Newton v. The City of New York et al

Filing 242

OPINION AND ORDER: For the foregoing reasons, defendants' Rule 59(a) motion for a new trial is DENIED and defendants Rule 59(e) motion for remittitur is GRANTED. The Court orders remittitur of Newtons Section 1983 award in excess of twelve million dollars. If Newton does not accept this reduced award, a new trial will be ordered on the issue of damages. SO ORDERED. (As further set forth in this Opinion) (Signed by Judge Shira A. Scheindlin on 3/4/2016) (kl)

under Section 1983 of Title 42 of the United States Code (“Section 1983”) and for
intentional infliction of emotional distress (“IIED”) under state law.
At trial, which began in September 2010, the jury returned a verdict in
Newton’s favor on both claims — awarding him eighteen million dollars on the
Section 1983 claim and $92,500 on the IIED claim. After trial, defendants moved
to set aside both verdicts pursuant to Rule 50(b) of the Federal Rules of Civil
Procedure. Alternatively, defendants moved for a new trial or remittitur under
Rules 59(a) and (e) of the Federal Rules of Civil Procedure, respectively.
On May 12, 2011, this Court granted defendants’ Rule 50(b) motion
in full, setting aside both verdicts and declining to reach the merits of defendants’
Rule 59 motions (the “May 12, 2011 Decision”).2 Newton appealed only the
setting aside of the Section 1983 verdict. On February 26, 2015, the Second
Circuit found for Newton and reinstated that award.3 The Second Circuit mandate
issued on May 22, 2015 (the “Mandate”), remanding this case for further
proceedings.
On remand, defendants now seek a ruling on their outstanding Rule 59
motions. Newton objects, however, to this Court’s authority to decide these
2

See Newton v. City of New York, 784 F. Supp. 2d 470, 473 n.5
(S.D.N.Y. 2011).
3

See Newton v. City of New York, 779 F.3d 140 (2d Cir. 2015).
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motions at this stage — arguing that defendants have abandoned them and that the
Mandate precludes their adjudication.4
For the following reasons, I find that this Court retains jurisdiction to
decide defendants’ pending Rule 59(a) and (e) motions. The Rule 59(a) motion for
a new trial is DENIED and the Rule 59(e) motion for remittitur is GRANTED.
II.

BACKGROUND5
A.

The V.J. and E.G. Convictions
In May 1985, Newton was convicted on charges relating to two

separate sexual assault incidents. The first conviction — of which Newton was
ultimately exonerated — was for rape, robbery, and assault (the “V.J. Conviction”).
This conviction was based primarily on eyewitness testimony. No DNA evidence
was offered at trial, as the science of DNA testing was not yet adequately advanced.
On this conviction, Newton was sentenced to an indeterminate prison term of
thirteen and one-third to forty years.
Also in May 1985, Newton was convicted of First Degree Attempted

4

The parties submitted letters in support of their respective positions.
See Dkt. Nos. 230-235, 239-241. Unless otherwise indicated, the docket numbers
referenced in this Opinion correspond to filings on the district court docket.
5

This section outlines only the facts and procedural history that are
relevant to this Opinion. Additional background is provided in this Court’s May
12, 2011 Decision. See Newton, 784 F. Supp. 2d 470.
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Rape, a Class C felony, and Endangering the Welfare of a Minor, a misdemeanor
(the “E.G. Conviction”). The victim was a nine-year-old girl. On this conviction,
Newton was sentenced to an indeterminate prison term of three and one-third to ten
years. Newton was to serve the V.J. and E.G. sentences consecutively.
B.

Exoneration from the V.J. Conviction
In 1994, approximately eleven years into Newton’s incarceration,

New York State enacted legislation allowing post-conviction defendants to request
and obtain DNA testing under certain circumstances.6 Between 1994 and 2002,
Newton thrice requested and received permission from a New York State court to
conduct DNA testing on evidence from the V.J. crime scene. In each instance, the
City was unable to locate the rape kit containing the relevant biological evidence.
V.J.’s rape kit was finally located in 2005, and DNA testing excluded
Newton as the source of the sperm collected from the victim. Accordingly, in 2006,
the New York Supreme Court vacated the V.J. Conviction and Newton was released
from prison. Despite Newton’s efforts, the E.G. Conviction was not overturned.7
6

See N.Y. Crim. P. Law § 44.30(1-a).

7

In 1987, the New York Appellate Division affirmed the E.G.
Conviction, and the New York Court of Appeals denied Newton’s petition for
leave to appeal. See People v. Newton, 958 N.Y.S.2d 648, at *1 (N.Y. Sup. Ct.
2010). Newton subsequently filed five pro se appeals and one pro se writ of
habeas corpus, all of which were denied. Id. at *3. Thereafter, Newton moved in
the New York Supreme Court for dismissal of the E.G. indictment on the basis,
-4-

By the time of his release, however, Newton had served the maximum ten-year
sentence for that conviction.8
C.

Trial
In 2007, Newton brought this action seeking recovery for his wrongful

V.J. Conviction. This case was tried by a jury in September 2010, with bifurcation
of the Section 1983 claim’s liability and damages phases.
1.

Evidentiary Rulings

Among the pre-trial evidentiary rulings, this Court ruled on the
admissibility of the E.G. Conviction (i.e., the attempted rape conviction that was not
overturned). The Court admitted the following details about the E.G. Conviction:
date of conviction, length of sentence, and that the conviction was for a Class C
felony. The Court excluded the nature of the E.G. Conviction (attempted rape) and
the fact that the victim was a minor. In accordance with these rulings, Newton
stipulated at trial that he would have served the maximum ten-year sentence for the
E.G. Conviction and thus, that he served twelve years for the V.J. Conviction.
2.

Liability Phase

inter alia, of the state’s failure to preserve the victim’s sweater. See id. That
motion was denied in 2010. See id.
8

See “Inmate Information for Alan Newton,” Ex. A to Plaintiff’s
Memorandum of Law in Support of Motion to Exclude Evidence of Plaintiff’s
Prior Conviction and Sentence, at 1-2 (Dkt. No. 168).
-5-

At the close of the Section 1983 liability phase, defendants moved for
judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil
Procedure. This Court denied that motion, with the exception of granting
defendants’ motion to dismiss a negligence claim.
Newton’s Section 1983 and IIED claims were submitted to the jury,
who returned their liability verdicts on October 18, 2010. The jury found the City
liable on the Section 1983 claim and two of the four individual defendants liable on
the IIED claim.
3.

Damages Phase

On the Section 1983 claim, Newton sought to recover only for his pain
and suffering during the twelve years of his wrongful incarceration.9 Newton served
as the only witness on the issue of damages. On direct examination, Newton
testified, inter alia:
Plaintiff’s Counsel:

Can you describe those feelings of fear that you
experienced during those last twelve years of
incarceration?

Newton:

I was charged with a sexual assault in a
penitentiary which is considered the lowest
level. You’re considered the lowest prisoner in
there. You could have a prisoner that walks

9

See 10/18/10 Trial Transcript at 2396:19, 21-22 (“We are not seeking
economic loss. . . . We are going for the 12 years of wrongful incarceration, pain
and suffering.”) (Plaintiff’s Counsel John Schutty).
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around with twenty-seven homicides and [is] a
serial killer and you’re still considered worse
than him because of the nature of the offense. .
. . [A]nd I[’ve] seen a lot of people that had
sexual assault crimes become a victim in there
because of the nature of the offense. And so
you always had to — that was a consideration
in the back of my mind and it was something
that I had to live with every day.10
Newton also testified that he “really never suffered [any] physical injuries” while
incarcerated and had not sought medical assistance for feelings of depression after
his release.11 He also explained that his conditions of confinement during his latter
twelve years of confinement (for the V.J. Conviction) — while difficult and marked
by severe limitations on his freedom, comfort, and privacy — did not differ
significantly from those during his first ten years (for the E.G. Conviction).12
After Newton’s direct examination, defendants again sought permission
to disclose the nature of the E.G. Conviction to the jury. In support of this request,
defendants argued that Newton’s damages testimony had “opened the door to

10

Id. at 2442:11-23.

11

Id. at 2445:11-12 (Plaintiff Alan Newton). Accord id. at 2446:6
(Plaintiff Alan Newton).
12

See id. at 2466-2475, 2497-2499.
-7-

admission of the nature of [the E.G. Conviction], also a sexual offense.”13 Adhering
to its original ruling, the Court denied defendants’ request because “[t]he prejudice
[of admission] outweigh[ed] the probative value.”14
During summations, Newton’s attorney suggested to the jury that
Newton be awarded two million dollars per year of wrongful incarceration.
Thereafter, the Court instructed the jury that Newton’s attorney was “allowed to
suggest [that amount] but you are in no way bound to follow it.”15
The jury reached its damages verdicts on October 19, 2010. On the
Section 1983 claim, the jury awarded a compensatory award of eighteen million
dollars — which, allocated evenly across Newton’s stipulated twelve years of
wrongful incarceration, amounted to $1.5 million per year.16 On the IIED claim, the
jury awarded $92,500.17
D.

Defendants’ Post-Trial Motions

13

2/12/16 Letter from Assistant Corporation Counsel Arthur Larkin to
the Court at 2 (Dkt. No. 239).
14

10/19/10 Trial Transcript (“10/19/10 Trial Tr.”) at 2493:20-21.

15

Id. at 2528:6-8.

16

See 1/22/16 Conference Transcript at 22:3-4 (Plaintiff’s Counsel John

Schutty).
17

The jury was not asked to, and did not, deliberate with respect to
punitive damages.
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After trial, in November 2010, defendants renewed their motion for
judgment as a matter of law under Rule 50(b). Defendants also moved, in the
alternative, for a new trial or remittitur under Rules 59(a) and (e). Defendants’ Rule
50 and 59 motions were briefed together.
On May 12, 2011, this Court granted defendants’ Rule 50(b) motion
and set aside both the Section 1983 and IIED awards — holding, inter alia, that
defendants’ “delay in producing the DNA evidence resulted from the City’s poor or
non-existent evidence management system is indicative of negligence, but does not
rise to the level of a constitutional violation.”18 In so ruling, the May 12, 2011
Decision declined to reach the Rule 59 motions, explaining: “alternatively,
defendants move for a new trial or remittitur. . . . Because I grant defendants’ Rule
50(b) motion in its entirety, I do not consider these other claims.”19 Neither party
moved for reconsideration of the May 12, 2011 Decision.
E.

Newton’s Appeal
On June 23, 2011, Newton filed a Notice of Appeal from the portion of

the May 12, 2011 Decision overturning the Section 1983 award.20 In his Opening
18

Newton, 784 F. Supp. 2d at 480.

19

Id. at 473 n.5.

20

As noted, Newton did not appeal the May 12, 2011 Decision with
respect to the IIED award.
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Brief, filed November 4, 2011, Newton appealed only the grant of defendants’ Rule
50(b) motion and did not mention the undecided Rule 59 motions.21 Defendants’
Opposition Brief, filed on February 14, 2012, contained the following reference to
the Rule 59 motions: “[a]lternatively, defendants moved for a new trial or remittitur
of the damages award.”22 Newton’s Reply Brief, filed March 14, 2012, again did not
mention the Rule 59 motions.23 This Court’s May 12, 2011 Decision was included
in the appellate record at Dkt. No. 3.
Appellate argument was held on October 3, 2012. On February 26,
2015, the Second Circuit issued an Opinion vacating this Court’s May 12, 2011
Decision (with instructions on remand),24 and its Mandate issued on May 22, 2015.
The Mandate provided
that the judgment of the district court is vacated and the case is
remanded with instructions to reinstate the jury verdict with respect

21

See 11/4/11 Brief for Plaintiff-Appellant (2d Cir. Dkt. No. 56).

22

2/14/12 Opposition Brief for Defendants-Appellees at 6 (2d Cir. Dkt.

No. 120).
23

See 3/14/12 Reply Brief for Plaintiff-Appellant (2d Cir. Dkt. No. 123).

24

See Newton, 779 F.3d at 156 (holding, inter alia, that “a recklessness
or deliberate indifference analysis should have compelled the District Court to
uphold the 2010 jury verdict” on the Section 1983 claim); id. (observing that,
“[t]aken together, th[e] evidence supports a finding that the City, through the poor
administration of its evidence management system, perpetuated a practice or
custom that was wholly inadequate).
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to the Appellant’s Fourteenth Amendment claim and to reconsider
Appellant’s First Amendment claim in light of the opinion of this
court.25
Neither the Second Circuit’s Opinion nor Mandate mentioned the still-pending Rule
59 motions.26
F.

Remand Proceedings
On remand, Newton seeks immediate entry of a final judgment on the

eighteen million dollar Section 1983 verdict. Defendants, however, ask that this
Court first decide their outstanding Rule 59 motions.
III.

APPLICABLE LAW
A.

Federal Rule of Civil Procedure 50(c)(1)
Pursuant to Rule 50(c)(1), when a district court grants a Rule 50 motion

for judgment as a matter of law, it “must also conditionally rule on any motion for a
new trial” and “state the grounds for conditionally granting or denying the motion
for a new trial.”27 Thus, in granting judgment as a matter of law, a trial court cannot
25

5/22/15 Judgment Mandate (Dkt. No. 193).

26

Additionally, defendants filed a petition for rehearing and rehearing
en banc, which was denied on May 11, 2015. On January 11, 2016, the United
States Supreme Court also denied defendants’ petition for a writ of certiorari. See
City of New York v. Newton, No. 15-308, 2016 WL 100376 (Jan. 11, 2016).
27

Rule 50(c)(2) further provides:
[c]onditionally granting the motion for a new trial does not affect
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decline to reach the merits of any motion for a new trial on the basis of mootness.28
B.

The Mandate Rule
It is well-settled that “‘[an appellate] mandate is controlling only as to

matters within its compass. . . . Put simply, the law of the case does not extend to
issues an appellate court did not address.’”29 However,
[w]hen an appellate court has once decided an issue, the trial court,
at a later stage of the litigation, is under a duty to follow the
appellate court’s ruling on that issue. . . . This mandate rule prevents
re-litigation in the district court not only of matters expressly
decided by the appellate court, but also precludes re-litigation of
issues impliedly resolved by the appellate court’s mandate.30

the judgment’s finality; if the judgment is reversed, the new trial
must proceed unless the appellate court orders otherwise. If the
motion for a new trial is conditionally denied, the appellee may
assert error in that denial; if the judgment is reversed, the case
must proceed as the appellate court orders.
28

See Conte v. County of Nassau, 596 Fed. App’x 1, 6 (2d Cir. 2014)
(“Here, the district court denied the new trial motions as moot, but failed to
conditionally rule on the parties’ Rule 59 motions.”); Allam v. Myers, 906 F. Supp.
2d 274, 284 (S.D.N.Y. 2012) (“Pursuant to Rule 50(c)(1), we are required to
conditionally rule on the necessity of a new trial if our grant of JMOL . . . is later
vacated or reversed by a higher court.”); Jennings v. Jones, 499 F.3d 2, 21 (1st Cir.
2007) (“After granting his motion for judgment as a matter of law, the district court
held that the alternative motions were moot. This holding was error.”).
29

Sompo Japan Ins. Co. v. Norfolk S. Ry. Co., 762 F.3d 165, 175-76 (2d
Cir. 2014) (quoting New England Ins. Co. v. Healthcare Underwriters Mut. Ins.
Co., 352 F.3d 599, 606 (2d Cir. 2003)).
30

Brown v. City of Syracuse, 673 F.3d 141, 147 (2d Cir. 2012)
(quotation marks and citations omitted).
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IV.

LEGAL STANDARD
“Rule 59 [of the Federal Rules of Civil Procedure] provides the

mechanism by which a court can (1) set aside a verdict and order a new trial; or (2)
reconsider a prior entry of judgment.”31 Pursuant to this rule,
[t]he trial judge has “discretion to grant a new trial if the verdict
appears to [the judge] to be against the weight of the evidence.” . .
. This discretion includes overturning verdicts for excessiveness and
ordering a new trial without qualification, or conditioned on the
verdict winner’s refusal to agree to a reduction (remittitur).32
Two subsections of Rule 59 are applicable here.
A.

Rule 59(a) Motion for a New Trial
Under Rule 59(a) of the Federal Rules of Civil Procedure, a court

“‘may, on motion, grant a new trial on all or some of the issues . . . after a jury trial,
for any reason for which a new trial has heretofore been granted in an action at law
in federal court.’”33 However, “a court considering a Rule 59 motion for a new trial
must bear in mind that the court should only grant such a motion when the jury’s

31

2 Steven S. Gensler, Federal Rules of Civil Procedure, Rules and
Commentary Rule 59 (2016).
32

Kirsch v. Fleet St. Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (quoting
Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433 (1996)) (further
quotation omitted).
33

Lawson v. County of Suffolk, 920 F. Supp. 2d 332, 339 (E.D.N.Y.
2013) (quoting Fed R. Civ. P. 59(a)(1)(A)).
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verdict is egregious.”34 Thus, “‘[a] motion for a new trial should be granted when, in
the opinion of the district court, the jury has reached a seriously erroneous result or .
. . the verdict is a miscarriage of justice.’”35
“The general grounds for a new trial are that (1) the verdict is against
the clear weight of the evidence; (2) the trial court was not fair; (3) substantial errors
occurred in the admission or rejection of evidence or the giving or refusal of
instructions to the jury; or (4) damages are excessive.”36 To order a new trial based
on the admission or rejection of evidence at trial, the challenged evidentiary rulings
must have been “a clear abuse of discretion and . . . so clearly prejudicial to the
outcome of the trial that [the court is] convinced [that] . . . a seriously erroneous
result or . . . miscarriage of justice” occurred.37
B.

Rule 59(e) Motion for Remittitur
Alternatively, “[u]nder Rule 59(e) of the Federal Rules, a court can

34

DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir.
1998) (citation omitted).
35

Lawson, 920 F. Supp. 2d at 339 (quoting DLC, 163 F.3d at 133)
(further quotation omitted).
36

Id. (citing 12 James W. Moore, Moore’s Federal Practice § 59.13 (3d

ed. 2005)).
37

Nimely v. City of New York, 414 F.3d 381, 399 (2d Cir. 2005)
(emphasis in original) (quotation marks and citation omitted).
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grant a motion to alter or amend a judgment ‘to correct a clear error of law or
prevent manifest injustice.’”38 Pursuant to this authority, the trial court is
empowered to “enter a conditional order of remittitur, compelling a plaintiff to
choose between reduction of an excessive verdict and a new trial.”39 “‘It is not[,
however,] among the powers of the trial court, where the jury has awarded excessive
damages, simply to reduce the damages without offering the prevailing party the
option of a new trial.’”40
Thus, “[w]hile calculating damages is traditionally the province of the
jury, the Second Circuit has held that an award can be amended or set aside as
‘excessive’” in at least two circumstances:41
(1) where the court can identify an error that caused the jury to
include in the verdict a quantifiable amount that should be stricken,
. . . and (2) more generally, where the award is “intrinsically
excessive” in the sense of being greater than the amount a
reasonable jury could have awarded, although the surplus cannot be

38

Guzman v. Jay, 303 F.R.D. 186, 197 (S.D.N.Y. 2014) (quoting
Munafo v. Metropolitan Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004)) (further
quotation omitted).
39

Kirsch, 148 F.3d at 165.

40

Miller v. City of Ithaca, New York, No. 10 Civ. 597, 2015 WL
9223755, at *5 (alteration in original) (quoting Tingley Sys., Inc. v. Norse Sys.,
Inc., 49 F.3d 93, 96 (2d Cir. 1995)).
41

Guzman, 303 F.R.D. at 197 (quoting Kirsch, 148 F.3d at 165).
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ascribed to a particular, quantifiable error.42
“Where there is no particular discernable error, [the Second Circuit has]
generally held that a jury’s damage award may not be set aside as excessive unless ‘the
award is so high as to shock the judicial conscience and constitute a denial of justice.’”43
“A verdict shocks the judicial conscience ‘only if it surpasses an upper limit, and
whether that has been surpassed is not a question of fact with respect to which
reasonable persons may differ, but a question of law.’”44 “In making this
determination, courts canvass the amounts awarded in ‘comparable cases’ and
determine whether the award falls within the ‘reasonable range.’”45 “The key is
comparability: whether the counterpart cases involve analogous facts, similar
measures of damages, and are otherwise fairly congruent.”46 The Second Circuit has
“stress[ed], however, that [this] task is not [simply] to balance the number of high

42

Kirsch, 148 F.3d at 165 (further quotations omitted).

43

Id. (quoting O’Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988))
(further quotation omitted).
44

Guzman, 303 F.R.D. at 197 (quoting Ahlf v. CSX Transp., Inc., 386 F.
Supp. 2d 83, 87 (N.D.N.Y. 2005)) (further quotation omitted).
45

Id. (quoting MacMillan v. Millennium Broadway Hotel, 873 F. Supp.
2d 546, 560 (S.D.N.Y. 2012)).
46

Limone v. United States, 579 F.3d 79, 104 (1st Cir. 2009).
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and low awards and reject the verdict if the number of lower awards is greater.”47
Further, “in making a determination as to excessiveness, the court ‘is free to weigh
the evidence and need not view it in the light most favorable to the verdict
winner.’”48
V.

DISCUSSION
A.

Jurisdiction Over Rule 59 Motions49
As a threshold matter, Newton contends that this Court should not

address the merits of defendants’ Rule 59 motions because it lacks jurisdiction to do
so.50 First, Newton argues that defendants abandoned these motions in failing to
pursue them before or on appeal. Second, Newton argues that the mandate rule
proscribes a post-remand decision on these motions. I address each argument in
turn, and find that I am not precluded from rendering a decision on the pending

47

Ismail v. Cohen, 899 F.2d 183, 187 (2d Cir. 1990).

48

Miller, 2015 WL 9223755, at *5 (quoting Farrior v. Waterford Bd. of
Educ., 277 F.3d 633, 634-35 (2d Cir. 2002)) (further quotation omitted).
49

Post-remand, these issues were addressed in letter-briefs filed by the
parties. See Dkt. Nos. 230-234. Oral argument was held before this Court on
January 22, 2016.
50

On February 8, 2016, this Court submitted a “Request to Second
Circuit For Clarification of Mandate” on these issues. See Dkt. No. 236. On
February 10, 2016, the Second Circuit issued an Order declining to provide
clarification of its Mandate. See Dkt. No. 237.
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motions.
1.

Abandonment

There is no dispute that this Court erred in its May 12, 2011 Decision
by not conditionally ruling, as required by Rule 50(c)(1), on defendants’ Rule 59
motions. Rather, Newton argues that defendants have abandoned their right to a
decision on these motions because they neither sought a conditional ruling from the
district court after the May 12, 2011 Decision (either through a motion for
reconsideration or other means) nor argued on appeal that the district court erred in
not making a conditional ruling. In support of this position, Newton avers that at
least three other circuits — the Fifth, Seventh, and Eleventh — have deemed Rule 59
motions abandoned under similar circumstances.51 Defendants respond that the
Second Circuit — along with other circuits — has not ruled on the issue of Rule 59
abandonment.52 Additionally, defendants argue that the First Circuit has rejected the
concept of abandonment.53

51

See, e.g., Christopher v. Florida, 449 F.3d 1360 (11th Cir. 2006);
Arenson v. Southern Univ. Law Center, 43 F.3d 194 (5th Cir. 1995); Oberman v.
Dun & Bradstreet, Inc., 507 F.2d 349 (7th Cir. 1974).
52

Defendants maintain that the Second Circuit’s ruling in Grant v.
Hazlett Strip-Casting Corporation did not decide the issue of Rule 59
abandonment. See 880 F.2d 1564 (2d Cir. 1989).
53

See Jennings, 499 F.3d 2.
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Broadly speaking, both parties’ characterizations are accurate: although
several circuits have deemed Rule 59 motions abandoned in certain situations, the
Second Circuit and others have not. An examination of the case law, text of Rule
50, and policy considerations on both sides leads me to conclude that defendants are
entitled to a post-remand ruling on their pending Rule 59 motions.
Of the circuits that have squarely confronted the issue, at least the
Eleventh and Fifth have found abandonment where, as here, the “Defendant fails to
pursue his motion for a new trial with the district court after the court grants JMOL
without making the alternative ruling required by Fed.R.Civ.P. 50(c)(1), and the
Defendant fails to argue for a new trial ruling on appeal.”54, 55 Although not all such
opinions include reasoning on this point, the Fifth Circuit has indicated that its
approach curtails “the delay and waste of judicial resources that can occur if parties
are allowed to resuscitate dormant motions for new trial after the appeals court has
54

Christopher, 449 F.3d at 1365 n.3. Accord Arenson, 43 F.3d at 196
(“[W]hen the defendants failed to seek a ruling from the district court on their
motion for new trial and failed to mention the new trial motion on appeal, they
abandoned the motion.”) (citing Johnstone v. American Oil Co., 7 F.3d 1217, 1224
(5th Cir. 1993)).
55

The Seventh Circuit appears to have gone further, finding
abandonment simply “if [the failure to issue a conditional ruling is] not pressed on
the trial court after the grant of judgment n.o.v.” — regardless of whether the issue
was raised on appeal. Oberman, 507 F.2d at 353. I need not address the
applicability of abandonment under this lesser scenario, as defendants here failed
to secure a conditional ruling from either the trial or appellate courts.
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once considered a judgment.”56
Other circuits, by contrast, have either squarely rejected or not
confronted this issue. Of these circuits, the First Circuit has taken the strongest
position in rejecting abandonment. In Jennings v. Jones, the First Circuit was
presented with a situation in which the defendant failed to obtain a conditional ruling
from the district court or argue for a new trial on appeal.57 Originally, the First
Circuit adopted the Fifth, Seventh, and Eleventh Circuits’ position and deemed the
defendant’s motion to be abandoned.58 Upon rehearing, however, “the revised panel
opinion withdr[ew] its ruling that the appellant [had] waived or forfeited his right to
a ruling on his conditional new trial motion” and remanded the case so that the
motion could be decided in the trial court.59
Similarly, when faced with a trial court’s failure to conditionally rule,
the Third Circuit has remanded the motion for a decision on its merits. In Rhone
Poulenc Pharmaceuticals v. Newman Glass Works, the Third Circuit explained that
“based on the grounds raised in the new trial motion and lack of any trial record or

56

Arenson, 43 F.3d at 196.

57

See Jennings v. Jones, 479 F.3d 110 (1st Cir. 2007) reh’g granted,
opinion withdrawn, 499 F.3d 1 (1st Cir. 2007) and on reh’g, 499 F.3d 2.
58

See Jennings, 479 F.3d 110.

59

Jennings, 499 F.3d 1 at 1-2.
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argument before [the appellate court] on the issue, . . . prudence militates in favor of
a remand so that the district court may consider [the motion].”60
Although the Second Circuit has not directly addressed the question of
Rule 59 abandonment, I am not without its guidance. At least two Second Circuit
cases suggest that had this Court’s failure to conditionally decide the Rule 59
motions been addressed on appeal, the Second Circuit would have remanded them
— as the First and Third Circuits have done — to be decided by this Court in the
first instance.
The first of these cases is Grant v. Hazelett Strip-Casting Corporation,
in which the trial court neglected to issue a conditional ruling when granting
defendant’s motion for judgment notwithstanding the verdict.61 On appeal, the
Second Circuit observed that “appellate courts often remand such cases to the trial
court for reconsideration of the motion for a new trial.”62 Nevertheless, the Second
Circuit noted that such a “remand is not automatic” and thus elected, “under the
circumstances of th[at] case,” to itself deny the motion for a new trial that had not

60

112 F.3d 695, 699 (3d Cir. 1997).

61

See 880 F.2d at 1571.

62

Id.
-21-

been decided.63 In so ruling, however, Grant acknowledged that the Seventh Circuit
had found abandonment when a “motion for new trial . . . i[s] not pursued following
entry of judgment n.o.v.”64 In other words, Grant implicitly rejected the concept of
abandonment and endorsed the approach of “remand[ing] such cases” for a Rule 59
decision.65
More recently, in Conte v. County of Nassau, the Second Circuit
addressed a related situation in which a trial court failed to conditionally rule but a
party brought this failure to the Court’s attention on appeal.66 The Second Circuit
remanded the case so that the Rule 59 motion could be decided by the trial court.67
Such precedent indicates that if this Court rules on defendants’ Rule 59 motions at
this stage, doing so will be consistent with the Second Circuit’s practice and will not
extend this litigation beyond what would have been required had these motions been
argued on appeal.68
63

Id.

64

Id. (citing Oberman, 507 F.2d 349).

65

Id.

66

596 Fed. App’x 1.

67

See id. at 7.

68

In fact, it is most efficient for this Court to now fulfill its Rule
50(c)(1) obligation and rule on the pending Rule 59 motions. In the event of an
appeal, the Second Circuit will be able to review the procedural and substantive
-22-

Further, although the Rule 59 motions were not litigated on appeal, the
Second Circuit was on notice that these motions had never been decided (and
nonetheless declined to address them or otherwise direct this Court as to their
resolution on remand). As such, I must conclude that had the Second Circuit
intended to deem defendants’ Rule 59 motions abandoned, it would have done so.
Specifically, this Court’s May 12, 2011 Decision — which was included in the
appellate record — expressly declined to rule on the Rule 59 motions.69
Additionally, defendants’ Opposition Brief on Appeal explained, with respect to the
post-trial proceedings below, that: “[a]lternatively, defendants [had] moved for a
new trial or remittitur of the damages award.”70
The text of Rule 50 also militates against finding abandonment. It is
well-settled that courts are to “‘give the Federal Rules of Civil Procedure their plain
meaning.’”71 Although Rule 50 requires trial courts to “conditionally rule on any
motion for a new trial by determining whether a new trial should be granted if the

issues addressed by this Opinion at one time.
69

Newton, 784 F. Supp. 2d at 473 n.5.

70

2/14/12 Opposition Brief for Defendants-Appellees at 6 (2d Cir. Dkt.
No. 120). The Second Circuit also had access to the text of Rule 50(c)(1) and
numerous other cases in which the trial court failed to conditionally rule.
71

Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007) (quoting Business
Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 540-41 (1991)).
-23-

judgment is later vacated or reversed,” it is silent as to litigants’ obligations in the
event that the trial court fails to make a conditional ruling.72 By contrast, other
provisions of the Federal Rules of Civil Procedure expressly provide for waiver
based on certain conduct by the parties.73 Accordingly, it is against the plain
meaning of Rule 50 to interpret Rule 50(c)(1) as including an implied waiver.
Given the state of the law, it follows that there would be a fundamental
unfairness in deeming defendants’ Rule 59 motions abandoned. Defendants,
litigating within the Second Circuit, cannot be expected to have anticipated being
held to a rule regarding abandonment that the Second Circuit had not adopted.
Further, the Second Circuit does not have a blanket rule requiring parties to seek
reconsideration of erroneous trial court rulings. Nor does the Second Circuit require
appellees (as defendants were, having prevailed on their Rule 50(b) motion) to brief
issues not raised by the appellant or file cross-appeals. And although Newton
certainly has a significant interest in the resolution of this litigation, he too failed to
avail himself of earlier opportunities to alert the trial and/or appellate courts to the
Rule 50(c)(1) oversight. For these reasons, this Court will not shift the burden of its
error in not conditionally ruling onto defendants.

72

Fed. R. Civ. P. 50(c)(1).

73

See, e.g., Fed. R. Civ. P. 12(h) (waiving defenses).
-24-

2.

The Mandate Rule

Alternatively, Newton argues that the mandate rule — which governs
the trial court’s “duty to follow the appellate court’s ruling on . . . issues” resolved
on appeal — precludes this Court from deciding defendants’ Rule 59 motions on
remand.74 This argument fails, however, as these open motions were neither
expressly nor impliedly resolved by the Second Circuit.75
There is no question that the Rule 59 motions were not expressly
resolved on appeal: as explained, the Second Circuit did not discuss them in either
the Opinion or Mandate vacating this Court’s May 12, 2011 Decision. Nor can it be
said that these rulings address, even impliedly, any limitations on this Court’s
authority to adjudicate pending issues upon remand.76 In fact, the Mandate remands
this case with instructions to reinstate the Fourteenth Amendment jury verdict and
reconsider Newton’s First Amendment Claim — indicating that the Second Circuit
74

Brown, 673 F.3d at 147 (quotation marks and citations omitted).

75

See Sompo Japan Ins. Co. v. Norfolk S. Ry. Co., 762 F.3d 165, 175-76
(2d Cir. 2014) (“‘A mandate is controlling only as to matters within its compass.’”)
(quoting New England, 352 F.3d at 606); Brown, 673 F.3d at 147 (2d Cir. 2012)
(explaining that the mandate rule “prevents re-litigation in the district court . . . of
matters expressly decided by . . . [or] impliedly resolved by the appellate court’s
mandate”) (quotation marks and citations omitted). However, as discussed infra at
Section V(B)(1), certain arguments made within defendants’ Rule 59(a) motion are
precluded by the Second Circuit’s ruling.
76

See Brown, 673 F.3d at 148.
-25-

contemplated further post-remand proceedings, not simply an automatic entry of
judgment. As such, the mandate rule — while certainly applicable to those issues in
this case that were resolved on appeal — does not relieve this Court of its obligation
to rule on the Rule 59 motions that remain pending.
B.

Rule 59 Motions77
Having determined that defendants’ Rule 59 motions can be decided on

remand, I address their merits.
1.

Rule 59(a) Motion for a New Trial

Defendants’ Rule 59(a) motion argued three bases for the grant of a
new trial: (1) that the jury verdict was seriously erroneous because Newton failed to
establish liability on either the Section 1983 or IIED claims; (2) that certain
evidentiary rulings, outlined below, prejudiced defendants and constituted an abuse
77

As explained, defendants’ Rule 59(a) and (e) motions were briefed
together, and this Court’s May 12, 2011 Decision declined to conditionally rule on
either motion. Between January 15, 2016 and February 12, 2016, defendants’
post-remand position appeared to be that they sought a ruling only on their pending
Rule 59(e) motion. See Dkt. Nos. 230-235. On February 12, 2016, however,
defendants filed a letter containing arguments from their Rule 59(a) motion. See
Dkt. No. 239. In light of this timing, Newton asks that the Court ignore
defendants’ Rule 59(a) arguments and entertain only their Rule 59(e) motion. I am
compelled, however, to decide the Rule 59(a) motion alongside the Rule 59(e)
motion (to the extent that these motions have not been resolved by the Mandate),
as both have been fully briefed since December 21, 2010. Notably, any short delay
by defendants in renewing their Rule 59(a) arguments does not prejudice Newton
given that this Opinion decides both Rule 59 motions and finds for Newton with
respect to the Rule 59(a) motion.
-26-

of discretion; and (3) that the jury charge was erroneous and not harmless error.78
The first and third of these arguments were rejected by the Second
Circuit, thereby precluding their re-litigation on this motion.79 As to defendants’
first argument, the issue of defendants’ Section 1983 liability was resolved in
Newton’s favor on appeal80 (and the IIED verdict is no longer at issue as Newton did
not appeal this Court’s decision to set it aside). Likewise, as to defendants’ third
argument, the Second Circuit ruled that the “challenged jury instructions were not
wrong.”81
This leaves only defendants’ second argument for a new trial, regarding
the admission or exclusion of certain evidence at trial. Defendants’ Rule 59(a)
motion objects to three evidentiary rulings:
(1) [the] denial of the City’s motion to admit evidence of Newton’s
prior conviction [for attempted rape of a minor] . . . even after
Newton opened the door to such evidence [during the damages
phase] . . . ; (2) [the] admission of evidence concerning the City’s
alleged failure to train or supervise employees . . . , for which the
City cannot be held liable . . . ; and (3) [the] admission of evidence

78

See Defendants’ Memorandum of Law in Support of Motion for
Judgment as a Matter of Law and Other Relief Pursuant to Rules 50 and 59 (“Defs.
Mem.”) at 21-22.
79

See Brown, 673 F.3d at 148 (explaining the mandate rule).

80

See Newton, 779 F.3d at 156.

81

Id. at 158.
-27-

regarding searches for evidence that post-dated Newton’s request
for the rape kit, . . . which were inadmissible to prove prior notice
[to the City regarding its evidence management deficiencies].82
Because the latter two of these rulings relate to defendants’ Section 1983 liability, an
issue that has been resolved by the Second Circuit,83 they cannot be revisited on
remand.84
By contrast, the first challenged ruling — which prevented the jury
from knowing that the E.G. Conviction involved attempted rape of a minor — is
reviewable at this stage because it concerns the amount of damages, an issue that the
Second Circuit did not address. Defendants argue that this evidence was improperly
excluded because Newton’s damages testimony — during which he stated that his
sex offender status made him a target while in prison — should have allowed
defendants to introduce the underlying facts of the E.G. Conviction for impeachment
purposes. Specifically, defendants contend that they should have been permitted to
demonstrate that Newton’s fears of inmate reprisal as a sex offender were not solely
related to the wrongful V.J. Conviction.
82

Defs. Mem. at 21-22. See also Defendants’ Memorandum of Law in
Support of Motions in Limine at 9-10 (seeking exclusion of failure to train
evidence), 13-14 (seeking exclusion of later searches for evidence), 17-19 (seeking
admission of the E.G. Conviction) (Dkt. No. 155).
83

See Newton, 779 F.3d at 154 n.11; id. at 156.

84

See Brown, 673 F.3d at 148.
-28-

To warrant a new trial, however, this evidentiary exclusion must have
been “a clear abuse of discretion and . . . so clearly prejudicial to the outcome of the
trial that [the court is] convinced [that] . . . a seriously erroneous result or . . .
miscarriage of justice” occurred.85 It cannot be said that the ruling here resulted in
any such injustice.
Rather, the exclusion was necessary and appropriately tailored so as to
prevent substantial prejudice at trial. The nature of the E.G. Conviction is not only
highly inflammatory but also was not probative of Newton’s truthfulness.86 Further,
given the similarity between the E.G. and V.J. Convictions, introducing the
underlying facts of the E.G. Conviction also posed a risk of jury confusion.87
Significantly, this Court admitted other details at trial which alerted the jury to the
gravity of the E.G. Conviction (including that the conviction involved a Class C
felony, was not overturned, and required Newton to serve a ten-year sentence). In
fact, during the damages phase of trial, defense counsel used most of his cross-

85

Nimely, 414 F.3d at 399 (quotation marks and citation omitted).

86

See Fed. R. Evid. 609(b). Defendants’ Rule 59(a) motion also argued
that they should have been permitted to introduce the E.G. Conviction because
Newton had made prior public misstatements about it. Adhering to my original
ruling, these statements were insufficiently probative to override the substantial
risk of prejudice if the evidence was admitted.
87

See Fed. R. Evid. 403.
-29-

examination of Newton to emphasize the existence of the prior E.G. Conviction.88, 89
For these reasons, defendants’ Rule 59(a) motion for a new trial is denied.
2.

Rule 59(e) Motion for Remittitur

Defendants’ alternative Rule 59(e) motion sought a reduction of the
jury’s eighteen million dollar Section 1983 award on the basis that “the award [wa]s
so high as to shock the judicial conscience and constitute a denial of justice.”90 On
this issue, Newton responds that the amount of his Section 1983 award is not
excessive but instead within the reasonable range of outcomes in similar suits.
As an initial matter, I note that the parties have articulated the
applicable standard of review: this Court must evaluate whether Newton’s Section
1983 award “shock[s] the judicial conscience” given that there is “no particular
88

See generally 10/19/10 Tr. at 2497:7-2501:14.

89

I also note that although the Second Circuit routinely reviews trial
court evidentiary rulings — unlike, perhaps, trial court failures to make Rule
50(c)(1) conditional rulings — defendants did not raise this evidentiary objection
on appeal. See United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001) (“[W]here
an issue was ripe for review at the time of an initial appeal but was nonetheless
foregone, the mandate rule generally prohibits the district court from reopening the
issue on remand.”); see also Boyce v. Soundview Tech. Grp., Inc., 464 F.3d 376,
385 (2d Cir. 2006) (discussing standard of review when evidentiary rulings are
challenged on appeal).
90

Defs. Mem. at 23. I do not address the portion of defendants’ Rule
59(e) motion seeking remittitur of the IIED award because, as explained, that
award was set aside by the May 12, 2011 Decision and no appeal was taken to
reinstate it.
-30-

discernable error” that “caused the jury to include in the verdict a quantifiable
amount that should be stricken.”91 To make this determination, the Court must
consider whether Newton’s award falls within the reasonable range of awards from
comparable cases.92
a.

Timing of Comparable Cases

As a preliminary matter, the current procedural posture of this case —
which calls for a decision on defendants’ Rule 59(e) motion more than five years
after its filing — presents an apparently uncharted hurdle: in comparing the
challenged jury award with similar cases, can the Court’s evaluation incorporate
awards that post-date the original Rule 59(e) briefs?
Although no case law addresses this precise question, other areas of the
law offer guidance on this point and lead me to conclude that post-briefing cases
should be considered in deciding this motion. The “shocks the conscience” standard
91

Kirsch, 148 F.3d at 165 (quotation marks and citations omitted).

92

See Guzman, 303 F.R.D. at 197. In arguing for remittitur, defendants
additionally posited that Newton’s counsel impermissibly suggested a damages
figure in his summation to the jury. However, the Second Circuit allows attorneys
to suggest dollar amounts to the jury where, as here, the jury receives an
appropriate limiting instruction. See Lightfoot v. Union Carbide Corp., 110 F.3d
898, 912 (2d Cir. 1997) (“It is best left to the discretion of the trial judge, who may
either prohibit counsel from mentioning specific figures or impose reasonable
limitations, including cautionary jury instructions.”). See also Ramirez v. New
York City Off-Track Betting Corp., 112 F.3d 38, 40 (2d Cir. 1997) (“[T]his court
has not adopted a ban on suggestions of damages amounts.”).
-31-

finds parallels in well-established concepts such as the Eighth Amendment’s
“evolving standards of decency”93 and appellate courts’ de novo review of lower
court decisions — concepts which call for evaluation based on contemporary judicial
standards.
Further, the very concept of remittitur — which requires the plaintiff to
accept either a reduced award or the gamble of a new trial — necessarily asks the
plaintiff to weigh the reduced award against the amount that he believes a new (i.e.,
present-day) jury would award. It is also telling that courts do often consider cases
from a wide temporal band in assessing comparable verdicts.94 Therefore, I
conclude that I must consider all comparable recoveries — including those from
more recent cases — in order to determine whether Newton’s award “shocks [my]
judicial conscience” today.95, 96
93

Kennedy v. Louisiana, 554 U.S. 407, 419 (2008).

94

See, e.g., Limone v. United States, 497 F. Supp. 2d 143 (D. Mass.
2007) (canvassing wrongful conviction awards issued between 1987 and 2006),
aff’d, 597 F.3d 79 (1st Cir. 2009).
95

Guzman, 303 F.R.D. at 197. However, because Newton is entitled to
interest since his jury verdict was rendered in 2010, awards from comparable cases
will be adjusted for inflation or deflation, as necessary, against their 2010 buying
power. See DiSorbo v. Hoy, 343 F.3d 172, 185 (2d Cir. 2003) (explaining the role
of inflation in the remittitur analysis). To estimate 2010 dollar equivalents, this
Court follows the approach taken by other courts in this Circuit and uses the
“Inflation Calculator” provided by the United States Department of Labor’s Bureau
of Labor Statistics. See United States Dep’t of Labor, “CPI Inflation Calculator,”
-32-

b.

Evaluation of Award

I turn now to the question of whether Newton’s Section 1983 award
does, in fact, shock the judicial conscience. Comparing other relevant awards with
the particular facts of this case, I conclude that it does. This decision is not issued
lightly. It is reached, as Rule 59(e) requires, based on a rigorous factual examination
of the authorities.
To orient this discussion, however, it is useful to recite the relevant
facts of Newton’s Section 1983 award. Newton was convicted in May 1985 on two
independent sexual assault felonies (the V.J. and E.G. Convictions), for which he
was sentenced to consecutive, indeterminate prison terms. The E.G. Conviction
carried a sentence of thirteen and one-third to forty years, rendering Newton eligible
for parole approximately thirteen years into his incarceration for that offense. Only

http://www.bls.gov/data/inflation_calculator.htm. See Tatum v. Jackson, 668 F.
Supp. 2d 584, 603 n.18 (S.D.N.Y. 2009) (collecting remittitur cases that have used
the CPI calculator).
96

On remand, both parties supplemented their Rule 59(e) briefing with
more recent jury verdicts and settlement awards from other wrongful conviction
cases. This Opinion does not, however, consider settlement awards in evaluating
the reasonableness of Newton’s jury award because “settlement values . . ., by
definition, implicate compromise” and therefore cannot be compared with jury
verdicts. Limone, 579 F.3d at 104. Accord Neyer v. United States, 845 F.2 641,
645 (6th Cir. 1988) (“We find no realistic analogy between a determination of
damages . . . after a full scale trial and a settlement figure reached in another case
without a trial.”).
-33-

the V.J. Conviction was overturned, approximately twenty-two years into Newton’s
incarceration. Accordingly, Newton stipulated at trial that he served ten years for
the lawful E.G. conviction and twelve years for his wrongful V.J. Conviction. In
this action for recovery as to the wrongful V.J. Conviction, Newton’s Section 1983
claim was based on the City’s “inadequate . . . system to account for . . . evidence,
not on the destruction of evidence.”97 At trial, Newton served as the sole witness on
damages, and he sought compensation only for his pain and suffering during his
twelve years of wrongful incarceration.
I now review a number of comparable cases. Limone v. United States
— a 2007 case which awarded one million dollars per year of incarceration to four
exonerees sentenced to life imprisonment or death for murder — offers significant
guidance as to the excessiveness of Newton’s award of $1.5 million per year.98
Newton’s incarceration, while indisputably painful, is distinguishable from that of
the Limone plaintiffs in several critical respects.
First, the Limone plaintiffs served markedly more extreme sentences
than Newton. Thus, in arriving at its award, Limone recognized that death and life

97

Newton, 779 F.3d at 158.

98

Limone, 497 F. Supp. 2d 143. The First Circuit affirmed the Limone
awards but observed that they were “considerably higher than any one of us, if
sitting on the trial court bench, would have ordered.” Limone, 579 F.3d at 84.
-34-

imprisonment are among the harshest and most emotionally trying sentences that one
can receive — observing, “[d]eath row is death row” and that “life imprisonment is
life imprisonment — not a term of years.”99 By contrast, Newton’s indeterminate
sentence allowed for the possibility of parole as early as thirteen and one-third years
into his sentence.
Second, although (like Newton) the Limone plaintiffs served part of
their incarcerations for independent convictions that were not overturned, their
wrongful convictions severely intensified the conditions of their imprisonment.100
In Limone, the plaintiffs’ lawful convictions (for gambling and interstate transport of
stolen goods) were dramatically less serious than the convictions that were
overturned (murder).101 Thus, the Limone court reasoned, the plaintiffs’ wrongful
convictions subjected them to “far harsher conditions” and “dramatically change[d]
the picture” of their incarcerations.102 For Newton, however, his lawful E.G.
Conviction — for attempted rape, a Class C felony — was substantially similar to
his wrongful conviction and therefore unlikely to have had such a dramatic impact

99

Limone, 497 F. Supp. 2d at 245.

100

See id.

101

See id.

102

Id.
-35-

on the nature of his incarceration.
Third, the wrongful convictions in Limone were the result of shockingly
egregious governmental action: “intentional misconduct, subornation of perjury,
conspiracy, [and] the framing of innocent men”103 — a level of misconduct not
present in this case, which was based on defendants’ poorly-administered evidence
management system.104 Further, Limone’s award of one million dollars per year is
particularly instructive because it was rendered in a bench trial and thus, was
grounded in the court’s survey of comparable verdicts.105
Verdicts in other comparable cases have centered around one million
dollars or less per year of wrongful incarceration — providing further evidence as to

103

Id. at 153. Accord id. at 245.

104

See Newton, 779 F.3d at 155.

105

Defendants posited that Limone is inapplicable because (1) New York
City (where Newton resides) has a higher cost of living than Boston (a city within
the First Circuit, where Limone was decided) and (2) adjusting for inflation, the
Limone awards were worth more than one million dollars per year in 2010.
Although the Court is sympathetic to these financial realities, a similar argument
was rejected by the First Circuit in Limone, which observed that the losing party’s
“parochial insistence that the lower court should have restricted any inquiry to
cases that arose within the borders of Massachusetts is incorrect as a matter of
law.” 579 F.3d at 104. Further, even accounting for inflation, the Limone awards
— worth approximately $1.05 million per year in 2010 and compensating
significantly aggravated circumstances of incarceration — nevertheless support the
conclusion that Newton’s award should not have exceeded one million dollars per
year.
-36-

the excessiveness of the jury award in this case. For example, in Restivo v. Nassau
County, the plaintiffs — whose rape convictions similarly were overturned by DNA
evidence — were awarded eighteen millions dollars in 2014 for eighteen years of
wrongful incarceration (or approximately $920,000 per year in 2010 dollars).106 In
Waters v. Town of Ayer, the plaintiff was awarded $10,729,000 for approximately
eighteen-and-a-half years’ incarceration (which amounts to approximately $600,000
per year in 2010 dollars).107 This award, unlike Newton’s, included compensation
for physical illnesses and injuries resulting from the wrongful incarceration.108 A
survey of other similar cases provides further indication that an award of one million
dollars per year of incarceration constitutes the upper boundary for a reasonable
award under the circumstances presented by this case.109

106

No. 06 Civ. 6720, 2015 WL 5796966 (E.D.N.Y. Sept. 30, 2015).
Accord Joseph Berger, 2 Men Get $18 Million Each in Wrongful Conviction Case,
N.Y. Times (Apr. 18, 2014), http://nyti.ms/1eGaAXo.
107

No. 04 Civ. 10521, 2009 WL 3489372 (D. Mass. Sept. 17, 2009).

108

See id. at *3.

109

See Connick v. Thompson, 563 U.S. 51, 54 (2011) (observing that jury
had awarded fourteen million dollars for eighteen years’ wrongful incarceration,
including fourteen years spent on death row); Singletary v. District of Columbia,
766 F.3d 66, 70 (D.C. Cir. 2014) (observing that jury had awarded $2.3 million for
ten years of confinement on wrongful parole revocation); Newsome v. McCabe,
319 F.3d 301 (7th Cir. 2003) (observing that jury had awarded fifteen million
dollars for fifteen years’ incarceration on wrongful murder conviction); Jenkins v.
Baldwin, 801 So. 2d 485, 491 (La. App. 2001) (declining to reach issue of
-37-

On remand, Newton offers several cases for the proposition that $1.5
million per year nevertheless is reasonable compensation for the circumstances of
his case.110 However, all of these cases are factually distinguishable — most of
which on the basis that they included aggravating factors not present for Newton.
For example, Newton cites Jimenez v. City of Chicago, in which the
jury awarded the plaintiff twenty-five million dollars for sixteen years’ wrongful
imprisonment (which amounts to slightly more than $1.5 million per year in 2013
dollars or the slightly lesser amount of $1.4 million per year in 2010 dollars).111
However, the wrongful incarceration addressed in Jimenez is markedly different
from Newton’s incarceration in at least two ways. First, the Jimenez plaintiff was
tried and convicted as an adult at the age of fifteen, serving his entire sixteen years in
adult prison.112 It cannot be ignored that a juvenile placed in adult prison is likely to

excessiveness of twelve million dollar state court verdict for thirty years’
incarceration). Cf. Parish v. City of Elkhart, 702 F.3d 997, 999 (7th Cir. 2012)
(ruling that jury award of “only $73,125 in compensatory damages . . . for the eight
years he was wrongly imprisoned” was “astoundingly low for cases of wrongful
conviction,” particularly as the plaintiff had “presented the court with evidence
indicating that the average jury award was nearly $950,000 per year of wrongful
imprisonment, with a median of nearly $790,000 per year”).
110

See 1/29/16 Letter from Plaintiff’s Counsel John Schutty to the Court
(Dkt. No. 234).
111

732 F.3d 710 (7th Cir. 2013).

112

See id. at 714.
-38-

experience particularly severe trauma. Second, no part of the Jimenez plaintiff’s
sentence was for a lawful conviction — and thus, the Jimenez plaintiff lacked any
“lawful” time during which he might have acclimated to prison life.113
Likewise, the award in another case cited by Newton — Dominguez v.
Hendley — is again distinguishable due to the plaintiff’s youth and lack of criminal
history at the time of his wrongful conviction.114 In Dominguez, the plaintiff was
convicted of sexual assault at the age of fifteen but ultimately exonerated by DNA
evidence.115 He served four years for this conviction — the majority of this period
as a minor and with no prior criminal record — and was ultimately awarded nine
million dollars in 2008 (or approximately $2.25 million per year of incarceration) in
compensation.116

113

See Green v. Baca, 226 F.R.D. 624, 657 (C.D. Cal. 2005) (collecting
cases which recognize that “a person who has previously been incarcerated may
suffer less damage as a result of a subsequent wrongful incarceration”).
114

545 F.3d 585 (7th Cir. 2008).

115

Id. at 588.

116

See id. Newton also cites the high profile case of Jeffrey Deskovic,
who was convicted at the age of sixteen for rape and murder — largely on the basis
of a coerced confession. See Fernanda Santos, DNA Evidence Frees a Man
Imprisoned for Half His Life, N.Y. Times (Sept. 21, 2006),
http://www.nytimes.com/2006/09/21/nyregion/21dna.html. In Deskovic’s civil
suit, the jury awarded him twenty-five million dollars in compensatory damages
for seventeen years of wrongful incarceration. See Jonathan Bandler, Deskovic
awarded $40M in wrongful conviction case, Lohud (Oct. 24, 2014),
-39-

The award in Smith v. City of Oakland also is inapposite because it
addressed an extremely short period of incarceration.117 In Smith, the plaintiff was
subjected to a humiliating arrest and thereafter wrongfully convicted and
incarcerated for four-and-a-half months.118 The jury originally awarded the plaintiff
five million dollars for the emotional distress he had suffered. Subsequently, the
district court reduced the jury’s award from five to three million dollars.119 In doing
so, the court observed that “[w]here the period of incarceration is shorter (e.g., less
than one year), proportionately larger awards (measured by annualizing the award)
have been rendered, presumably reflecting [the] observation that the injury from

http://lohud.us/1tPdtMH. The Deskovic case is distinguishable, however, due to
the plaintiff’s youth, level of governmental misconduct involved, and media
attention it received.
117

538 F. Supp. 2d 1217, 1240-41 (N.D. Cal. 2008).

118

See id.

119

See id. at 1243.
-40-

incarceration may be more intense towards the beginning.”120, 121
Further, Newton points to White v. McKinley,122 in which the plaintiff
— falsely convicted of molesting his daughter — was awarded approximately $12.4
million in pain and suffering damages in 2010 for the five-and-a-half years he spent

120

Id. at 1242 (collecting cases). Smith is also instructive regarding the
stigma that Newton reportedly experienced while in prison as a result of his status
as a convicted sex offender. Smith observed that “[t]he facts [of Smith], while
compelling, do not warrant such an extraordinary result [as the original jury
award]. For instance, Mr. Smith was not . . . stigmatized by a wrongful conviction
of e.g., rape.” Id. at 1243. The same is true, at least in part, for Newton because
any stigma he experienced while incarcerated is likely to have been based on his
lawful, as well as unlawful, sexual assault convictions.
121

Newton cites several additional cases that are of minimal relevance
because they involved short periods of unlawful custody. For example, Newton
argues that a $75,000 Section 1983 award for “several days” of plaintiff’s
incarceration should be interpreted as an annualized award of tens of millions per
year. Gentile v. County of Suffolk, 926 F.2d 142, 154 (2d Cir. 1991). This is a
distortion of both the facts and implications of Gentile, which compensated
plaintiffs for “pain and suffering accompanying an extended period of prosecution,
several days of false imprisonment for one of the plaintiffs, psychological trauma
induced by the improper exercise of the police and prosecutorial apparatus, loss of
job opportunities owing to the effects of municipal harassment.” Id. Accordingly,
I cannot extrapolate what the Gentile plaintiffs would be entitled to had they
endured a longer period of incarceration. See also Gardner v. Federated Dep’t
Stores, 907 F.2d 1348, 1350 (2d Cir. 2001) (compensating approximately eight
hours of unwarranted confinement under state law); Graham v. City of New York,
No. 08 Civ. 3518, 2015 WL 5258741, at *26 (E.D.N.Y. Sept. 10, 2015)
(compensating “approximately one hour” of loss of liberty, physical injury, and
past and future emotional harm).
122

605 F.3d 525 (8th Cir. 2010).
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in prison (or approximately $2.5 million per year).123 In White, however, the
damages evidence included, inter alia, the fact that the plaintiff had been physically
abused while in prison.124 No such aggravating evidence was presented by Newton
(but rather, Newton testified that he did not sustain any physical injuries while
incarcerated).
Likewise, the 2009 verdict in Johnson v. Guevera — another case cited
by Newton — does not offer a compelling comparison because it involved damages
evidence that was not offered at Newton’s trial.125 In Johnson, the plaintiff was
awarded twenty-one million dollars in compensation for eleven-and-a-half years of
incarceration (which amounts to approximately $1.82 million per year in 2009
dollars or $1.85 million per year in 2010 dollars).126 It appears, however, that expert
testimony was offered regarding Johnson’s ongoing mental health problems.127

123

The jury awarded plaintiff a lump sum of fourteen million dollars in
actual damages, which seems to have included $1.6 million in economic damages.
See White v. McKinley, No. 05 Civ. 0203, 2009 WL 813001, at *22 (W.D. Mo.
Mar. 26, 2009).
124

See id.

125

No. 05 Civ. 1042 (N.D. Ill.).

126

See id. at Dkt. No. 285 (“Finding and Direction Pursuant to Rule
54(b)”) (June 6, 2009).
127

See id. at Dkt. No. 213 (granting plaintiff’s motion in limine regarding
admission of expert psychological testimony at trial) (Apr. 29, 2009).
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Further, the Johnson verdict may have reflected the jury’s valuation of the plaintiff’s
future, as well as past, harms — compensation that was categorically foreclosed for
Newton because he sought only past pain and suffering for his years of wrongful
incarceration.128
The Court recognizes that “[a]ssigning dollar amounts to pain and
suffering is an inherently subjective determination.”129 However, the Court also
recognizes, as it must, that each case involves unique factual circumstances which
bear on the reasonableness of the damages awarded. Accordingly, in comparing the
facts of Newton’s incarceration with those of other wrongful incarceration cases, it is
apparent that the eighteen million dollar award in this case — which falls within the
upper-tier of wrongful incarceration awards — was excessive in light of the evidence
submitted to the jury.
As the Court’s review of comparable cases has indicated, where juries
have awarded more than one million dollars per year of incarceration, they have
128

Newton also cites a 2006 decision awarding — without further
explanation — two million dollars for pain and suffering prior to June 30, 1991
and eleven million dollars for damages after that date (including future damages)
for nine-and-a-half years’ imprisonment. See Sarsfeld v. City of Marlborough, No.
03 Civ. 10319, 2006 WL 2850359 (D. Mass. Oct. 4, 2006). The lack of
information as to how this breakdown was calculated makes it impossible to
compare this award with Newton’s verdict.
129

Dwyer v. Deutsche Lufthansa, AG, 686 F. Supp. 2d 216, 221
(E.D.N.Y. 2010).
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generally done so in cases involving aggravating circumstances and evidence not
present in Newton’s case. In particular, Newton’s wrongful incarceration occurred
while he was an adult, followed a decade of lawful incarceration for a similar felony,
and was the result of “poor administration of [the City’s] evidence management
system,” rather than egregious governmental misconduct.130 Further, at trial, Newton
sought compensation only for his past pain and suffering, served as the sole witness
on damages, and testified that he suffered no physical injury or abuse while in prison.
In sum, while the “shocks the judicial conscience” standard involves a
review of verdicts (not settlements) from similar cases, the analysis cannot, at the end
of the day, be based solely on mathematical calculations.131 Rather, the Court must
consider other verdicts in the context of all circumstances in the case at issue —
including a review of all of the evidence before the Court and jury during the trial —
and then decide whether, in the exercise of her discretion, she believes that the jury
award is excessive and should be reduced as a matter of fairness and justice to all of
the parties in a litigation. This is a heavy responsibility, and one that is rarely
exercised — but in my view, under the totality of circumstances, this verdict requires
remittitur.

130

Newton, 779 F.3d at 155.

131

Guzman, 303 F.R.D. at 197.
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Thus, I find that the compensatory damages in this case should not have
exceeded one million dollars per year of imprisonment. Wrongful convictions are a
serious and intolerable aspect of the criminal justice system. However, in this
instance, the principles of justice require a reduction of the damages that were
awarded. For these reasons, defendants’ Rule 59(e) motion is granted and Newton is
order to accept either a reduced Section 1983 award in the amount of twelve million
dollars, or a new trial on damages.132
VI.

CONCLUSION
For the foregoing reasons, defendants’ Rule 59(a) motion for a new trial

is DENIED and defendants’ Rule 59(e) motion for remittitur is GRANTED. The
Court orders remittitur of Newton’s Section 1983 award in excess of twelve million
dollars.133 If Newton does not accept this reduced award, a new trial will be ordered
132

Newton has argued that a new trial on damages only would be unduly
prejudicial because the new jury would not hear all of the evidence that had been
presented on liability. This argument is unavailing. Rule 59 empowers this Court
to order a new trial on “all or some of the issues.” Fed. R. Civ. P. 59(a).
Moreover, as discussed, the Second Circuit has resolved the issue of defendants’
Section 1983 liability, thereby foreclosing re-litigation of this issue. In the event of
a new damages trial, this Court will compel, as necessary, the appearances of
relevant witnesses. See Fed. R. Civ. P. 45(c).
133

Newton is also entitled to the post-verdict interest that has accrued on
these twelve million dollars since October 19, 2010 (the date of the jury’s Section
1983 verdict). See Restivo, 2015 WL 5796966, at *2 (amending judgment, after
denial of defendants’ motion for a new trial, to include post-verdict interest
accruing from the date of the jury’s liability verdict).
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- Appearances For Plaintiff:
John F. Schutty, III., Esq.
Law Office of John F. Schutty
271 Main Street, Second Floor
East Chester, NY 10709
[phone]
Eric J. Hecker, Esq.
Cuti Hecker Wang LLP
305 Broadway, Suite 607
New York, NY 10007
[phone]
David T. Goldberg, Esq.
Donahue & Goldberg LLP
99 Hudson Street, Eighth Floor
New York, NY 10013
[phone]
For Defendants:
Arthur G. Larkin, III
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, NY 10007
[phone]

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