Whalley v. Blazick et al

Filing 141

MEMORANDUM OPINION (Order to follow as separate docket entry) re 126 MOTION for New Trial filed by Michael J. Whalley, Sr. Signed by Magistrate Judge Martin C. Carlson on September 15, 2022. (kjn)

Case 4:18-cv-01295-MCC Document 141 Filed 09/15/22 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL J. WHALLEY, SR.,
Plaintiff,
v.
C.O. BLAZICK, et al.,
Defendants.

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Civil No. 4:18-CV-1295

(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Statement of the Facts and of the Case
This case, which comes before us for consideration of a motion for new trial

filed by the plaintiff, (Doc. 126), is a civil action brought by Michael Whalley, a
former inmate at State Correctional Institution Waymart (SCI Waymart), against
several former corrections officers of the institution. In this lawsuit, Whalley alleged
the defendants violated his Eight Amendment right to be free from cruel and unusual
punishment when they used excessive force against him during an altercation at SCI
Waymart while he was incarcerated.
The facts of this case arose from an encounter between correctional staff at
SCI Waymart and the plaintiff, which quickly escalated into a physical
confrontation. At the time the incident took place, Whalley was an inmate

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incarcerated at SCI Waymart in Wayne County Pennsylvania. On August 14, 2016,
Whalley and Defendant Kranick were in the day room at the facility when the
plaintiff asked Kranick if he could remove a letter from the mailbox. Kranick told
Whalley he did not have the key and Whalley called him a liar. The exchange
escalated, and Whalley was taken to the Designated Quiet Area (“DQA”), a closed
room where inmates are taken to calm down, by Defendants Kranick, Marvin, and
Blazick. This is where the events forming the basis of the dispute in this case
occurred.
In advance of trial, the parties summarized their versions of events as follows1:
Whalley claimed that the corrections officers began violently assaulting him by
cursing, kicking, punching, and stomping him while he laid on a mattress in the DQA
without resisting or fighting back. The defendants claim that, after placing Whalley
in the DQA, Kranick returned to his post in the day area but returned when he heard
Whalley screaming and encountered the plaintiff in a fighting stance, threatening
him and wanting to fight. Kranick called an emergency code for backup and
physically restrained the plaintiff with the help of Marvin and Blazick. The
defendants argue that Whalley continued to struggle and fight the officers as they
attempted to subdue him.

1

The background facts are pulled from the parties’ respective briefs during the
summary judgment phase of this litigation. (Docs. 33, 34, 36).
2

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Whalley’s complaint proceeded to trial only as to Whalley’s Eight
Amendment claims against Defendants Kranick, Marvin, and Blazick upon this
dispute of material facts as to the events which took place during the altercation. A
jury trial was held on February 14, 2022. At trial, the parties each presented
competing evidence as to the nature of the altercation between Whalley and the
defendants, as well as the nature of Whalley’s alleged injuries.
Whalley testified that, after being taken to the DQA, Defendant Kranick was
taunting him and asking him to fight, to which Whalley replied, “you hit me first . .
. I dare you.” (Doc 131, 80:1-13). Then Kranick “came barreling in” to the DQA
room and he, Marvin, and Blazick grabbed him and started assaulting him. (Id.,
80:18-19; Doc. 132, 204:18). Whalley testified that the defendants handcuffed him,
slammed him up against the wall, beat him, punched him, kicked him, and that
Blazick threw a “flying knee” at him. (Doc. 131, 81:2-14). According to Whalley,
the defendants then wrapped a towel around his head and flung it around, slamming
it into a wall, causing him to black out. (Id., 82:19-83:3). Then, after restraining him
on a gurney, Kranick kicked him in the groin at least four times, then ordered the
other corrections officers to raise him up as high as they could lift him and drop him
on the ground numerous times, slamming his head on the concrete and causing him
to almost black out again. (Id., 84:3-25). He also testified that the defendants sprayed
him with OC spray and put him in a hot shower, causing his face to become swollen,
3

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and that he was having trouble breathing and was spitting up blood. (Id., 86:14-15).
According to Whalley’s testimony, he was then strapped in four-point restraints for
almost a week and left unattended. (Id., 86:16-20).
The plaintiff also testified that he suffered an array of injuries in the incident
which essentially form the basis of the motion for a new trial. He claims he suffered
injuries to his head, including a traumatic brain injury, along with bruises, cuts, and
abrasions. Whalley testified that, immediately following the incident, he was having
trouble with his short-term memory, was in excruciating pain, could barely walk,
and was urinating blood and coughing up blood. (Doc. 131, 106: 23-107:1). He also
claimed to be suffering from flashbacks and having nightmares about the incident.
(Id., 107:3-9). Whalley maintained that he still has problems urinating and has neck
and spine pain, flashbacks and nightmares, and short-term memory problems. (Id.,
123:4-19), as well as a deformity in his rib. (Doc. 132, 255:19-20). In addition to his
testimony, the plaintiff presented a DC-481 Form, or medical release summary,
authenticated by expert witness Dr. Stephen Wiener2 showing that a prison
psychiatrist diagnosed Whalley with “mild neurocognitive disorder due to traumatic

2

Dr. Wiener was unavailable to testify at the trial, however he had previously
testified under oath as to the contents of the DC-481 form. In a pre-trial
memorandum and order, the Court ruled that portions of Dr. Wiener’s prior
testimony would be admissible at trial to authenticate the contents of the DC-481
form, subject to a limiting instruction provided by the Court. (See. Doc. 99, at 13;
Doc 131, 46:21-48:3).
4

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brain injury,” on December 12th, 2016 (Doc. 131, 56:2-19). Photographs were also
entered into evidence reflecting the injuries that Whalley claimed were documented
by the medical team at SCI Waymart on the day of the incident. The plaintiff argues
that these photographs represent at least thirteen discrete and undisputed injuries,
including bruises, cuts, and abrasions.
As to the defendants’ description of events, Defendant Kranick testified that,
after taking Whalley to the DQA and leaving him there, he heard a loud screeching
sound and responded to the DQA to find out what was going on. (Doc. 132, 351:916). When he returned, he found Whalley in a “fighter’s stance” and Whalley said
“Sarge, me and you, right now.” (Id., 351:19-23). Fearing he was going to be
attacked, Kranick testified that he grabbed Whalley by the shirt and took him to the
floor. (Id., 353:12-17, 355:4-6). According to Kranick, Whalley was not complying
with orders while he attempted to place him in metal restraints (Id., 357:6-8).
Whalley continued to “wriggle and writhe” on the mattress on the floor of the DQA
while Kranick attempted to get control of his wrists so he could be handcuffed. (Id.,
360:10-15). Whalley was eventually placed in a Reeves Sleeve on a gurney with his
arms and legs in belted restraints. (Id., 361:7-11, 361:25-362:3). Kranick testified
that he never kicked or punched Whalley or slammed his head into a wall and did
not witness anyone dropping Whalley while he was in the Reeves Sleeve. (Id.,
366:18-367:18, 370:1-5). Kranick then said Whalley was wheeled to a “tie-down
5

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room” and tied down to a bed in four-point restraints where he was evaluated by
medical personnel. (Id., 379:2-5). Kranick testified that plaintiff did not report any
injuries to him at that time. (Id., 379:6-8). Kranick’s testimony regarding the events
that transpired was corroborated by an incident report read by Defendant Blazick at
trial,3 (Id., 418:9-428:22), and by Defendant Marvin’s testimony. (Doc. 133, 463:16483:23).
Following three days of testimony, on February 17th, 2022, the jury found that
the plaintiff had proven by a preponderance of the evidence that excessive force was
used intentionally and maliciously against Whalley by Defendant John Kranick, but
not by the other two defendants. (Doc. 116). The jury then found that the plaintiff
had not proven by a preponderance of the evidence that Kranick’s use of excessive
force caused an injury to the plaintiff and awarded no damages. (Id.) The plaintiff
filed the instant motion for new trial, limited to the issue of damages, on March 14th,
2022, arguing that the jury’s finding that the excessive force caused no injury to the
plaintiff, despite finding Kranick liable for using excessive force, was against the
great weight of the evidence presented at trial, entitling him to a new trial. (Doc.
128). The motion is fully briefed and ripe for disposition. (Docs. 128, 136, 140). For

3

Blazick read aloud the incident report under Rule 803.5 as a past recollection
recorded. Blazick made the report when the matter was fresh in his memory, but due
to a brain injury he suffered in 2017, was unable to recall well enough to testify
about it. (Doc. 132, 419:23-426:20).
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the reasons that follow, the plaintiff’s motion for a new trial shall be denied, but the
jury’s verdict shall be augmented to award nominal damages of $1 to the plaintiff.
II.

Discussion
A. Motion for New Trial – Standard of Review
Rule 59 of the Federal Rules of Civil Procedure, which concerns the power of

a court to grant a new trial or to alter or amend a judgment, provides, in pertinent
part, as follows:
(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant
a new trial on all or some of the issues – and to any party – as
follows:
(A) after a jury trial, for any reason for which a new trial
has heretofore been granted in an action at law in federal
court....
...
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend
a judgment must be filed no later than 28 days after the entry of the
judgment.
Fed. R. Civ. P. 59. Federal courts are hesitant to order new trials, and the Third
Circuit has explained that “the district court’s power to grant a new trial motion is
limited to those circumstances where a miscarriage of justice would result if the
verdict were to stand.” Olefins Trading, Inc., Han Yang Chem. Corp., 9 F.3d 282,
290 (3d Cir. 1993) (internal quotation marks omitted). As one leading commentator
has emphasized, a motion for a new trial must “state with particularity the grounds
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for seeking the order,” and a motion will be found “defective if it states no grounds
whatever, or if the statement of grounds is purely pro forma.” 11 Federal Practice &
Procedure § 2811 (3d ed.) (quoting Parts and Elec. Motors, Inc. v. Sterling Elec.,
Inc., 826 F.2d 712 (7th Cir. 1987) (internal quotations removed). The decision of
whether to grant a new trial is left to the sound discretion of the trial judge. Todd v.
Luzerne County Children & Youth Servs, No. 3:04-cv-2637, 2011 WL 841429, at
*2

(M.D.

Pa.

Mar.

8,

2011).

Some

instances

where

courts

have

granted motions for new trials include where: (1) there has been a significant error
of law, to the prejudice of the moving party; (2) the verdict is against the weight of
the evidence; (3) the size of the verdict is against the weight of the evidence; or (4)
counsel engaged in improper conduct that had a prejudicial effect on the jury. Maylie
v. Nat'l R.R. Passenger Corp., 791 F. Supp. 477, 480 (E.D. Pa. 1992).
In considering a motion for a new trial, a court should proceed with caution
and remain “mindful that it should not simply substitute its own judgment of the
facts and the credibility of the witnesses for those of the jury. Rather, the court
should grant a new trial ‘only when the great weight of the evidence cuts against the
verdict and a miscarriage of justice would result if the verdict were to
stand.’” Id. (quoting Leonard v. Stemtech International, Inc., 834 F.3d 376, 386 (3d
Cir. 2016); see also Springer v. Henry, 435 F.3d 268, 274 (3d Cir.
2006); Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1352-53 (3d Cir. 1991).
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“[W]here the evidence is in conflict, and subject to two or more interpretations, the
trial judge should be more reluctant to grant a new trial.” Klein v. Hollings, 992 F.2d
1285, 1295 (3d Cir. 1993) (citation omitted). “This limit upon the district court's
power to grant a new trial seeks to ensure that a district court does not substitute its
judgment of the facts and the credibility of the witnesses for that of the jury.” Delli
Santi v. CNA Ins. Cos., 88 F.3d 192, 201 (3d Cir. 1996) (quoting Fineman v.
Armstrong World Indus., Inc., 980 F.2d 171, 211 (3d Cir. 1992)). Accordingly, the
Third Circuit has instructed that “a District Court reviewing a jury verdict has an
‘obligation ... to uphold the jury's award if there exists a reasonable basis to do
so.” Evans v. Port Auth. of N.Y. and N.J., 273 F.3d 346, 351-52 (3d Cir. 2001)
(quoting Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989)).
B. The Defendant’s Motion for a New Trial Should Be Denied.
1. The Jury’s Verdict Was Well-Supported by The Greater
Weight of the Evidence.
The defendant has moved for a new trial, limited to the issue of damages,
alleging that the jury’s verdict on damages went against the great weight of the
evidence presented at trial, resulting in a manifest injustice to the plaintiff. The
plaintiff specifically argues that the verdict, finding that the plaintiff had proven by
a preponderance of the evidence that Defendant Kranick violated Whalley’s
Constitutional rights by using excessive force against him, but awarding no
compensatory damages, was contrary to the law on causation, the instructions given
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by the court, and the undisputed evidence that the plaintiff “sustained” injuries as a
result of Defendant Kranick’s use of excessive force.
The Second Circuit Court of Appeals analyzed a similar case, where a jury
found a Constitutional violation but found the plaintiff had suffered no compensable
damages as a result. As to whether this verdict is inconsistent, our sister circuit noted:
In seeking consistency, we bear in mind that a jury is entitled to believe
some parts, and to disbelieve other parts, of the testimony of any given
witness. See, e.g., id.; United States v. Gleason, 616 F.2d 2, 15 (2d
Cir.1979), cert. denied, 444 U.S. 1082, 100 S.Ct. 1037, 62 L.Ed.2d 767
(1980). Here, the fact that the jury credited plaintiffs’ accounts of the
officers’ invasion of Robinson’s home in January 1989 did not require
it to believe plaintiffs’ evidence as to either the fact or the extent of their
emotional suffering. We thus see no inconsistency.
Robinson v. Cattaraugus Cty., 147 F. 3d 153, 160 (2d Cir. 1998). Similarly, here,
the jury was entitled to credit Whalley’s testimony regarding Kranick’s use of
excessive force, perhaps by moving on Whalley while he was in the DQA, but not
credit his assertions regarding his injuries. On this score:
[A] jury finding of excessive force does not automatically entitle a
claimant to compensatory damages as a matter of law. See id. at 103.
In certain circumstances, a jury could reasonably determine that
compensatory damages are inappropriate even where excessive force
was used. See, e.g., Haywood v. Koehler, 78 F.3d 101, 104 (2d
Cir.1996) (“[W]e have ruled that a finding of excessive force does not,
as a matter of law, entitle the victim to an award of compensatory
damages.”). For instance, where a victim's claims of injury lack
credibility, or where the injuries lack monetary value, a jury could
reasonably award nominal damages. See, e.g., Briggs v. Marshall, 93
F.3d 355, 360 (7th Cir.1996). Second, where both justified and
unjustified force were used, the jury could conclude that the injuries
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resulted from the justified use of force. See, e.g., Gibeau v. Nellis, 18
F.3d 107, 110 (2d Cir.1994).
Amato v. City of Saratoga Springs, N.Y., 170 F.3d 311, 314 (2d Cir. 1999). In our
view, the jury was free to conclude that Kranick had used excessive force when he
initiated physical contact with the plaintiff by taking Whalley down in the DQA but
also find that Whalley’s claims of injury lacked credibility or resulted from
Whalley’s own actions. The trial record amply supports this inference that the jury
found that Kranick’s initial use of force was unnecessary and therefore was
excessive, as evidenced by a question posed by the jury during deliberations asking
for the definition of “excessive” and whether “excessive” is the same as
“unnecessary.” (Doc. 118, at 3). Following a consultation with the parties, the Court
directed the jury to the instructions, which provided the definition of excessive force
based on the Third Circuit Model Instructions. (Doc. 134, 632:10-633:10; Doc. 12,
at 11-13). Instructed in this fashion the jury then returned a verdict which found that
Kranick, as the corrections officer who first engaged with Whalley in the DQA,
engaged in force that was unnecessary under the circumstances and, in the jury’s
view, excessive.
However, this finding that Kranick engaged in excessive force against the
plaintiff was not inconsistent with its decision to decline to award compensatory
damages. The plaintiff asserts that “the uncontested evidence adduced through
contemporaneous pictures taken of Plaintiff’s condition by the DOC Medical
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Department showed that Plaintiff suffered 13 discrete physical injuries.” (Doc. 128,
at 3).
We disagree. As discussed below, the jury was entitled to disbelieve
Whalley’s testimony relating to the extent and origin of these injuries since, quite
frankly, much of that testimony was incredible, internally inconsistent and
contradicted by the plaintiff himself. Further, the evidence of Whalley’s injuries was,
in fact, contested at trial. The defendants presented substantial, and credible,
evidence that his injuries were not as severe as Whalley asserted and were caused
by his own actions. And, as previously stated, “where the evidence is in conflict, and
subject to two or more interpretations, the trial judge should be more reluctant to
grant a new trial.” Klein v. Hollings, 992 F.2d at 1295.
In fact, in our view, the defense’s best witness contradicting Whalley’s alleged
injuries was Whalley himself, whose testimony regarding his injuries was often
incredible, inconsistent or admittedly untrue. For example, Whalley testified that he
was OC sprayed then taken to the shower room where he was forced under hot water
until his face became swollen, he couldn’t breathe, and he was spitting up blood.
(Doc. 131, 86:10-15). He also stated that the defendant kicked and stomped him, hit
him with a “flying knee” while he was handcuffed and used a towel to “sling shot”
his head against a wall, (Id., 81:2-14, 81:19-83:3), and placed in him a Reeves Sleeve
and dropped him numerous times from a great height on his face. (Id., 84:19-22).
12

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However, on cross-examination, when confronted with statements he made
during his deposition which never mentioned the use of OC spray, Whalley testified
that, in fact, there was no OC spray used during his altercation with the defendants,
but that it was a separate incident days later. (Doc. 132, 308:16-25, 309:1-5). The
photo evidence also demonstrated no blood on Whalley’s shirt, despite his testimony
that he was spitting up blood – Whalley eventually testified that medical had changed
his clothes – and showed relatively little evidence of any head trauma, despite
Whalley’s allegations that a towel was used to violently sling shot his head against
a wall. Further, the medical report summary prepared by a witness, former security
lieutenant Quinn, during the course of his investigation of the incident noted only
superficial abrasions to Whalley’s chest and back, a small bruise on top of the right
foot, injuries to the torso and chest, and groin discomfort. (Doc. 133, 583:2-17).
Given this evidence which directly contradicted Whalley’s injury claims, the
jury reasonably found that Whalley’s contradictory and inconsistent testimony, the
photos presented into evidence, as well as the medical record, did not support
Whalley’s version of events, alleging that he was brutally beaten to the point of
unconsciousness. Further, Whalley testified that he had several conditions that
existed prior to the incident, including a cervical injury he sustained in a car accident
in 2011, (Doc. 132, 253:7-9), a prior PTSD diagnosis, (Id., 252:2-6), and a prior rib
and neck injury. (Id., 255:21-22, 256:11-16).
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The parties spend much time in their briefs discussing the authenticity of the
photographs purported by Whalley to be taken by DOC Medical Department, with
the plaintiff alleging this is uncontested evidence showing that Whalley suffered “13
discrete physical injuries.” In our view, even if it was uncontroverted that the images
displayed injuries to Whalley, the greater weight of the evidence supported the jury’s
finding that the plaintiff failed to meet his burden of proving to the jury that these
injuries were caused by Kranick’s actions. Although the plaintiff now asserts that
the defendants gave no alternative explanation for the physical injuries, there was,
in fact, a large body of evidence that allowed a jury to find that these injuries were
caused by Whalley’s own actions. Not only did the defendants all testify that
Whalley exhibited truculent, belligerent behavior in resisting the officers who were
attempting to restrain them, there was also evidence that Whalley remained
belligerent and physically confrontational for many hours while restrained. The
constant watch sheet presented into evidence by the defendants demonstrates
Whalley remained aggressive and confrontational to prison staff while he was in
four-point restraints. The log reflected, “inmate threatening staff, I will kill you all,”
referenced “inmate pulling on restraints” several times and that he was “rolling side
to side,” and documents Whalley saying “my fists are licensed weapons,” and “I

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have been playing the system forever, you’ll see.” (Doc. 133, 547:1-549:19).4 And
the defendants specifically argued, in a way that the jury found persuasive, that the
injuries in the photographs presented by the plaintiff were caused by Whalley. For
example, one photograph showed a large bruise on Whalley’s torso, which he argued
was a result of Kranick stomping on him, but which the defendants argued, and the
evidence strongly suggested, was caused by Whalley straining against the belt while
he was in four-point restraints. (See Doc. 132, 276:23-277:9).
The plaintiff also avers that the wording of the verdict sheet imposed a greater
burden upon the plaintiff to prove that Kranick “caused” the injury to the plaintiff
rather than simply that the plaintiff “sustained” an injury during the incident. At the
outset, we note that, counterintuitively, the plaintiff does not argue the verdict sheet
was erroneous or objectionable. Nevertheless, we highlight that, as a courtesy to
counsel and parties, the Court provides the proposed jury instructions and verdict

4

The plaintiff asserts that these “post-injury” statements from the constant watch
log were “fantastical” and the result of a severe beating, and thus should be examined
under Rule 403 as their prejudicial effect outweighs their probative value. The
plaintiff raised concerns about these statements at trial, stating they were irrelevant
to the issues in the case because they were statements made by Whalley in the days
following the incident and while he was medicated. (Doc. 133, 531:5-14). The Court
allowed the introduction of the statements of the plaintiff as a party opponent as
reported by the officer in the immediate aftermath of the incident. The Court found
the statements in the immediate aftermath of the incident were relevant to questions
of whether Whalley could reasonably have been perceived as presenting a threat to
others at that time. Thus, the statements were properly admitted. (Doc. 133, 532:1925).
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sheet prior to the start of trial so that the parties may have the opportunity to review
in advance and object to any language they find prejudicial. Despite having weeks
to consider the verdict form no such objections were lodged. On this score, the Third
Circuit has noted:
Rule 30 of the Federal Rules of Criminal Procedure provides, in
relevant part, that
No party may assign as error any portion of the charge or
omission therefrom unless that party objects thereto before
the jury retires to consider its verdict, stating distinctly the
matter to which that party objects and the grounds of the
objection.
Fed.R.Crim.P. 30. “The purpose of this provision is to provide the
district court an opportunity to correct potential problems in jury
instructions before the jury begins its deliberations.” United States v.
Russell, 134 F.3d 171, 178 (3d Cir.1998). See also United States v.
Logan, 717 F.2d 84, 91 n. 13 (3d Cir.1983) (“Rule 30 has the manifest
purpose of avoiding whenever possible the necessity of a timeconsuming new trial by providing the trial judge with an opportunity to
correct any mistakes in the charge before the jury begins to deliberate.”)
United States v. Jake, 281 F.3d 123, 130 (3d Cir. 2002). The plaintiff failed to object
to the language of the verdict sheet at trial and, consequently, he has waived this
challenge to the language in his request for a new trial. Further, the jury instruction
and verdict sheet reflect the language of the Third Circuit’s model instructions on
compensatory damages in §1983 cases, the use of which simply cannot be
considered error, let alone plain error. See U.S. v. Peterson, 622 F.3d 196, 208 (3d
Cir. 2010) (“We have a hard time concluding that the use of our own model jury
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instruction can constitute error”); Berrios v. Gentile, No. 12-CV-7245, 2016 WL
758032, at *4 (E.D. Pa. Feb. 25, 2016); United States v. Nwokedi, No. CR 15-177
(ES), 2016 WL 7015626, at *11 (D.NJ. Dec. 1, 2016) (“The Court is simply
disinclined to question the propriety of the Third Circuit's model instruction”).
Moreover, as to the merits of the plaintiff’s metaphysical argument regarding
whether the instruction that the use of excessive force “caused” plaintiff’s injuries
imposes a greater burden than the plaintiff “sustaining” injuries as a result of such
force, we decline to engage in an inquiry as to what occurred in the minds of the
jurors when they interpreted this instruction that the plaintiff did not object to, having
found that there was ample evidence to support their ultimate decision.
Finally, the plaintiff argues that the defendants engaged in improper conduct
in their closing argument by focusing on alleged differences in the DOC photos and
those presented by the plaintiff. He argues this conduct was so prejudicial that it
warrants a new trial. At the outset, we again note that the plaintiff did not object to
the defendants’ closing argument at trial. (Doc. 134, 610:14-611:9). On this score:
Generally, a party is not entitled to receive a new trial for objections
to evidence that he did not make at or prior to the initial trial, even if
they may have been successful. Wilson v. Vermont Castings, Inc., 170
F.3d 391, 395 (3d Cir.1999) ( “[Plaintiff] has failed to preserve this
claim for appeal because [Plaintiff's] counsel did not object to Vermont
Castings's cross-examination of Wilson or its closing
argument.”); Waldorf v. Shuta, 142 F.3d 601, 629 (3d Cir.1998) ( “[I]t
is clear that a party who fails to object to errors at trial waives the right
to complain about them following trial.”); Caisson Corp. v. IngersollRand Co., 622 F.2d 672, 681 (3d Cir.1980) (“[A] party may not seek a
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new trial on the basis of objections to evidence not brought to the
court's attention at the original trial.” (Citing Belmont Industries Inc. v.
Bethlehem Steel Corp., 512 F.2d 434 (3d Cir.1975)). The Third Circuit
has recognized an exception to waiver only in cases where the alleged
error is “fundamental and highly prejudicial error resulting in a
miscarriage of justice.” Wilson, 170 F.3d at 395-96 (internal citations
omitted).
Ashford v. Bartz, No. 1:04-CV-00642, 2010 WL 272009, at *4 (M.D. Pa. Jan. 20,
2010). Thus, having waived his objection to the defendants’ closing argument, the
plaintiff must show that admission of the statement was an error so fundamental and
highly prejudicial as to result in a miscarriage of justice. We find no such error here.
The Third Circuit has held that, “[i]n civil trials, “‘improper comments
during closing arguments rarely rise to the level of reversible error [,]’ ” Meals v.
Port Auth. Trans Hudson Corp., 622 F. App'x 121, 127 (3d Cir. 2015) (quoting Dunn
v. HOVIC, 1 F.3d 1371, 1377 (3d Cir. 1993) (en banc)), and a new trial should only
be granted where, “the improper conduct “make[s] it ‘reasonably probable’ that the
verdict was influenced by the resulting prejudice.” Id. at 126 (quoting Forrest v.
Beloit Corp., 424 F.3d 344, 351-52 (3d Cir. 2005). Here, the defendants’ statements
about the photographs were not so prejudicial as to influence the jury’s verdict. Nor
were these remarks improper. Instead, they constituted proper commentary on the
evidence. The extent of the injuries suffered by the plaintiff was a major issue at
trial, thus, each party attempted to convey this evidence in a light that would disfavor
his opponent. Nonetheless, the photographs, used throughout the trial as evidence
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by both parties and available to the jurors for review, speak for themselves. Further,
the plaintiff was not prejudiced by the defendants’ statements about the photographs
after having ample opportunity throughout the course of trial to present his argument
as to the authenticity of the photographs, the timeframe in which they were taken,
and what they depicted. Mindful that we are not to substitute our own credibility
determination for that of the jury, Maylie v. Nat'l R.R. Passenger Corp., 791 F.
Supp.at 480, we find that the defendants’ closing argument was not so highly
prejudicial as to require a new trial.
Having found that the jury’s verdict was fully supported by the great weight
of the evidence in this case, and the defendants did not engage in improper conduct
that had a prejudicial effect on the jury, the plaintiff is not entitled to a new trial on
the issue of damages.
2. Nominal Damages of $1 Should Be Awarded.
Having found that the jury’s finding of liability but no compensatory injury
was reasonable, we nonetheless conclude that a $1 nominal verdict should be
awarded. In actions brought under 42 U.S.C. § 1983, where a jury finds a plaintiff
has shown his substantive constitutional right was violated, but the plaintiff has
failed to show any actual compensable injury, the plaintiff is entitled to an award of
nominal damages. See Carey v. Piphus, 435 U.S. 247, 267 (1978). Here, the jury’s
finding that Whalley suffered no compensable injury was supported by ample
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evidence. In this setting the jury had been properly instructed that it should return a
nominal $1.00 verdict. However, perhaps due to some perceived slight ambiguity on
the verdict form, despite its explicit and well-supported conclusion that Whalley
failed to carry his burden of proof in demonstrating any compensable injury, the
verdict form did not note the $1 nominal award that is called for in cases where
liability, but no compensable injury, is found.
In such instances, it is entirely fitting and proper for the court to mold a
nominal $1.00 verdict in accordance with the jury’s specific, explicit and wellsupported factual findings. Indeed, in a factually similar scenario the Second Circuit
has addressed this issue and explained:
Although the Seventh Amendment generally prohibits a court from
augmenting a jury’s award of damages, see U.S. Const. amend. VII
(“no fact tried by a jury, shall be otherwise re-examined in any Court
of the United States, than according to the rules of the common law”);
Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603
(1935), that proscription is not violated by the court’s entering
judgment awarding nominal damages when the jury has failed or
refused to do so and the claimant is entitled to such damages as a matter
of law. See, e.g., Gibeau v. Nellis, 18 F.3d at 111 (“[b]ecause nominal
damages are mandatory under these circumstances, our [remand for
entry of judgment awarding such damages without a new trial] does not
impermissibly invade the province of the jury”). In the present case, the
court eventually entered judgment ordering Edenhofer and Nichols
each to pay Robinson $1.00 as nominal damages. Thus, the . . . error . .
. as to the requirement for an award of at least nominal damages was
cured.

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Robinson v. Cattaraugus Cty., 147 F. 3d 153, 162 (2d Cir. 1998). Here, although the
jury was instructed that, if they found Whalley’s rights had been violated but he
suffered no actual injury, nominal damages of $1 should be awarded, the jury did
not award any damages. Nonetheless, the jury’s well-supported finding of liability
on the part of Kranick, but no compensable injury, entitles the plaintiff to nominal
damages as a matter of law. Thus, we follow the Second Circuit’s guidance that,
where a jury has failed to award nominal damages despite the plaintiff being entitled
to them as a matter of law, a court may properly augment the verdict by awarding
$1 in nominal damages.
III.

Conclusion
Accordingly, for the foregoing reasons, the defendant’s motion for a new trial

limited to damages will be DENIED to the extent that it requests a new trial on the
issue of damages, but the jury’s verdict will be augmented to include an award of $1
in nominal damages in accordance with the explicit and well-supported factual
findings made by the jury.
An appropriate order follows.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
September 15, 2022
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