O'Day, et al v. Nassau County, et al
Filing
390
ORDER re 386 : For the reasons set forth in the attached Memorandum & Order, defendants' application is granted. Ordered by Senior Judge Denis R. Hurley on 10/19/2011. (Monaco, Laura)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GARDY AUGUSTIN, HEIDI KANE, MARY
KATHERINE PUGLIESE, GREGG WILLS, STEVEN
ROTH, OSCAR AVELAR, RALPH DILIELLO, et al,
individually and on behalf of all others similarly situated,
MEMORANDUM & ORDER
CV 99-3126 (DRH) (ARL)
Plaintiffs,
v.
JOSEPH JABLONSKY, individually and as Nassau County
Sheriff, JOHN AND JANE DOES NO. 1-100, and
COUNTY OF NASSAU, a municipal corporation,
Defendants.
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FRANCIS O’DAY and STUART MOSKOWITZ,
individually and on behalf of all others similarly situated,
CV 99-2844 (DRH) (ARL)
Plaintiffs,
v.
NASSAU COUNTY, NASSAU COUNTY SHERIFF’S
DEPARTMENT, DIVISION OF CORRECTION,
JOSEPH JABLONSKY, Nassau County Sheriff, and
JANE/JOHN DOES Nos. 1-200,
Defendants.
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JOHN IAFFALDANO, individually and on behalf of all
others similarly situated,
Plaintiff,
v.
THE COUNTY OF NASSAU, THE NASSAU COUNTY
SHERIFF’S DEPARTMENT, DIVISION OF
CORRECTIONS, and JOSEPH P. JABLONSKY, Sheriff
of Nassau County,
Defendants.
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CV 99-4238 (DRH) (ARL)
APPEARANCES:
For Plaintiffs:
Giskan Solotaroff Anderson & Stewart LLP
11 Broadway, Suite 2150
New York, New York 10004
By:
Robert L. Herbst, Esq.
Oren Giskan, Esq.
Beldock Levine & Hoffman LLP
99 Park Avenue, Suite 160
New York, New York 10016
By:
Vera M. Scanlon, Esq.
Emery Celli Brinckerhoff & Abady LLP
75 Rockefeller Plaza, 20th Floor
New York, New York 10019
By:
Matthew D. Brinckerhoff, Esq.
Mariann Wang, Esq.
Wolf Haldenstein Adler Freeman & Herz, LLP
270 Madison Avenue
New York, New York 10016
By:
Jeffrey G. Smith, Esq.
Martin Restituyo, Esq.
For Defendants:
John Ciampoli
Nassau County Attorney
One West Street
Mineola, New York 11501
By:
Dennis J. Saffron, Esq.
Liora Ben-Sorek, Esq.
HURLEY, Senior District Judge:
Presently before the Court is a motion by defendants seeking “to decertify the class going
forward now that the issue of common general damages upon which the Court based class
2
certification has been resolved.” (Defs.’ Mem. at 1.)1 Plaintiffs oppose the application, asserting
that the Court can (and should) compensate class members for damages stemming from “gardenvariety emotional distress, shame and humiliation that flow naturally from being unlawfully strip
searched,” and that “these general damages for garden-variety emotional distress, shame and
humiliation should be determined and awarded on a class-wide basis in a single trial in this class
action as soon as possible.” (Pls.’ Opp’n at 5.) For the reasons that follow, defendants’
application is granted.
BACKGROUND
The background of this action is set forth in the prior decisions of this Court, familiarity
with which is presumed. The Court will partially reiterate an abbreviated history in order to
provide context for the Court’s analysis and rulings, infra.
Class Certification
These consolidated actions were commenced in 1999 seeking damages due to the blanket
policy of the Nassau County Correctional Center of strip searching newly admitted individuals
arrested for misdemeanors or non-criminal offenses in Nassau County. Extensive pretrial motion
practice ensued, including plaintiffs’ numerous attempts to achieve class certification. In
response thereto, defendants conceded liability. Based on that concession, this Court deleted
liability from the certification analysis and denied class treatment. On appeal, the Second Circuit
1
Defendants note, preliminarily, that “it is not at all clear that a formal
decertification order would even be necessary to end this litigation now that the common
damages issue has been resolved, because it is not at all clear that the current certification
extends to special damages . . . Thus, it appears as if the Court would need to affirmatively
certify a subclass or subclasses in order to continue the litigation, rather than [ ] formally
decertify the class in order to bring it to a conclusion.” (Defs.’ Mem. at 2.)
3
reversed and directed this Court “to certify a class on the issue of liability . . . and consider anew
whether to certify a class as to damages as well.” In re Nassau County Strip Search Cases, 461
F.3d 219, 231 (2d Cir. 2006). Accordingly, the Court certified a class as to liability and entered
summary judgment on liability in favor of the class and each of its members. (Jan. 16, 2007
Order at 2.) After the Court sought input from the parties concerning damages certification,
plaintiffs filed an application to certify the class as to plaintiffs’ entire claims, i.e., to extend class
certification to include damages.
March 27, 2008 Memorandum and Order
In a Memorandum and Order dated March 27, 2008, the Court addressed the question of
whether a damages class could be certified pursuant to Rule 23(b)(3). (Mar. 27, 2008 Mem. &
Order at 4.) Having previously determined that Rule 23(a)’s requirements of numerosity,
commonality, typicality and adequacy had been met in this case, the Court considered whether
plaintiffs sufficiently demonstrated both (1) that the damages questions of law or fact common to
the members of the class predominated over any damages issues affecting only individual
members; and (2) that a class action was superior to other available methods for the fair and
efficient adjudication of the damages controversy. (Id.) Plaintiffs argued, and the Court agreed,
that an injury to human dignity was necessarily entailed in being strip searched and thus was
common to each member of the class as to its cause and the resulting general, or presumed – as
distinct from the special – damages sustained. (Id. at 6.)
Over the objection of defendants, the Court, relying heavily by analogy on the Second
4
Circuit’s decision in Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004),2 found that the
issue of general damages due to the asserted injury to human dignity predominated (Mar. 27,
2008 Mem. & Order at 7-11), and concluded that where, as here, “class members were aggrieved
by a single, admittedly unlawful policy [resulting in] a strong commonality between the strip
search violation and the harm,” there was “no reason [to believe] that a jury . . . could not
determine an amount of general damages awardable to each member of the class.” (Id. at 12.)
That comment, however, was coupled with the caveat that “care would have to be taken to ensure
that the amount awarded for general damages excludes all elements of special damages that
individual class member[s] might [later] pursue.” (Id. at 12-13 (emphasis added).) The Court
noted, in closing, that “Plaintiffs are not asking this Court to select a particular damages model or
to certify any subclasses for special damages as to do so would be ‘premature.’” (Id. at 13-14
(emphasis added).)
March 16, 2009 Memorandum and Order
Subsequently, the Court held a conference in advance of the upcoming trial for general
damages and, by Memorandum and Order dated March 16, 2009, addressed several issues that
2
In Kerman, a jury found that the plaintiff’s Fourth Amendment rights were
violated by his unjustified detention in a psychiatric hospital overnight, but awarded him only
nominal damages. The Second Circuit found that he was entitled to a new trial with respect to
his claim for damages due to his loss of liberty. The Circuit noted that a plaintiff is never
automatically entitled to a substantial damages award simply because he has been deprived of a
constitutional right. See Kerman, 374 F.3d at 122-23. But where, as in Kerman, a jury found
that a constitutional violation unquestionably resulted in an injury to the plaintiff, that plaintiff
was entitled to an award of “compensatory, not merely nominal, damages.” Id. at 125. In its
March 27, 2008 Memorandum & Order, this Court saw no dispute that the unconstitutional strip
searches at issue “resulted in some injury to the class members.” (Mar. 27, 2008 Mem. & Order
at 10.) For the reasons set forth in Kerman, the Court found that “[a]t the very least, class
members are entitled to general damages.” (Id. at 11.)
5
arose during that conference. In particular, the issue of whether the trial witnesses would be
permitted to testify not only “as to the details of the strip search that he or she experienced[,] . . .
but also any concomitant feelings of humiliation, embarrassment or other reaction experienced
by the witness as a result of the process.” (Mar. 16, 2009 Mem. & Order at 2.) The Court
recognized that if trial witnesses “were permitted to testify concerning the humiliation and other
effects” of the strip search that he or she individually experienced as distinct from those which
may be presumed to have been inflicted on all persons so victimized, “the amount determined by
the jury would be less likely to be representative of the general damage sustained by each
member of the class.” (Id. at 5-6.) The reason for that is, “if provided a choice, plaintiffs’
counsel surely, and legitimately so, would call to the stand those plaintiffs among the 17,000 plus
class members they believed to be the most severely impacted from being strip searched.” (Id. at
5-6.) The Court reasoned that “excluding such specific impact evidence from this part of the
proceeding” would “essentially eliminate[ ]” the “problem of a non-representative per plaintiff
amount being returned by the jury.” (Id. at 6.) Accordingly, each party was permitted to “call up
to ten fact witnesses from the class . . . [to] testify solely concerning the details of the search
without any information concerning the effect that the search had upon them” personally. (Id.)
The Court continued that “[t]his line of demarcation as to the parameters of permissible
testimony will not negatively effect any individual plaintiff because to the extent such individual
did sustain humiliation, embarrassment or emotional distress [beyond those presumed from being
unlawfully strip searched], those items may be pursued during the special damages portion of the
proceeding which will be held before another jury.” (Id. at 7.) The March 16, 2009 decision
concluded with the observation that the Court had “thus far only addressed general damage class
6
certification; at the conclusion of this phase of the proceeding, the court and the parties will
discuss what further damage subclasses should be certified, if any, and how the remainder of the
case will be resolved.” (Id. at 7 n.2.)
The Award of General Damages
The parties subsequently waived the right to a jury trial and submitted the issue of a
general damages determination to the Court. A bench trial was held over eleven days, ending on
December 16, 2009, with all post-trial submissions being filed by April 14, 2010. By decision
dated September 22, 2010, general damages in the amount of $500 per strip search were
awarded,3 coupled with the observation that “the special damages sustained by class members is
a subject for another day.” (Sept. 22, 2010 Mem. & Order at 66.)
On October 2, 2010, a status conference was held to discuss, inter alia, “how to handle
the second phase of the case, the special damages.” (Tr. of Oct. 1, 2010 Status Conf. (“Tr.”) at
21.) Specifically, the Court sought input from the parties regarding “whether the special damage
part of the case should be bifurcated between what the attorneys call garden-variety . . . [and]
some heightened type of special damage.” (Id.) Plaintiffs expressed their view that for the
“second phase” “there ought to be a single trial, either before a Judge or a jury, to try to fix an
aggregate class award for the garden-variety emotional distress damage.” (Id. at 34.) Plaintiffs
contended that “[w]e have been defining special damages as those subjective feeling damages
that are different from the general human dignity damages . . . And everybody in the [c]lass has
those, or those can be determined on a class-wide basis for those.” (Id. at 50-51.) After the
3
Class membership is approximately 17,000; some class members were strip
searched more than once, resulting in approximately 22,000 strip searches of class members
during the class period.
7
status conference, the parties were directed to submit further briefing regarding, inter alia,
whether a common trial for “garden-variety”4 special damages may be held. (Oct. 8, 2010 Order
at 1-2.) After reviewing the defendants’ briefs submitted on the common special damages issue,
the Court issued an Electronic Order dated January 25, 2011 stating that “Defendants have asked
for leave to move to decertify now that the issue of general damages has been resolved,” and set a
briefing schedule for that motion. (Elec. Order, Jan. 25, 2011.)
DISCUSSION
I.
The Parties’ Contentions
Defendants assert that “there is no substantive justification for continuing class litigation
of any remaining individual special damage claims now that the common class damages issue has
been resolved.” (Defs.’ Mem. at 4.) Preliminarily, defendants contend that “while the Court and
the parties have come to speak of a ‘Phase 2’ special damages proceeding as if it were a given, in
its formal rulings the Court has held in abeyance the question of whether to litigate such damages
in the present class action . . . Thus, it appears as if the Court would need to affirmatively certify
a subclass or subclasses in order to continue the litigation, rather than need to formally decertify
the class in order to bring it to a conclusion.” (Id. at 3.) In any event, defendants argue that the
Court should decline to certify (or decertify, as the case may be) any special damages subclasses
because, as noted in this Court’s previous decisions denying class certification, special damages
are “too inherently individualized and variable to be tried on a class basis.” (Id. at 4.)
4
“Garden-variety,” as used herein, is plaintiffs’ term – not the Court’s. Plaintiffs
use the term to suggest a form of damages that have a certain degree of commonality, such that
individualized proof would not be necessary. In repeating plaintiffs’ “garden-variety” term in
this Memorandum & Order, the Court does not adopt or attempt to reconvey such a suggested
meaning.
8
Defendants assert that the resolution of the “sole predominant common issue” – the common
injury to human dignity – leaves the litigation “without a sufficiently common injury to support
class certification under Rule 23(b)(3).” (Id. at 1.)
In opposition, plaintiffs contend that this Court decided “to certify the damages class
without limitation,” and that the Second Circuit’s opinion in In re Nassau County Strip Search
Cases, 461 F.3d 219, 231 (2d Cir. 2006) “made no mention of bifurcating the damages class, or
certifying the class for only some damages.” (Pls.’ Opp’n at 3.) Plaintiffs assert that the
“Court’s holding that class-wide damages may be determined and awarded for dignitary damages
is also applicable to other general damages such as emotional distress damages.” (Id. at 4.)
According to plaintiffs:
While the Court has [ ] on occasion expressed the view that “special
damages” may be excluded and pursued by individual plaintiffs, we
continue to contend that such “special damages” do not include the
garden-variety emotional distress which may be presumed to have
been experienced from the unlawful strip searches in this case . . . but
rather, that they refer to the more serious psychiatric injury that may
be claimed by a minority of class members who, for example, may
have required mental health treatment for psychological sequellae and
symptoms which go beyond garden-variety emotional distress, shame
and humiliation that flow naturally from being unlawfully strip
searched.
(Id. at 5.) Plaintiffs maintain that class members’ emotional distress that was “necessarily
produce[d]” by the “unlawful involuntary strip searches” performed in this case, “is compensable
in general damages on a class-wide basis.” (Id. at 8.)
II.
The Court Does not Consider Damages for So-Called “Garden-Variety” Emotional
Distress to be General Damages
Plaintiffs incorporate by reference numerous prior submissions in support of their
9
position on the present application. (See Pls.’ Opp’n at 1.) Among them is plaintiffs’ May 28,
2010 letter, which was submitted following a May 17, 2010 conference in order to “further
amplify our views” on the following two issues: “(1) whether the Court could treat the class
garden variety emotional damages within the rubric of general damages, and (2) whether garden
variety emotional damages are susceptible to resolution on a class basis without selecting
representative plaintiffs on a random sampling statistical basis.” (Pls.’ May 28, 2010 Letter at 1.)
With respect to the first issue, plaintiffs agreed with defendants “that garden variety emotional
distress damages actually suffered by the class should not be treated within the rubric of general
damages.” (Id. (emphases added).) Accordingly, plaintiffs requested that the Court “enter its
general damages verdict and that we should then proceed to phase 2 to determine what additional
award should be made to the class for garden-variety emotional distress damages.” (Id.)
Plaintiffs, however, clarified their view that “the ‘humiliation and mental suffering’
component . . . is an appropriate part of the general damages verdict upon which the Court [was
then] deliberating.” (Id.) Relying on Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004),
plaintiffs asserted that:
[E]motional damages (garden-variety or otherwise) actually suffered
by an individual plaintiff is separate from general damages. But (and
here is the confusing part) “humiliation and mental suffering” and
other emotional damages actually suffered by the individual is
different from the “humiliation and mental suffering” that may be
inferred from the loss of liberty inherent in the false imprisonment
itself, and it is the latter “humiliation and mental suffering” which
Kerman held is a legitimate part of general damages.
(Pls.’ May 28, 2010 Letter at 2 (emphases in the original).) According to plaintiffs, therefore:
Garden variety emotional damages actually suffered by an individual
class member forced to endure the unlawful strip search at the Nassau
10
County Jail may not be treated within the rubric of general damages.
But the humiliation and mental suffering that may be presumed to
arise in a reasonable person subjected to such strip search is an
integral component of general damages which may be awarded
without proof.
(Id. at 4 (emphases omitted).)
To the extent that plaintiffs maintain that a general damages award should include an
element of “‘humiliation and mental suffering’ that may be inferred from the loss of liberty
inherent in the false imprisonment itself” (Pls.’ May 28, 2010 Letter at 2), the Court has already
considered and taken into account this claim in rendering the $500 per strip search award. The
above-quoted section of plaintiffs’ May 28, 2010 letter suggests that they are of the impression
that the damages trial dealt solely with compensating class members for the “loss of liberty”
inherent in each strip search. As the Court made clear in its September 22, 2010 decision,
however, such a loss of liberty, while implicated, was not the primary thrust of the wrong for
which damages were awarded. Rather, the Court found that “[e]ach class member suffered the
same injury to human dignity inherent in the loss of the right to determine which individual or
individuals may visually inspect that member[’s] naked body, particularly his or her sexual
organs, and under what circumstances.” (Sept. 22, 2010 Mem. & Order at 39; see also Mar. 27,
2008 Mem. & Order at 10-11 (noting class members are entitled to general damages to
compensate for “serious intrusion” and “impairment of privacy” caused by unlawful strip search)
(internal quotation marks omitted).) Thus, the $500 per strip search award necessarily included
compensation for this form of presumed emotional distress damages. Plaintiffs cannot recover a
second time for the same injury. Individuals claiming to have sustained emotional distress
beyond those which have been presumed and, as such, included within the general damages
11
award, may seek special damages but not, as plaintiffs urge, a duplicate award under a further
subset of general damages. Simply put, the Court rejects the proposition that there is a
meaningful distinction between plaintiffs’ presumed “garden-variety” emotional distress on the
one hand, and the shared emotional injuries presumed to flow from the affront to human dignity
necessarily caused by being strip searched on the other. For present purposes, the concepts are
essentially the same.
In urging a contrary conclusion, viz. that the scope of general damages should be enlarged
to include the “garden-variety” emotional distress, shame, and humiliation that flow naturally
from being unlawfully strip searched (see Pls.’ Opp’n at 1, 5), plaintiffs cite the following
passage of the Court’s March 27, 2008 Memorandum & Order extending class certification to
include general damages:
The Second Circuit has recognized, for example, that class-wide
rather than individual assessments of monetary relief may sometimes
be appropriate in class discrimination cases. See Robinson v. MetroNorth, 267 F.3d 147, 161 n.6 (2d Cir. 2001). See also Berger v. Iron
Workers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1138 (D.C.
Cir. 1999) (holding that it was appropriate to presume that as a result
of race discrimination those class members who were experienced
rodmen suffered emotional distress by having to subject themselves
to an unnecessary training program for up to two years before being
permitted to take union entrance exam and therefore damages award
was supported and appropriate).
(Pls.’ Opp’n at 4 (citing Mar. 27, 2008 Mem. & Order at 11-12).) Plaintiffs contend that “[b]y
citing Robinson and Berger’s holding that emotional distress damages could be presumed when
class members were forced to endure racial discrimination, this Court effectively recognized that
general damages for emotional distress could be awarded on a class-wide basis.” (Id.)
12
The Court’s citation to Robinson5 and it brief parenthetical description of Berger6 are not,
plaintiffs’ protestations to the contrary, incompatible with the Court’s rejection of plaintiffs’
arguments. The remainder of the passage from the March 27, 2008 Memorandum & Order,
partially cited by plaintiffs, reads as follows:
Here, class members were aggrieved by a single, admittedly unlawful
policy and there is a strong commonality between the strip search
violation and the harm. There is no reason that a jury in this case,
hearing the procedures used by Defendants for strip searches together
with the testimony of a number of class members as to the
circumstances of actual searches, could not determine an amount of
general damages awardable to each member of the class.
5
Robinson involved a motion for Rule 23(b)(2) class certification of a claim
“seeking both injunctive relief and non-incidental monetary damages.” 267 F.3d at 164. When
discussing plaintiffs’ Title VII disparate impact claims, the Second Circuit stated that if the
plaintiffs established a statutory violation, “the court may order prospective class-wide injunctive
relief.” Id. at 161. The Circuit continued: “Still, in order for an employee to obtain individual
relief (e.g., back or front pay), an inquiry similar to the remedial stage of a pattern-or-practice
disparate treatment claim is generally required.” Id. In its March 27, 2008 Memorandum &
Order, this Court cited to a footnote in Robinson in which the Second Circuit stated: “Both
parties correctly note that some cases may require class-wide, rather than individualized
assessments of monetary relief.” Id. at 161 n.6 (collecting cases, none of which issued a classwide award for emotional distress damages). The Second Circuit further noted, however, “this is
the exception, not the rule: Where possible, ‘there should be . . . a determination on an individual
basis as to which class members are entitled to [recovery] and the amount of such recovery.” Id.
(quoting Shipes v. Trinity Indus., 987 F.2d 311, 318 (5th Cir. 1993)).
6
In Berger, a class of African-American ironworkers brought a race discrimination
action under § 1981 and Title VII against their local and international unions. The trial court
bifurcated liability and damages, and plaintiffs succeeded in proving liability at trial. Berger,
170 F.3d at 1116. The case was then referred to a Special Master who held individual trials for
each class member and then issued a report recommending, inter alia, compensatory damages
awards to the 18 remaining class members who had not already settled with the defendants. Id.
at 1117, 1138. The court found that “courts may properly infer emotional distress from factual
circumstances – and award damages to compensate for that distress – but may not presume
damages from a bare violation of a statutory or constitutional right.” Id. at 1138. The court then
found that the “awards in the instant case are supported by the proper kind of inference.” Id.
Importantly, those awards were rendered after individual trials held for each class member – not
on a class-wide basis. See id. (noting the awards ranged from $2,500 to $25,000).
13
Concededly, care would have to be taken to ensure that the amount
awarded for general damages excludes all elements of special
damages that individual class members might then pursue. But the
task, albeit difficult, is doable.
(Mar. 27, 2008 Mem. & Order at 12-13 (emphasis added).) The Court has always considered
“special damages” to include emotional distress damages beyond those that are inseparable from
the injury to human dignity, as well as more severe psychological damage, which might require
expert testimony to prove.
Plaintiffs further contend that although “Defendants argue that emotional distress is a
special damage, [ ] this is not correct in the context of an unconstitutional strip search.” (Pls.’
Opp’n at 6.) Plaintiffs cite a line of cases, purportedly in which “courts have repeatedly
recognized that general damages are appropriately awarded in tort cases in which emotional
distress is a foreseeable harm of the wrongful act.” (Id. (collecting cases).) While, as a general
proposition, that may be true, not one of the cases cited in plaintiffs’ legal memorandum involves
either a class action or an unconstitutional strip search, and the cases are not otherwise instructive
for present purposes. (See id. at 6-7.)
III.
Damages for Emotional Distress Beyond That Which is Inseparable From the Injury
to Human Dignity Must be Proven by Each Individual Claiming Them and Cannot be
Awarded to the Class as a Whole
Defendants assert that “[t]he class should be decertified going forward now that the
common general damages upon which the Court based class certification have been determined.”
(Defs.’ Mem. at 2 (citing Fed. R. Civ. P. 23(c)(1)(C) (“An order that grants . . . class certification
may be altered or amended before final judgment.”)).) Plaintiffs oppose this request and contend
that decertification “is contrary to the purpose the class action mechanism, which aggregates
14
claims so that it is as a practical matter reasonable to bring these claims for which the recovery is
likely to be modest.” (Pls.’ Opp’n at 13.)
A.
Class Certification was Never Extended to the Issue of Special Damages,
Including Emotional Distress Damages Beyond Those Which are Inseparable
From the Injury to Human Dignity
As an initial matter, as defendants point out, the record of this Court’s written decisions
does not establish that class certification extends to special damages. (See Defs.’ Mem. at 2.) In
its March 27, 2008 Memorandum & Order, the Court noted in its conclusion that “Plaintiffs are
not asking this Court to select a particular damages model or to certify any subclasses for special
damages as to do so would be ‘premature.’ Thus, the Court has neither selected nor foreclosed
any particular damages model; nor has it gone beyond determining that the predominancy of
general damages warrants extending class certification from solely liability to liability and
[general] damages.” (Mar. 27, 2008 Mem. & Order at 13-14 (emphasis added).) Approximately
one year later, this Court noted that “consistent with the parties’ presentations, [it] has thus far
only addressed general damage class certification; at the conclusion of this phase of the
proceeding, the court and the parties will discuss what further damage subclasses should be
certified, if any, and how the remainder of the case will be resolved.” (Mar. 16, 2009 Mem. &
Order at 7 n.2 (emphasis added).)
As is clear from the above-cited Memoranda & Orders, the Court has not extended class
certification beyond liability and general damages. At this point, as discussed below, having
established defendants’ liability and awarded general damages on a class-wide basis, and
cognizant that the only claims remaining in this action are for class members’ emotional distress
beyond that which is inseparable from the injury to human dignity (or more severe psychological
15
injuries), the Court finds that questions of law or fact common to the class no longer predominate
over questions affecting only individual class members.
B.
Emotional Distress Damages Beyond Those Which are Inseparable From the
Injury to Human Dignity may not be Awarded on a Class-Wide Basis
The crux of plaintiffs’ argument is set forth in the following portion of plaintiffs’
memorandum in opposition to the pending motion:
Although defendants cite to strip search cases in which the courts said
that damages may need to be, or should be, considered on an
individual basis per class member, those cases are properly viewed as
the decidedly minority view. More recently than most of the cases
cited by defendants, courts have had no difficulty certifying strip
search class actions without any limitations regarding the damages.
(Pls.’ Opp’n at 9 (internal citation omitted).)
The fundamental flaw in plaintiffs’ argument is their apparent equation of (1) courts’
unwillingness to deny class certification when questions of fact common to the class predominate
over individualized damages issue with (2) the notion that those courts have held that emotional
distress damages can be awarded on a class-wide basis. The case law cited by plaintiffs,
however, does not permit the Court to make the same inferential leap. In many of the cases cited
by plaintiffs, discussed infra, courts did indeed grant class certification motions despite the
presence of individualized issues regarding damages. In none of those cases, however, did courts
hold – or even imply – that when they reached the damages phase of the proceedings they
intended to award damages for class members’ emotional distress claims on a class-wide basis.
For instance, plaintiffs rely heavily on McBean v. City of New York, 260 F.R.D. 120
(S.D.N.Y. 2009) as an example of a court refusing to deny class certification despite “the
presence of emotional distress damages claims.” (Pls.’ Opp’n at 9.) Plaintiffs are indeed correct
16
in this assessment. In McBean, a putative class action was commenced against defendants for
“federal civil rights violations arising from” defendants’ blanket strip search policy. McBean,
260 F.R.D. at 123. The parties’ settlement negotiations “yielded a proposed settlement class that
differed from the one suggested in plaintiffs’ amended complaint” in that it “specifically
excluded” a certain group of pre-trial detainees who were arraigned on narcotics- and weaponsrelated charges. See id. at 125. Intervenor-plaintiffs then sought to certify as a class those
plaintiffs who were excluded from the settlement class. Id. at 123-24. After noting that “[o]n
occasion, courts have declined to certify broad classes of individuals subject to blanket stripsearch policies because of the role the particular circumstances of each search might play,
whether as to liability, class membership, or individual damages claims,” the court noted that
“the availability of individual defenses as to liability is substantially limited because . . . the
defendants do not dispute that the searches at issue took place pursuant to a policy that required
every detainee to be searched irrespective of any particular factor . . . .” Id. at 138. Thus, “[t]he
predominance of the central legal and factual issues common to all class members [ ] is in no
way threatened by the possibility of hypothetical defenses.” Id. The court granted the motion,
and certified the class under Rule 23(b)(3). Id. at 138-39.
After a lengthy recitation of a portion of the court’s analysis in McBean, plaintiffs assert
that “defendants’ argument that legal precedent ‘strongly supports’ their argument that the
general emotional distress damages claims cannot be tried on a class action basis is simply
wrong.” (Pls.’ Opp’n at 10 (internal citation omitted).) The Court does not believe that this
conclusion logically flows from the holding in McBean. Importantly, in that case, there was
absolutely no discussion by the court of the existence of class members’ emotional distress
17
damages, or the manner in which the court intended to deal with class members’ claims for such
damages. The focus of the court’s decision was on the limited availability of individual defenses
to liability and the fact that “no evidentiary hearings will be required to determine class
membership in the first instance” – not the presence or absence of individual issues with respect
to damages. McBean 260 F.R.D. at 138. The fact that the court in McBean granted class
certification under Rule 23(b)(3) without discussing the impact of emotional distress claims does
not mean that the court held (or even contemplated) that an award of damages for emotional
distress was ultimately going to be made on a class-wide basis.7
Plaintiffs also cite numerous cases for the proposition that “[m]ost courts within this
Circuit have certified stip search class actions without any limitation on the damages class, and
without subsequent decertification.” (Pls.’ Opp’n at 9.) The Court has reviewed the docket
sheets for each of the cited cases, however, and none of those cases ever arrived at the procedural
posture faced by this Court, and thus never addressed the issue of individual damages. In
Mitchell v. County of Clinton, 2007 WL 1988716 (N.D.N.Y. July 5, 2007), for example, the court
granted plaintiffs’ motion for class certification and found that “[t]he questions of whether the
alleged [blanket strip search] policy and practice existed, whether they were unconstitutional, and
whether defendants are liable are subject to generalized proof and are common to all potential
class members.” Id. at *4. The court further noted that “[a]n argument may be made that the
class should be certified only on the issue of liability, because the issue of damages is likely to
7
According to the docket sheet in McBean v. City of New York, 02 CV 5426
(S.D.N.Y.), a stipulation of settlement was submitted for court approval a few months after the
August 2009 decision cited above, and that settlement was approved by the court by Order dated
October 22, 2010.
18
involve individualized evidence.” Id. at *5. The court then cited the Second Circuit’s statement
that various “management tools” are available to enable a district court to “address any
individualized damages issues that might arise in a class action,” including:
(1) bifurcating liability and damages trials with the same or different
juries; (2) appointing a magistrate judge or special master to preside
over individual damages proceedings; (3) decertifying the class after
the liability trial and providing notice to class members concerning
how they may proceed to prove damages; (4) creating subclasses; or
(5) altering or amending the class.
Id. (quoting In re Visa Check/Master Money Antitrust Litig., 280 F.3d 124, 141 (2d Cir. 2001)).
The court concluded that because it “has the flexibility to deal with management issues as they
arise, . . . denial of certification regarding damages or other issues is not warranted.” Id.
According to the Northern District of New York docket sheet, however, the case subsequently
settled before liability was even determined. Clearly, then, the Mitchell court never needed to
determine how to “deal with management issues” regarding class members’ individual claims for
emotional distress damages, and is of little assistance here.
Likewise, in Pritchard v. County of Erie, 269 F.R.D. 213, 219 (W.D.N.Y. 2010), the
court granted plaintiffs’ Rule 23(b)(3) motion for certification, “concluding that the questions . . .
regarding the existence of the alleged strip search policies . . ., the constitutionality of those
practices and policies, and the ultimate liability of the County . . ., are common to all potential
class members and are subject to generalized, class-wide proof.” The court did not discuss how
it intended to handle any issues subject to “individualized proof,” see id., and a review of the
Western District of New York docket sheet shows that, as of the date of this Order, the case has
yet to proceed to the trial phase.
19
Finally, in Williams v. County of Niagra, 2008 WL 4501918, at *4 (W.D.N.Y. Sept. 29,
2008), the court granted a motion for class certification under Rule 23(b)(3) because the
existence of the alleged strip search policy, the question of the policy’s constitutionality, and the
defendants’ liability were “subject to generalized proof and are common to all potential class
members.” The court found, without any specific discussion about individual claims for
emotional distress damages, that “[t]hese issues predominate over those issues that are subject to
individualized proof.” Id. As of the date of this Order, summary judgment motions on the issue
of liability remained pending before the district court.
Thus, as is clear from the authorities cited above, plaintiffs are correct that several courts
within this Circuit have certified Rule 23(b)(3) classes in strip search cases despite the presence
of individualized issues regarding damages. Indeed, in this case the Court certified the class
action for liability purposes as well as general damages. Ultimately, however, the Court does not
find that any of the cases cited by plaintiffs support their request for emotional distress damages
to be awarded on a class-wide basis. As described below, such claims require individualized
proof that must be presented by each class member separately.
C.
Class Members’ Remaining Claims for Emotional Distress Damages Must be
Tried on an Individual Basis
1.
The Relevant Case Law Does not Support a Class-Wide Award
To partially reiterate, plaintiffs do not cite any cases that directly deal with the issue now
confronting this Court: liability has been established, general damages have been awarded on a
class-wide basis, and all that remains are individual class members’ claims for special damages.
(See generally Pls.’ Opp’n at 11-12.) As defendants have noted, however, in several cases within
20
this Circuit trial courts have indicated that, should they reach this late stage of a strip search class
litigation, class members wishing to pursue claims for emotional distress damages would have to
proceed on their own in individual hearings. In particular, the Court finds two cases decided in
the Southern District of New York by Judge Colleen McMahon to be helpful on this point.
In Dodge v. County of Orange, 226 F.R.D. 177 (S.D.N.Y. 2005), two “consolidated
actions, brought as class actions, challenged the admissions procedures for newly-arrived inmates
at the Orange County Correctional Facility.”8 Id. at 179. Plaintiffs moved to certify a class
pursuant to Rule 23(b)(3) and defendants opposed, contending that the case “bristle[d]” with
“individual issues.” Id. at 182. Judge McMahon found, however, that none of those individual
issues went to defendants’ liability; rather, an issue common to the class was the existence of a
blanket strip search policy. See id. at 180. When the court turned to damages, however, it found
it “clear that individual issues predominate” since “not all arriving inmates will have suffered in
the same way or to the same extent.” Id. at 182. Ultimately, the court determined that “[b]ecause
common questions predominate on the issues of liability but [ ] individualized issues underlie
any award of damages to class members, I am bifurcating the liability and remedy phases of these
actions and I certify classes only on the issue of liability . . . .” Id. at 184. The Dodge court made
clear its intention that “the issue of damages, if it cannot be settled, will be litigated before a
judge and a jury on a case-by-case basis, and [ ] different members of the class may receive
8
“The Dodge plaintiffs [sought] to represent a class consisting of all persons
accused of misdemeanors who were strip searched upon their initial arrival at OCCF from
January 31, 1999 through August 6, 2002. The Rango plaintiffs [sought] to represent a class
consisting of all persons accused of felonies who were strip searched upon their arrival at OCCF
during the same period.” Dodge, 226 F.R.D. at 179.
21
different amounts of damages as a result.” Id. at 186.9
In Maneely v. City of Newburgh, 208 F.R.D. 69, 71 (S.D.N.Y. 2002), plaintiffs
challenged a strip-search policy and moved for class certification under Rule 23(b)(3). Judge
McMahon found that there was “a common issue at the core of this case – whether defendants
maintained an unconstitutional blanket strip search policy during the class period,” and although
“in this case each plaintiff has a unique situation with relation to damages issues,” the court
found “it would be improper to let manageability concerns overwhelm the predominance
decision.” Id. at 77-78. Therefore, the court certified a class as to the issue of liability only and
stated that if the class prevailed on liability “then individual plaintiffs can come forward to
litigate, in individual suits, the issue of whether their rights were violated and whether they
suffered damages.” Id. at 79.10
Although Judge McMahon did not squarely address the issues currently faced by this
Court, her analyses in Dodge and Maneely are particularly helpful with respect to this Court’s
determination of the appropriate manner in which to proceed now that it is faced solely with the
question of whether and how to determine class members’ individual damages for emotional
distress beyond those which are inseparable from the injury to human dignity. Plaintiffs note that
these cases “involve the views of one judge, Judge McMahon, who ruled in each of the cases and
encouraged the minority view that emotional distress damages precluded damages class
9
According to the docket sheet in Dodge v. County of Orange, 02 CV 769
(S.D.N.Y.), the parties in both the Dodge and Rango actions reached settlement shortly after the
class certification decision was issued.
10
According to the docket sheet for Maneely v. City of Newburgh, 01 CV 2600
(S.D.N.Y.), the case settled and was dismissed before any determination as to liability was made.
22
certification.” (Pls.’ Opp’n at 17.) The Court does not find the fact that these decisions were
both issued by Judge McMahon to have much bearing, one way or another, on the assistance they
provide for present purposes. The Court concludes, after reviewing each of these cases, that the
rationale set forth therein is sound. Moreover, plaintiffs base their claim that these cases espouse
the “minority view that emotional distress damages preclude[] class certification” solely on their
reading of McBean. (See id.) As discussed above, however, that case does not ultimately
support plaintiffs’ advocacy of a class-wide award for emotional distress damages.
Several district courts outside of our Circuit, in certifying classes of plaintiffs challenging
the constitutionality of various strip search policies, have also addressed the manner in which
they intend to deal with the individualized damages issues that may arise. Importantly, while
each of these cases stand for the proposition that the presence of such individualized damages
issues will not preclude class certification, none of the courts involved unconditionally extended
certification of these classes to cover class members’ claims for individual damages. In fact,
most courts put off the question, citing the various “management issues” at their disposal,
including potential decertification. See, e.g., Wilson v. Cnty. of Gloucester, 256 F.R.D. 479, 489
& n.15 (D.N.J. 2009) (certifying Rule 23(b)(3) class challenging defendant’s strip search policy
and rejecting defendant’s argument that because “thousands of damages mini-trials would be
necessary if Defendants are found liable[,] . . . individual damages issues would predominate”;
noting the existence of “a number of management tools available to a district court to address any
individualized damages issues”); Florence v. Bd. of Chosen Freeholders of Cnty of Burlington,
2008 WL 800970, at *13 (D.N.J. Mar. 20, 2008) (certifying class of plaintiffs challenging
constitutionality of defendant’s strip search policy “notwithstanding the possibility that an
23
individualized calculation of damages may be necessary,” and noting “several ways of dealing
with possible individualized damages issues” including “decertifying the class after the liability
trial and providing notice to class members concerning how they may proceed to prove
damages”); Johns v. DeLeonandis, 145 F.R.D. 480, 484-85 (N.D.Ill. 1992) (certifying Rule
23(b)(3) class and subclass of plaintiffs seeking money damages for alleged constitutional
violations stemming from unlawful strip search; “[t]hough the members of the subclass may have
different damages due to the varying injury done to them during the strip search, the extent of
damages is not an issue at this stage of the proceeding”) (emphasis added).
2.
Class Members’ Remaining Claims for Emotional Distress Damages
are Inherently Individualized and Must be Proven on a Case-by-Case
Basis
As the Sixth Circuit has aptly stated, “[a]lthough many common issues of fact and law
will be capable of resolution on a group basis, individual particularized damages still must be
proved on an individual basis.” Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1200 (6th Cir.
1988) (noting that, in mass tort context, class action procedure allowed the court to determine the
defendants’ liability “without regard to the individual components of each plaintiff’s injuries,”
but ultimately, “it became the responsibility of each individual plaintiff to show that his or her
specific injuries or damages” were caused by the defendants’ conduct). This is true both with
respect to establishing a causal link between defendants’ conduct and the alleged personal
emotional distress injury, see id. at 1206 (“[D]amages for mental distress generally are not
recoverable where the connection between the anxiety and the existing injury is either too remote
or tenuous.”), and proving the nature, extent, severity and duration of the alleged emotional
distress suffered by the individual class member, see In re Three Mile Island Litig., 87 F.R.D.
24
433, 441, 442 n.16 (M.D.Pa. 1980) (“[C]laims for emotional distress and resulting physical
injury are diverse and personal . . . [Additionally,] the idiosyncratic nature of emotional distress
claims makes them as unsuitable for class certification as the physical injury/emotional distress
claims discussed herein.”)
As noted by Judge McMahon in Dodge, the damages suffered by members of a class
subjected to unlawful strip searches are inherently individualized:
Even if the plaintiff class members were strip searched illegally
pursuant to a uniform policy, not all arriving inmates will have
suffered in the same way or to the same extent. Some may have
suffered physical damages as a result of a strip search. Some may
have been severely psychologically damages. Some, perhaps many,
will not have found the experience terribly degrading.
Dodge, 226 F.R.D. at 182-83. The Court agrees with this assessment. For example, a modest
grandmother who had never before been subjected to the undoubtedly humiliating experience of
being forced to expose her naked body to a corrections officer during a strip search would likely
have suffered a more significant degree of emotional distress than a “repeat offender” who, as no
stranger to the correctional system, may have been strip searched hundreds of times in the past
and did not find the procedure or attendant exposure of various body parts to strangers to be
“terribly degrading.” See id.
3.
Damages for any Remaining Claims for Emotional Distress Cannot be
Awarded to the Class Pursuant to any Sampling Method
During the October 1, 2010 status conference, the Court raised the possibility of
determining individual special damages by using testimony and/or evidence taken from a
representative sample of class members who would “be selected by [a] methodology which has
some type of scientific acceptance.” (See Tr. at 47.) In response, as detailed below, plaintiffs
25
advocate the use of some type of sampling method, but oppose random sampling or sampling
based on any other methodology that would produce a representative result from the statistical
universe. (Tr. at 34-35, 37.)
a.
Plaintiffs’ Proposal of a Presumptive Common Pain and Suffering
Award for Each Class Member
First, Plaintiffs assert that Langley v. Coughlin, 715 F. Supp. 522 (S.D.N.Y. 1989)
“teaches that the Court clearly can (and we submit, should) determine garden-variety emotional
distress damages on a class basis in a phase 2 trial, and add that award to the general damages
award, before any claim forms are distributed.” (Pls.’ May 28, 2010 Letter at 6.) According to
plaintiffs, “[i]n determining the class’s garden variety emotional distress damages, the Court has
wide discretion to fashion an award that, while imprecise, does substantial justice.” (Id. at 7.)
Plaintiffs assert that “based on [the testimony of] a sample of class members,” the Court can
establish “a presumptive common pain and suffering award for each class member ‘and then
permit both plaintiffs and defendants to seek a variation – either up of down – for specific class
members based upon a showing of unique individual circumstances.’” (Id. at 6 (quoting
Langley, 715 F. Supp. at 558).)
In Langley, Judge Leonard B. Sand adopted a report and recommendation issued by
Magistrate Judge Michael H. Dolinger and granted the plaintiffs’ motion for class certification.
715 F. Supp. at 530 (“[W]e are satisfied that plaintiffs would prevail on the class certification
issue even if it were entirely their burden to sustain such certification de novo.”) In that case, the
plaintiffs challenged the constitutionality of the conditions and practices in defendants’
correctional facility. In his report and recommendation, Judge Dolinger found there were
26
“‘questions of law or fact common to the class,’ and indeed to each of the subclasses” regarding
the plaintiffs’ “conditions-of-confinement claims” as well as their claims that the defendants
failed to properly treat inmates with serious mental ailments. Id. at 555. The defendants argued
against class certification, asserting that “damages for conditions of confinement must be based
on the emotional or other injury to the individual as a result of the conditions, and that this
necessitates an individualized inmate-by-inmate inquiry concerning the extent of injury resulting
from any given set of unconstitutional conditions.” Id. at 557. Judge Dolinger was not
persuaded by this argument and reasoned that the “type of proof of the nature and severity of
conditions [at the facility] over an extended period is obviously best done in a single
proceeding.” Id. at 558.
In discussing the “task of damage determination,” Judge Dolinger stated that “it bears
emphasis that courts have been perfectly willing, based simply on proof of objective conditions in
a prison, to award per diem damages to an inmate unconstitutionally confined. There is no
reason to conclude that a similar procedure cannot be used here based upon the Court’s classwide findings that conditions [in the facility] for specified time periods (a) violated constitutional
norms and (b) were of such severity as to merit the inference that inmates confined on those
particular days were injured to an extent equivalent to a specific sum for each such day.” Id. at
558 (internal citations omitted, emphasis added). The Court notes parenthetically that, at this
point, it has already awarded general damages in a similar manner; based on the objective
evidence set forth regarding the strip search procedures conducted pursuant to defendants’
blanket strip search policy, it has awarded $500 per strip search.
Judge Dolinger suggested an approach the trial court might employ to award damages:
27
“establishing a presumptive per diem award . . . and then permitting both plaintiffs and
defendants to seek a variation – either up or down – for specific class members based upon a
showing of unique individual circumstances.” Id. Judge Dolinger opined that few claimants
would seek a variation and that “in any event separate damage proceedings are not inconsistent
with class certification when the bulk of the issues, at least insofar as they concern liability, can
be addressed in a single joint proceeding.” Id. at 558-59.
Plaintiffs emphasize the following passage from Langley:
It is true that such an approach involves a degree of inexactitude, but
that is entirely defensible. Compensation for pain and suffering –
whether physical or emotional – inevitably involves substantial
inexactitude, and thus it is not surprising that the federal courts have
countenanced the use of arbitrary but efficient across-the-board
measures of such suffering, even in non-class cases. See, e.g., MooreMcCormack Lines, Inc. v. Richardson, 295 F.2d 583, 587 (2d Cir.
1961), cert denied, 368 U.S. 989, 82 S.Ct. 606, 7 L.Ed.2d 526 (1962)
(assessing pain-and-suffering damages for eleven crewmen of
capsized ship at $150.00 per hour regardless of individual
circumstances and cause of death (if any), which varied from shark
bit to exposure to drowning). In class cases, the courts have found
still further justification for accepting some degree of imprecision in
damages awards, even for economic loss, if substantial justice is
done.
Id. at 558 (collecting cases).11 In the above-quoted passage, Judge Dolinger simply observed that
“federal courts have countenanced the use of [arguably] arbitrary but efficient across-the-board
measures” to award damages. See id. Overall, the Court does not find that the suggestions in
11
The cases collected by Langley dealt with awards of backpay – not emotional
distress damages. “[C]alculating the amount of backpay lost by members of the class because of
the employer’s discriminatory employment practices does not require individualized proof
because the aggregate amount of backpay does not depend on the individual circumstances of any
class member.” United States v. City of New York, 2011 WL 2680474 at *16 (E.D.N.Y. July 8,
2011).
28
Judge Dolinger’s report and recommendation to be persuasive as to the appropriateness of
establishing a presumptive common special damages award for each class member in this case.
The Court notes that plaintiffs have not cited any case, including Langley, that actually proceeded
in the manner currently suggested by plaintiffs.
Plaintiffs also cited Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2d Cir.
1961) during the October 1, 2010 status conference, and stated that in that case “damages were
fixed at $150 per hour of emotional distress damage, no matter what the circumstances were.
There was no random sampling in that case. It was just done on that basis.” (Tr. at 36.) In
Moore-McCormack, a non-class action case, the Second Circuit reviewed an appeal from the trial
court’s award of damages for seven personal injury claims and four wrongful death claims
stemming from the sinking of defendants’ vessel. 295 F.2d at 587. As compensation for pain
and suffering, the trial court awarded each claimant $300 for each hour that he was in the water
before his rescue or death. Id. While ultimately reducing the hourly figure from $300 to $150,
the Second Circuit did not disturb the trial court’s decision to award an hourly rate for emotional
distress damages. The dilemma facing the trial court in Moore-McCormack was that some of the
claimants died as a result of the ship’s sinking and so, obviously, the court did not have the
benefit of their individual testimony with respect to the pain and suffering they endured before
their deaths. Thus, the court used the individual testimony of each of the survivors to determine
a common award for pain and suffering for each hour between the time of the ship sank and the
time of each claimant’s demise or rescue.12 See id. (“We agree with the trial judge that there is
12
The trial court noted that “although the time when each [of the deceased
claimants] was last seen alive is known with reasonable certainty,” there was no evidence in the
record as to the exact time of their deaths. In re Moore-McCormack Lines, Inc., 184 F. Supp.
29
no way of differentiating between the suffering of any deceased or survivor and [so] the award
should be assessed on the same basis as to all.”).
Plaintiffs assert that Moore-McCormack supports the proposition that the testimony of a
sample of class members can be used to fashion a presumptive emotional distress damages award
for each class member, which may then be adjusted based on individual circumstances. This
assertion, however, is undercut by the profound factual distinctions between this case and MooreMcCormack. Moore-McCormack did not involve a class certified under Rule 23(b)(3) and the
hourly rate for pre-death or pre-rescue pain and suffering was based not on the testimony of a
sample of class members, but on the testimony of each surviving claimant. Moreover, the court
in Moore-McCormack made every effort to individualize each claimant’s award of emotional
distress damages. For instance, the application of the common hourly award was individualized
based on the number of hours each claimant was in the water before his death or rescue.
Moreover, when assessing pain and suffering awards to the survivors for the period that followed
their rescue, the lower court did not employ the hourly rate but awarded each claimant a different
amount based upon his testimony. See id. at 590, 591.
Overall, the Court does not find that Langley or Moore-McCormack support plaintiffs’
proposal that a fixed emotional distress damages award be awarded to each class member “based
upon the [non-randomly selected] sample of class members already selected by plaintiffs and
defendants.” (See Pls.’ May 28, 2010 Letter at 8.)
585, 590 (S.D.N.Y. 1960). Accordingly, the trial court’s “estimate [of] the time of death . . . is
that each deceased died one hour after he was last seen alive . . . .” Id.
30
b.
Plaintiffs’ Proposal of Non-Random Sampling
Plaintiffs also suggested that the Court select a sample of class members by permitting
both plaintiffs and defendants to identify a certain number of class members that would be most
favorable to their respective positions, which would result in a “mix” of class members that
would purportedly be “representative of the whole.” (Tr. at 38.) Plaintiffs cite to the procedure
employed by the trial court in Young v. County of Cook, 06 CV 552 (N.D.Ill.), which is,
according to plaintiffs, “the only strip search class action case in which, to our knowledge,
garden-variety strip search damages have actually been tried.” (Pls.’ May 28, 2010 Letter at 8.)
Plaintiffs assert that in Young, “no random sampling method was used, plaintiffs were permitted
to call whom they wished in three jury trials of eight class plaintiffs, subject to the proviso that if
a class member had testified at the liability trial, that class member should also testify in the
damages trial.” (Id.) The Court has reviewed the docket sheet for Young v. County of Cook, and
does not agree with plaintiffs’ characterization of the procedures employed in that matter.
In Young, the court certified two classes under Rule 23(b)(3): “(1) all males who were
subjected to a strip search and/or a visual body cavity search as new detainees at the Cook
County Jail on or after January 30, 2004 [Class I]; and (2) all persons charged only with
misdemeanor or lesser offenses not involving drugs or weapons who were subjected to a strip
search and/or a visual body cavity search as new detainees at the Cook County Jail on or after
January 30, 2004 [Class II].” (Mem. & Order, dated Apr. 25, 2007, Young Docket No. 92.)13
13
“Young Docket No. __” refers to docket entries on the electronic docket sheet for
Young v. County of Cook, 06 CV 552 (N.D.Ill.).
31
Subsequently, the defendants14 moved for summary judgment and the plaintiffs cross-moved for
partial summary judgment on the issue of liability. (See Mem. & Order, dated Apr. 2, 2009,
Young Docket No. 298.) These motions were each granted in part and denied in part; the court
granted “plaintiffs’ motion for summary judgment with respect to the claims by the Class II
members and the Fourth and Fourteenth Amendment claims of the Class I members for searches
that occurred prior to the installation of privacy screens . . . but otherwise denie[d] the motion.”
(Id. at 38.) A jury trial was held on the remaining liability issues and the jury returned a verdict
in favor of plaintiffs and against defendants. (See Minute Entry, dated Aug. 13, 2009,
Young Docket No. 426.)
The plaintiffs then moved for the appointment of a special master to oversee discovery in
the “damages phase of the proceedings.” (Pls.’ Mot. to Appoint Special Master at 1, dated Nov.
16, 2009, Young Docket No. 493.) The plaintiffs asserted that such discovery was necessary “to
begin the process needed to assess class-wide damages using statistical sampling – a process
which could avoid the need for individual damages adjudications.” (Id.) The plaintiffs noted
that “[g]iven the enormous transaction costs to make individual damages determinations in a
class of over 400,000 claims, Plaintiffs believe that using statistics is the most sensible
approach.” (Id. at 1 n.1.) The plaintiffs contended that a special master’s “oversight” was
necessary to enable the parties “to develop an acceptable statistical method,” otherwise the
parties faced the “highly undesirable result” of “a class wide judgment for liability only, followed
by the filing of from tens to hundreds of thousands of individual damages cases.” (Id. at 2
14
Cook County as well as Cook County Sheriff Michael Sheahan and Sheriff
employees (collectively, “Sheriff defendants”) were named as defendants in Young. Cook
County and the Sheriff defendants each moved separately for summary judgment.
32
(noting that special masters have “been used successfully in the class action context” and citing
Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767 (9th Cir. 1996)).)
After hearing the defendants’ objections, District Judge Matthew F. Kennelly denied the
plaintiffs’ motion without prejudice and set a date for a jury trial – apparently, the first of several
to be scheduled. (See Minute Entry, dated Dec. 3, 2009, Young Docket No. 499.) In a
subsequent order, Judge Kennelly clarified that the upcoming damages trials were not set “in
order to ascertain the damages of the class.” (Minute Entry, dated Dec. 11, 2009, Young Docket
No. 503.) Rather, “the purpose of the damages trials is to decide the damages of the individual
class members whose damages will be tried, to facilitate the entry of a final judgment on less
than all claims under Rule 54(b).” (Id. (emphasis added).) To that end, the court directed the
plaintiffs to “identify the plaintiffs whose damages cases will be tried,” and that such group
“should include” the “named members of the classes or portions of classes in whose favor
liability was determined via the summary judgment ruling,” as well as any class members who
testified during the liability trial. (Id.) After those damages cases were tried to verdict, the court
entered judgment on those individual claims that were “severed from the claims of the remainder
of the classes that have been certified in this case.” (Minute Entry, dated July 16, 2010, Young
Docket No. 606.) The case subsequently settled, and an order was issued granting final approval
of the class action settlement and final judgment on March 4, 2011. (See Young Docket No.
650.)
Based on this extensive review of the procedures used by the Northern District of Illinois
district court in Young, the Court finds that Young does not support plaintiffs’ position that the
Court should “conduct phase 2 proceedings to fix classwide damages for garden variety
33
emotional distress . . . based on the sample of class members already selected by plaintiffs and
defendants.” (Pls.’ May 28, 2010 Letter at 8.) Indeed, that was not the method employed by the
court in Young. Rather, Judge Kennelly severed the claims of several individual class members
from the rest of the class and tried their damages claims on an individual basis.15 Moreover, the
Court rejects plaintiffs’ request for non-statistical sampling as simply unsound: the Court cannot
fathom how the parties’ hand-selection of ten or twenty individuals would produce testimony that
is meaningfully representative or reflective of the experience of each individual member of a
17,000 member class.16
15
The Court notes that this approach would appear to have the attendant benefit of
facilitating settlement, in that it would give each party an idea of the verdict amounts possible.
Should both parties be interested in utilizing a similar approach with an aim at achieving
settlement of the entire matter, they should inform the Court within forty-five (45) days of the
date of this Order. To determine the viability of that approach, counsel for the parties are
directed to meet and confer within fifteen days of the date of this Order to see if such an
approach is likely to promote a settlement. The initial contact for this purpose shall be made by
Attorney Robert L. Herbst.
16
The Court has considered sua sponte whether some type of statistically significant
random sampling method could be utilized to determine emotional distress damages for
individual class members. Such an approach does not appear viable. The main support for such
an approach would stem from the Ninth Circuit’s decision in Hilao v. Estate of Ferdinand
Marcos, 103 F.3d 767, 771 (9th Cir. 1996), which involved a class action seeking damages based
upon human rights abuses committed by the Philippine military. In the compensatory damages
phase of the litigation, a statistically significant sample of the 9,541 claims were randomly
selected and information about the individual sample claims was used to determine
compensatory awards to the sub-classes of remaining class members. See id. at 783. The Ninth
Circuit ultimately held the “district court’s methodology” was “unorthodox” but was “justified by
the extraordinarily unusual nature of this case.” Id. at 786.
In a strong dissent, Circuit Judge Rymer disagreed, emphasizing that “[e]ven in the
context of a class action, individual causation and individual damages must still be proved
individually.” Id. Several courts have raised serious questions about the Ninth Circuit’s
conclusions in Hilao, and have agreed instead with the sentiments expressed in Judge Rymer’s
dissenting opinion. See, e.g., Cimino v. Raymark Indus., Inc., 151 F.3d 297, 319 (5th Cir. 1998)
(“Finally, we find ourselves in agreement with the thrust of the dissenting opinion [in Hilao].”);
In re Fireboard Corporation, 893 F.2d 706, 707 (5th Cir. 1990) (expressing a “profound
34
4.
Despite Practical Litigation Concerns, Relevant Case Law Supports
Resolving Emotional Distress Claims on an Individual Basis
The Court’s research has uncovered a plethora of authority – in the context of mass tort
litigation, toxic tort litigation, and products liability actions – that supports its conclusion that
claims for class members’ emotional distress damages must be disposed of an individual basis.
“Class certification decisions in mass tort cases offer additional guidance in analyzing the
predominance of common questions over individual issues in a case in which class members
have suffered physical injuries,” Presbyterian Church of Sudan, 226 F.R.D. at 474, and the Court
finds those cases helpful here. See, e.g., Mejdrech v. Met-Coil Sys Corp., 319 F.3d 910, 911 (7th
Cir. 2003) (“If there are genuinely common issues, issues identical across all the claimants,
issues moreover the accuracy of the resolution of which is unlikely to be enhanced by repeated
proceedings, then it makes good sense, especially when the class is large, to resolve those issues
in one fell swoop while leaving the remaining, claimant-specific issues to individual follow-up
proceedings.”) (emphasis added); Sterling, 855 F.2d at 1197 (affirming class certification in
mass toxic tort case when “single major issue distinguishing the class members is the nature and
amount of damages,” but noting that “individual members of the class still will be required to
submit evidence concerning their particularized damage claims in subsequent proceedings”);
Presbyterian Church of Sudan, 226 F.R.D. at 485 (declining to certify class of plaintiffs alleging
they were victims of genocide and crimes against humanity when the “core question” of “whether
disquiet” with trial court’s approach in managing litigation of 3,031 asbestos cases, when only
“certain representative cases” would be tried on the issues of liability and damages to a jury); The
Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456 (S.D.N.Y. 2005) (“The
dissent in Hilao was the better reasoned decision and identified the very problems that infect this
application for certification.”).
35
the suffering endured by each putative class member can be attributed to the defendants . . . is
fundamentally an individual question.”); In re “Agent Orange” Prod. Liab. Litig., 100 F.R.D.
718, 724 (E.D.N.Y. 1983) (finding issues of “general” causation could be determined on a classwide basis, while “specific” causation could be determined in subsequent individual trials), aff’d,
818 F.2d 145 (2d Cir. 1987); In re Three Mile Island Litig., 87 F.R.D. 433, 441-42 (M.D.Pa.
1980) (declining to certify class claiming damages for “emotional distress and resulting physical
injury” following nuclear reactor incident because “damages will have to be assessed on a
plaintiff-by-plaintiff basis, so too will the causes of the injuries alleged”).
In Watson v. Shell Oil Company, 979 F.2d 1014 (5th Cir. 1992), for example, the Fifth
Circuit affirmed certification of a class of 18,000 plaintiffs suing defendants in connection with
an explosion at an oil refinery which caused “extensive damages both on the plant and in the
surrounding communities.” Id. at 1016-17. The Circuit also affirmed the trial plan, which called
for trial to proceed in four phases, with a jury to determine “common issues of liability” in phase
one. Id. at 1018. Of particular relevance here is phase three, which called for a different jury to
“resolve issues unique to each plaintiff’s compensatory damage claims, e.g. injury, causation, and
quantum.” Id. Phase three “call[ed] for trials in waves of five” and the trial court anticipated
that several waves of trials would result in a “reasonable judgment value for each category of
claims” that would “facilitate settlement.” Id. at 1018. The Circuit affirmed this trial plan, with
the proviso that the phase three trials could not proceed in a manner that “altered or diminished”
federal rules of evidence or procedure. Id.
Plaintiffs argue that any failure to certify class members for the purpose of seeking
special damages is simply impractical: “If the class were decertified, and only several hundred
36
rather than a few thousand class members brought their emotional distress claims to Your Honor
for trial as related cases, what else would this Court be available to do for the next 11 years?”
(Pls.’ Opp’n at 14.) Plaintiffs’ concern, while not ill-founded, is also not new – countless courts
faced with the task of determining individual damages claims in the context of complex mass
litigation scenarios have faced similar dilemmas. The Fifth Circuit, in recognizing the strain that
asbestos mass litigation placed on the federal courts, made the following comments:
We are told that Phase II [involving trying a sample of individual
claims and then extrapolating a class-wide compensatory damages
award] is the only realistic way of trying these cases; that the
difficulties faced by the courts as well as the rights of the class
members to have their cases tried cry powerfully for innovation and
judicial creativity. The arguments are compelling, but they are better
addressed to the representative branches – Congress and the State
Legislature. The Judicial Branch can offer the trial of lawsuits. It has
no power or competence to do more. We are persuaded on reflection
that the procedures here called for comprise something other than a
trial within our authority.
In re Fireboard, 893 F.2d at 712; see also Watson, 979 F.2d at 1018 (noting that the litigation,
“involving claims by more than 18,000 plaintiffs, starkly presents the nearly insurmountable
problems of balancing procedural fairness with judicial efficiency in the management of mass
tort litigation”).
The Court has carefully considered the direction this case must take, largely unaided by
any case law or other legal authority directly on point – a testament to the fact that we are
traversing largely uncharted waters. On the one hand, the Court could exercise its discretion to
hold (or appoint one or more Special Masters to hold) a series of “mini-trials” to determine the
emotional distress damages suffered by each individual strip search victim. This would arguably
benefit those individuals by permitting them to litigate their special damages claims without
37
having to pay a filing fee to commence their own action in federal court, and would protect the
District from a potential inundation of individual claims. On the other hand, the Court is
doubtful that the process of holding potentially hundreds if not thousands of mini-trials, or
appointing one or more Special Masters to do so, would be any more efficient than requiring
former class members to commence their own individual actions should they elect to pursue
claims for special damages.17 Indeed, any strip search victim seeking special damages would
have the benefit of a finding of liability on the part of the County and would need only present
evidence as to their emotional distress damages. Plaintiffs’ counsel has represented that the
majority of these individuals suffered only from what plaintiffs refer to as “garden-variety”
emotional distress, for which expert testimony is generally not necessary to establish.
IV.
Remaining Issues
There remain a number of “loose ends” that must be resolved before a final judgment can
be entered. This Memorandum & Order contains the Court’s decision, as set forth at length
above, that it will not extend class certification to permit plaintiffs to pursue a class-wide award
to compensate for what plaintiffs refer to as “garden-variety” emotional distress damages. The
remainder of this Memorandum & Order delineates the manner in which the Court intends to
proceed. Any objections to the following must be submitted to the Court, in writing, within
forty-five (45) days of the date of this Order. Additionally, the parties are directed to bring to the
Court’s attention any issues that, in their view, remain unresolved, in writing, within forty-five
17
Plaintiffs have consistently referred to special damages as encompassing claims
for varying levels of emotional distress damages. While the Court recognizes that special
damages could potentially include those outside the realm of emotional distress damages,
plaintiffs have never raised such claims.
38
(45) days of the date of this Order.18
A.
Distribution of General Damages Award
The Court has reviewed the parties’ briefing regarding the “cy pres” issue. (See Docket
Nos. 374, 380, 381.) As an initial matter, the Court must determine the amount that the
defendants will be required to allocate into a fund to distribute to class members as compensation
for their general damages. Defendants submit that the Court has “two options” in this regard.
First, the Court could “allow a reasonably liberal claims period for the Class Administrator to
locate and solicit all potential claimants, and then enter a general damages judgment for the
number of qualifying strip searches actually claimed times the $500 per search dignity damages
award.” (Defs.’ Reply at 6.) In connection with this option, defendants have offered to
undertake an obligation to “pay in perpetuity any valid future claims.” (Defs.’ Mem. at 7 n.2
(citing Van Gemert v. Boeing Co., 739 F.3d 730, 731, 733 (2d Cir. 1984)).)
Second, defendants assert that the Court could “enter an aggregate judgment of
approximately $11.5 million based upon the total number of eligible searches time $500, with the
unclaimed portion of this judgment reverting to the County at the end of the claims period.”
(Defs.’ Reply at 6.) Plaintiffs endorse defendants’ proposed second approach (i.e., entering an
“aggregate class judgment” in the amount “fixed by multiplying the number of qualifying strip
searches by $500”) with an important distinction: “any unclaimed funds [would] be distributed
18
In the most recent round of briefing, counsel referred the Court to arguments made
as part of prior written submissions. In future written submissions, the parties may not simply
incorporate past arguments by reference, but must restate those arguments so as to properly focus
the Court on the legal points they wish to make.
39
pro rata to those class members making claims.” (Pls. Opp’n at 3.)19
The Court will adopt defendants’ second proposal, i.e., a judgment will be entered against
defendants in an aggregate amount based upon the total number of eligible searches performed,
multiplied by $500. The Court has further determined, contrary to plaintiffs’ request, that – no
matter the amount of money that defendants are required to advance into a fund for distribution
of general damages – any unclaimed funds will revert back to defendants. The Court declines to
adopt plaintiffs’ suggestion to distribute unclaimed funds to those individuals who make claims;
such a procedure would result in those class members receiving a windfall from the public fisc
and is inconsistent with the general legal tenant that compensatory damages should do no more
than compensate a victim for their injury. Accord 3 Alba Conte & Herbert Newberg, Newberg
on Class Actions § 10:5 n.3 (4th ed. 2002) (“[I]t is now clear that the Second Circuit condemns
fluid recovery which is defined as a distribution of an aggregate class recovery or an unclaimed
portion thereof under cy pres principles to the next best class of persons.”) (citing Eisen v.
Carlisle & Jacquelin, 479 F.3d 1005 (2d Cir. 1973), cert granted, 414 U.S. 908 (1973), judgment
vacated on other grounds, 417 U.S. 156 (1974)).
B.
Notice and Claims Forms
The Court finds that each member of the class is entitled to notice of: (1) the finding of
liability against the defendants, (2) the general damages award previously rendered in the amount
of $500 per strip search, (3) the Court’s decision not to continue class certification so as to permit
special damages to be decided on a classwide basis, and (4) the right of each class member to
19
Interestingly, should the Court adopt plaintiffs’ “modest proposal,” “plaintiffs
would agree to forego any further trial(s) or proceedings with respect to emotional damages and
end the case now.” (Pls.’ Opp’n at 3.)
40
commence an individual action seeking damages for his or her emotional distress – whether it be
emotional distress beyond that which is inseparable from the injury to human dignity or other
items of special damages, including more severe emotional distress. Plaintiffs’ counsel is
directed to prepare such notice and submit it for the Court’s approval within forty-five (45) days
of the date of this Order. The notice shall include specific instructions as to how class members
can file a claim for general damages (i.e., $500 per strip search). The notice should also include
information as to the statute of limitations for individual actions for emotional distress damages.
Because today’s Memorandum & Order is not a “final decision” with respect to these issues, the
Court does not believe that the statute of limitations will begin to run until a final order
(embodying all of the “loose ends” discussed herein) is entered.20 Finally, the notice should
address the length of the claims period remaining to those former class members seeking to
pursue special damages.
In addition, class counsel is directed to prepare a proposed Claim Form which will inform
each member of the class about the general damages award, and will inform them that they will
have a full and fair opportunity to submit a claim for such an award. In addition, to partially
reiterate, the Claim Form must also fairly, accurately, and reasonably inform each member of the
class of the expiration date for the claims period and strongly encourage them to file their claims
20
See Crown, Cork & Seal Co., Inc., 462 U.S. 345, 353-54 (1983) (“We conclude
. . . that the commencement of a class action suspends the applicable statute of limitations as to
all asserted members of the class who would have been parties had the suit been permitted to
continue as a class action. Once the statute of limitations has been tolled, it remains tolled for all
members of the putative class until class certification is denied. At that point, class members
may choose to file their own suits or to intervene as plaintiffs in the pending action.”) (internal
citations and quotation marks omitted); see also Defs.’ Mem. at 12 n.5 (citing 5 Moore’s Fed.
Practice – Civil § 23.65[1][a]).
41
in a timely manner.
C.
Pre- and Post-Judgment Interest
1.
Pre-Judgment Interest
Plaintiffs contend that they are entitled to pre-judgment interest on their award. (Pls.’
Nov. 19, 2010 Letter at 1.)21 Although Section 1983 does not explicitly provide for pre-judgment
interest, “[i]n a suit to enforce a federal right, the question of whether or not to award
prejudgment interest is ordinarily left to the discretion of the district court.” Gierlinger v.
Gleason, 160 F.3d 858, 873 (2d Cir. 1998). In exercising such discretion, the Court should
consider: “(i) the need to fully compensate the wronged party for actual damages suffered, (ii)
considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the
statute involved, and/or (iv) such other general principles as are deemed relevant by the court.”
Id. Additionally, “[t]he speculative nature of the damages in question will always be relevant to
a sound decision on a consideration of whether prejudgment interest should be awarded.”
Wickham Contracting Co., Inc. v. Local Union No. 3, Int’l Bhd. of Elec. Workers, AFL-CIO, 955
F.2d 831, 836 (2d Cir. 1992). “The Court must also bear in mind that ‘[t]he underlying purpose
of prejudgment interest . . . is the need to fully compensate the wronged party for the actual
damages suffered, i.e., to make him whole.’” Sulkowska v. City of New York, 170 F. Supp. 2d
359 (S.D.N.Y. 2001) (quoting Thomas v. City of Mt. Vernon, 1992 WL 84560, at *3 (S.D.N.Y.
Apr. 10, 1992)) (alterations in the original).
21
Plaintiffs assert that the “class plaintiffs” are entitled to pre-judgment interest
running “from the date of the strip search, or, alternatively, the entire class is entitled to prejudgment interest from some middle ground date during the class period (e.g., December 1,
1997), until the entry of judgment, at the New York State statutory rate of nine percent per year.”
(Pls.’ Nov. 19, 2010 Letter at 1.)
42
Applying this legal framework, courts within this Circuit routinely allow recovery of prejudgment interest on awards of back pay and lost wages. See, e.g., Gierlinger, 160 F.3d at 873
(“To the extent, however, that the damages awarded to the plaintiff represent compensation for
lost wages, ‘it is ordinarily an abuse of discretion not to include pre-judgment interest.’”)
(quoting Salpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993)) (emphasis in the
original); Mohan v. La Rue Distribs., Inc., 2008 WL 4822266, at **2-3 (E.D.N.Y. Oct. 27, 2008)
(finding that pre-judgment interest “is mandatory” with respect to jury’s award for lost wages and
fringe benefits). Contrary to plaintiffs’ assertions, however, courts generally decline to permit
recovery of pre-judgment interest on Section 1983 compensatory damages awards that are “based
exclusively on the emotional injuries that [the] plaintiff sustained” as a result of the
constitutional violation. Sulkowska, 170 F. Supp. 2d at 371 (internal quotation marks omitted,
alteration added) (declining to permit recovery of pre-judgment interest on compensatory
damages award based upon plaintiff’s Section 1983 claims for false arrest, assault and battery,
and malicious prosecution); see also McDow v. Rosado, 2009 WL 3103778, at *2 (S.D.N.Y.
Sept. 29, 2009) (amending judgment and striking pre-judgment interest on award that “was
approximate in nature . . . and fully compensated plaintiff for his mental suffering related to false
arrest and excessive force”); Gonzalez v. Bratton, 147 F. Supp. 2d 180, 214 (S.D.N.Y. 2001)
(finding plaintiff not entitled to pre-judgment interest on award for emotional pain and suffering
as a result of, inter alia, unlawful strip search).
Here, there has been no claim that plaintiffs suffered any economic injuries, such as lost
wages, or any other form of monetary deprivation as a result of the unlawful strip searches. See
Sulkowska, 170 F. Supp. 2d at 371. In addition, as the extensive analysis performed by the Court
43
in connection with its September 22, 2010 award of general damages makes clear, the amount of
damages attributable to plaintiffs’ injuries “[were] not ascertainable with any precision either at
the time of the wrongdoing or at the time of trial.” See id. In selecting $500 per strip search as
the general damages award the Court “intended to fully compensate” plaintiffs for their injuries
and, “[u]nder such circumstances, an award of prejudgment interest would not be compensatory,
but punitive, which is an improper purpose.” See id. at 371-72.22
Accordingly, plaintiffs’ request for recovery of pre-judgment interest is denied.
2.
Post-Judgment Interest
Plaintiffs contend that they are entitled to an award of post-judgment interest “at the rate
of nine percent per year, from the entry of judgment until such time as defendants pay the
judgment.” (Pls.’ Nov. 19, 2010 Letter at 1.) Plaintiffs further assert that they are entitled to a
second, separate but “non-duplicative” award of post-judgment interest “at the rate of nine
percent per year, from the date of defendants’ concession of liability (September 23, 2003)
through the payment of judgment, or at least from the entry of judgment of liability (January 12,
2007) through the payment of judgment.” (Id.)
Pursuant to 28 U.S.C. § 1961(a): “Interest shall be allowed on any money judgment in a
civil case recovered in a district court.” 28 U.S.C. § 1961(a). Plaintiffs contend that “it is in the
judge’s discretion to determine the appropriate rate of interest to apply, [and] judges generally
22
Plaintiffs assert that in Green v. Torres, 98 CV 8700, a “federal civil rights action
against a municipality with both federal constitutional and state law claims as here,” following a
jury verdict and award of $58,508 to plaintiff, Judge Rakoff “supplemented the jury’s award . . .
with $12,594.44 in pre-judgment interest . . . .” (Pls.’ Nov. 19, 2010 Letter at 2.) Plaintiffs,
however, have failed to furnish a copy of that judgment or otherwise demonstrate that the
plaintiff in Green was permitted to recover pre-judgment interest on an award for exclusively
emotional distress damages, as opposed to an award of back pay or lost wages.
44
look to state law for guidance in this regard.” (Pls.’ Nov. 19, 2010 Letter at 2 (citing N.Y.
C.P.L.R. § 5004 and N.Y. Gen. Mun. Law § 3-a (prescribing 9 percent as interest rate to be paid
on judgments against municipal corporations)).) Plaintiffs assertions to the contrary, however,
the plain language of Section 1961(a) sets forth the applicable rate for post-judgment interest as:
“a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the
Board of Governors of the Federal Reserve System, for the calendar week preceding the date of
the judgment.” 28 U.S.C. § 1961(a). The cases cited by plaintiffs, which largely discuss rates for
awards of pre-judgment interest, do not require a different result. (See Pls.’ Nov. 19, 2010 Letter
at 2 (citing Velez v. Puerto Rico Marine Mgmt., Inc., 957 F.2d 933, 941 (1st Cir. 1992) (noting
that Section 1961 “provides a rate for post-judgment interest but is silent as to pre-judgment
interest,” and finding it appropriate to look to “state law in setting the pre-judgment interest
rate”); Hansen v. Cont’l Ins. Co., 940 F.2d 971, 983-85 (5th Cir. 1991) (discussing appropriate
rate of pre-judgment interest); Green v. Torres, 290 F. Supp. 2d 427, 431 (S.D.N.Y. 2003)
(calculating post-judgment interest on attorneys’ fees award)).) Accordingly, any post-judgment
interest award will be at the rate prescribed in 28 U.S.C. § 1961(a).
Furthermore, Section 1961(a) also makes clear that post-judgment interest begins to run
“from the date of the entry of judgment.” 28 U.S.C. § 1961(a). The Second Circuit has
consistently held that post-judgment interest does not run from the date of a party’s concession of
liability or a jury’s verdict and finding of liability. See, e.g., New England Ins. Co. v. Healthcare
Underwriters Mut. Ins. Co., 352 F.3d 599, 605 (2d Cir. 2003) (finding that Section 1961(a)
“requires the starting date for the calculation of federal interest to be the date of entry of the
JMOL, not the date of the jury verdict or the date the court imagines the jury verdict would have
45
been entered but for the delay caused by the defendant’s motion for JMOL”); Magee v. United
States Lines, Inc., 976 F.2d 821, 823-24 (2d Cir. 1992) (concluding that “postjudgment interest
properly runs from the date of the entry of judgment,” and disapproving of district court’s
“device of creating a make-believe date of entry whose sole purpose was to avoid the clear intent
of section 1961”); Brady v. Wal-Mart Stores, Inc., 2010 WL 4392566, at *11 (E.D.N.Y. Oct. 29,
2010); see also Andrulonis v. United States, 26 F.3d 1224, 1230 (2d Cir. 1994) (“Postjudgment
interest is designed to compensate the plaintiff for the delay it suffers from the time damages are
reduced to an enforceable judgment to the time the defendant pays the judgment.”)
Thus, plaintiffs will be awarded post-judgment interest at a rate to be calculated pursuant
to the explicit terms of Section 1961, running from the date of the entry of judgment.
D.
“Book and Bail”
The most recent correspondence the Court received regarding the “book and bail” issue is
dated November 2010. The parties are directed to update the Court, within forty-five (45) days
of the date of this Order regarding the status of this issue.
E.
Counsel Fees
By Order dated October 8, 2010, plaintiffs were granted leave to file an application for an
interim fee award but never did so and, therefore, the issue of attorneys’ fees is not currently ripe.
The Court, however, finds it prudent to inform the parties as to its preliminary inclination on the
subject prior to receiving the benefit of briefing from counsel, although the Court remains open
to the parties’ input. To the extent the total amount of general damages awarded by the Court is
germane to the calculation of attorneys’ fees, the Court intends to consider the entire amount
awarded (i.e., $500 multiplied by the entire number of strip searches that occurred), not just the
46
portion of the amount that is claimed. Once the “book and bail” issue is decided, the Court can
determine the entire amount to be awarded, and judgement will be entered. Thereafter, the case
will remain open pending a determination of attorneys’ fees.
SO ORDERED.
Dated:
Central Islip, New York
October 19, 2011
/s/
Denis R. Hurley
United States District Judge
47
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