handling this case throughout its history, including two lawyers at trial.

Plaintiff claims that, according to his research, the result obtained is the second-largest
police misconduct verdict rendered in the Eastern District of Missouri so far this century.
Plaintiff asserts that the prevailing party is entitled to all the time spent, even on claims as to
which there was no favorable judgment, unless the unsuccessful claims are wholly unrelated to
each other. (ECF No. 196 at 6-7). Plaintiff further argues that he is entitled to his attorneys' fees
because this case served the important public service job of "rooting out police misconduct[.]"
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(ECF No. 196 at 8). Plaintiff also notes that counsel had several large hurdles to obtaining a
favorable verdict:

Spotless records of the officers
Zealous representation by opposing counsel
No criminal or departmental investigation regarding this incident
Plaintiff had pleaded guilty to defrauding the United States
Unfavorable SLPD police report regarding this incident.

(ECF No. 196 at 8). Finally, Plaintiff notes that, prior to trial, he had offered to settle this case
for $100,000, and left open the door to settling for as little as $50,000. Defendants, however,
only offered $10,000. Plaintiff claims that achieving a verdict so far in excess of the proposed
settlement amount indicates the success of the case as a whole. (ECF No. 196 at 9).

In response, Defendants argues that Plaintiffs claim for attorneys' fees should be denied
because he lost on all of the claims against Officers Tomlinson and Carroll. (ECF No. 197 at 1).
Because Plaintiff was not the "prevailing party" with respect to Officers Tomlinson and Carroll,
Defendants argue that Plaintiff is not entitled to fees for each of those claims.

Moreover,

Defendants assert that Plaintiff is not entitled to attorney's fees for Plaintiffs claims against the
ten other defendants that he sued in his Complaint and Amended Complaint (ECF No. 197 at 56). In addition, Defendants criticize Plaintiff for not providing any time and expense records to
support counsel's request for fees. (ECF No. 197 at 7-9). Defendants assert that they cannot tell
from counsel's submission how much time was expended on claims against Moton and
Martorano; how much time was spend pursuing claims against other defendants; how much time
was wasted; how much time was duplicative; and how much time was compensable.

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After Defendants filed their opposition, Plaintiff supplemented his Motion for Attorney's
fees and provided a detailed record of each person's time spent on the case for the Plaintiff.
(ECF No. 198).

Plaintiff also provided a Reply Memorandum In Support of Motion and

Application for Fees and Expenses. (ECF No. 200). Plaintiff pointed out that Defendants did
not contest (1) the validity and reasonableness of the asserted hourly rates, (2) the inclusion of
law clerks as hourly billers, (3) the reasonableness of the expert witness fees and all other
costs/expenses sought, (4) the reasonableness of having several people work on the case and of
having two lawyers preparing for and trying the case, (5) that Defendants defended zealously,
and (6) this case presented an important issue and its result in pointing out substantial police
misconduct is a great public service. (ECF No. 200 at 1-2). Plaintiff claims that Defendants'
objections to the attorneys' fees award is based upon the faulty premise that the time devoted to
claims other than those against Defendants Matrorano and Moton are not compensable. Plaintiff
claims that the prevailing party is entitled to fees incurred with respect to unsuccessful claims
unless the other claims were "distinct in all respects" from the successful ones. (ECF No. 200 at
2 (citing Hensley, 461 U.S . at 440)).

Plaintiff maintains that the claims in this case are

interrelated and arose out of a "common core of facts. " Although Plaintiff contends that the each
of the four officers used different kinds of excessive force, Plaintiff maintains that Defendants
have failed to establish how these claims could be "wholly distinct" from each other for purposes
of excessive force.
Section 1988 provides that a prevailing party in certain civil rights actions may recover "a
reasonable attorney's fee as part of the costs." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
550, 130 S. Ct. 1662, 1671, 176 L. Ed. 2d 494 (2010). The "'lodestar' figure has, as its name
suggests, become the guiding light of our fee-shifting jurisprudence." Perdue, 559 U.S. at 551.

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The "lodestar" is calculated by determining the number of hours reasonably expended multiplied
by the applicable hourly market rate for the relevant legal services. The rate is determined by
reference to the marketplace. The hours reasonably expended are determined by reviewing the
records submitted by counsel, verifying the accuracy of the records, and then deducting
excessive, redundant, or otherwise unnecessary work. The lodestar also must be reduced if
success is only partial. "Partial success" refers to the failure to win on all claims when the
claims and relief are separate. In such a case, a fee is not awarded for work on the unsuccessful
claims; that is, all hours attributed to the discrete claim are disregarded.
"The most important factor in determining what is a reasonable fee is the magnitude of
the plaintiffs success in the case as a whole." Jenkins v. Missouri, 127 F.3d 709, 716 (8th Cir.
1997) (en bane); see Hensley, 461 U.S. at 436, 103 S.Ct. 1933 (" [T]he product of hours
reasonably expended on the litigation as a whole times a reasonable hourly rate may be an
excessive amount. This will be true even where the plaintiffs claims were interrelated,
nonfrivolous, and raised in good faith. "). Clearly, Plaintiff was the prevailing party in some
respects because he obtained a $600,000 judgment against Defendants Moton and Martorano.
However, this evaluation is difficult in a case such as this where Plaintiff was successful against
some, but not all of the defendants, and where Plaintiff settled his claims against other
defendants. "[T]he lodestar amount may be excessive if the plaintiff ultimately achieved only
partial or limited success on his claims as a whole." Ladd v. Pickering, 783 F. Supp. 2d 1079,
1096 (E.D. Mo. 2011) (citing Hensley, 461 U.S . at 436).
As an initial matter, Defendants also have not argued that Plaintiffs claim for expenses
in the amount of $21,898.03 should be reduced. The Court, therefore, will award Plaintiff those
expenses without any reduction. The Court also notes that Defendants have not challenged
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Plaintiffs counsel' s hourly rate, expenses (including expert witness fees), or the quality of
Plaintiffs representation.

However, the Court believes that Plaintiff has requested fees in excess of those that
should be permitted under Section 1988. First, the Court does not believe that the claims of all
of the officers is so intertwined that there should not be any reduction based upon Plaintiff's lack
of success against some of the officers. The Court understands that some discovery, particularly
with respect to the nature and extent of Plaintiff's injuries might involve the same common core
of facts . However, the jury clearly was able to differentiate between the actions of Defendants
Moton and Martorano and Defendants Tomlinson and Carroll. The jury evaluated the distinct
and particular force used by each individual defendant to determine whether such force was
excessive under the circumstances. Because the claims litigated at trial were, to a certain extent,
distinct acts by four separate officers who were not found liable for the actions of each other, the
Court holds that a twenty percent fee reduction of Plaintiff's requested attorneys' and intern fees
is appropriate based upon counsel's limited success at trial.
The Court further notes that there are several entries where time recorded is excessive.
See Ladd v. Pickering, 783 F. Supp. 2d 1079, 1094 (E.D. Mo. 2011) (noting excessive time

billed). For example, Mr. Herman spent 7.5 hours working on and revising the proposed
scheduling order in October 2014; Mr. Tatlow charged .75 hours to review and revise the Joint
Scheduling Plan on October 15, 2014; Mr. Herman spent 4.0 hours researching and drafting a
motion to compel against the City of St. Louis; Mr. Zoole charged .3 hours for draft, review,
proofread, and file Entry of Appearance on December 1, 2015 ; Mr. Zoole charged .2 hours for
reading A. Haywood' s entry on December 8, 2015 ; Mr. Zoole charged .8 hours for travel to and
from B. Luepke ' s office for a deposition on May 17, 2016. Plaintiff also has included charges
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that are irrelevant to Plaintiff's claims against these individual defendants. For example, Mr.
Tatlow charged 4.75 hours reviewing and responding to the motions to dismiss of the City and
Corizon in July and August 2014; Mr. Herman spent 1.5 hours reviewing the City of St. Louis'
supplemental response on November 24, 2015 ; Mr. Tatlow charged .25 hours for a call with
Plaintiff regarding Corizon; Mr. Tatlow charged 1.0 hours to review the respond to the Police
Board' s Motion for Summary Judgment; Mr. Zoole charged 2.0 hours to read summary
judgment motions, memoranda, statement of uncontroverted material facts, and supporting
exhibits of the Police Board Defendants, the City of St. Louis, and the Corizon (City Jail
Infirmary) Defendants on January 27, 2016; Mr. Zoole charged 1.0 hours for cite-checking and
researching the Police Board Defendants' and City' s summary judgment motions and
memoranda on January 31 , 2016; Mr. Zoole charged .5 hours to prepare and file Motion to
Voluntarily Dismiss City and Police Board Defendants; Mr. Zoole charged .4 hours for a
telephone conference from O' Sullivan and Haywood on February 26, 2016. The Court holds that
the claims against the Police Board, the City of St. Louis, and Corizon defendants are distinct
from Plaintiffs claims against the individual defendants who went to trial. The theories of
liability against the other defendants required different factual and legal proof than the claims
against the individual officers.

Therefore, the Court holds that Plaintiff cannot seek

compensation for any time spent prosecuting, litigating or settling those claims. Thus, based
upon the excessive time charged and the time charged for claims against other, unrelated
defendants, the Court will reduce Plaintiffs attorneys ' and intern fees by an additional twentyfive percent.
The Court nevertheless recognizes that Plaintiff achieved victory in this case, "no small
feat for a civil-rights plaintiff." Ladd, 783 F. Supp. 2d at 1096. For all of these reasons, the

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Court concludes that a reduction in the number of hours claimed-as outlined above- is
warranted. Ladd, 783 F. Supp. 2d at 1095 . Rather than make a line-by-line cut to account for
these issues, the Court will exercise its discretion to make a percentage reduction. See, e. g.,

Rural Water Sys. No. 1 v. City of Sioux Ctr., 202 F.3d 1035, 1039 (8th Cir.2000) (affirming
percentage reduction based on, inter alia, "excess hours[ ] and duplication"). The Court will
reduce Plaintiffs requested attorneys' fee award in the amount of forty-five percent. The court
finds this fee is appropriate, even in light of the zealous and professional representation Plaintiff
received, because, after all, this litigation culminated in only a three-day jury trial. Rural Water

Sys. No. 1, 38 F. Supp. 2d at 1067.

Therefore, the Court will award Plaintiff his $21 ,898 .03 in expenses. In addition, the
Court will award Plaintiff fifty-five percent of his requested attorneys ' fees, of $164,071.88. The
Court makes a total award of$185,969.91 to Plaintiff pursuant to Section 1988.

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs Motion and Application for Fees and

Expenses (ECF No. 195) is DENIED, in part, and GRANTED, in part. The Court awards
Plaintiff $185,969.91 in fees .
IT IS FURTHER ORDERED that Defendants John Moton and Nicholas Martorano ' s

Motion for a New Trial (ECF No. 201), Motion of Defendant John Moton for Judgment in His
Favor as a Matter of Law (ECF No. 203), and Defendants John Moton and Nicholas Martorano ' s
Motions to Alter or Amend the Judgments (ECF No. 205) are DENIED.
IT IS FINALLY ORDERED that Plaintiffs Motion to Strike (ECF No. 207) is
GRANTED.

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Dated this 14th day of October, 2016.

~~~

RONNIE L. WIDTE
UNITED STATES DISTRICT JUDGE

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