THOMPSON v. PETROF

Filing 83

MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 5/12/14. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DIANNE M. THOMPSON,
Plaintiff,

v.
MATTHEW PETROF,
Defendant.

)

)
)
)
)
)
)
)
)

Case No.1 :1O-cv-123-MRH

MEMORANDUM OPINION
Mark R. Hornak, United States District Judge

This civil action arises out of an incident occurring in the early morning hours of October
31, 2009 which culminated in Defendant Matthew Petrof, a Pennsylvania State Trooper,
arresting Plaintiff Dianne M. Thompson for driving under the influence of alcohoL Plaintiff
commenced this action under 42 U.S.c. § 1983 alleging, in relevant part, that Defendant violated
her Fourth Amendment rights by arresting her and subjecting her to chemical testing without
probable cause. 1
The case was originally assigned to United States District Judge Sean J. McLaughlin.
Following a four-day jury trial, Judge McLaughlin entered judgment in favor of the Defendant
(ECF No. 59). The case was transferred to the undersigned on August 28, 2013?

1

The Court's subject matter jurisdiction is premised upon 28 U.S.C. §§ 1331 and 1343(a)(3).

2 Pursuant to Fed. R. Civ. P. 63, the Court certifies that it has personally reviewed the pleadings, trial documents of
record, exhibits, and the trial record bearing on the dispositions of these motions. The Court certifies that it is
familiar with the record, and that the case may be completed without prejudice to the parties.

Currently pending in this case is the Plaintiffs motion to alter or amend the judgment and
for a new trial (ECF No. 62). For the reasons that follow, Plaintiffs motion will be denied. 3

I.

FACTUAL BACKGROUND 4

Plaintiff is the owner of the Comer Bar & Grill located in Bradford, Pennsylvania. (Trial
Tr. vol. 6, p. 3 Oct. 24, 2012, ECF No. 75.)5 At all times relevant to this lawsuit, Plaintiffs
brother, Don Cummins, was a member of the Bradford Township Board of Supervisors, and her
other brother, Bob Cummins, was a local contractor. (Trial Tr. vol. 1, pp. 19-20, Oct. 22, 2012
ECF No. 70.)
On June 6, 2009 and again on August 21,2009, the local Bradford newspaper published
guest commentaries written, respectively, by Don and Bob Cummins. (Trial Tr. vol. 1, pp. 24­
25, 35; PI.' s Trial Ex. 26, 26A, 29.) Both commentaries were critical of the practices then being
employed by the Pennsylvania State Police operating within the Bradford area. (Trial Tr. vol. 1,
pp. 24-25,35-36; Pl.'s Trial Ex. 26, 26A, 29.) Trooper Petrofwas among the Pennsylvania State
Police officers stationed in the Kane Barracks and assigned to the Bradford area during this time.
(Trial Tr. vol. 1, pp. 25, 39-40.) It is undisputed that, as of October 31,2009, Trooper Petrofwas
acquainted with the Plaintiff and her brothers, knew that Plaintiff owned the Comer Bar & Grill,
and was also aware of the guest commentaries written by the Cummins brothers. (Trial Tr. vol.
1, pp. 19-20,24-25,31,35-36, ECF No. 70; id. at pp. 64-66, ECF No. 70-1.)

3 Also pending is Plaintiffs motion to list this matter for oral argument (ECF No. 66). Having carefully reviewed
the Plaintiffs motion to alter or amend the judgment and for new trial and all documents of record and exhibits
relevant thereto, the Court is of the view that oral argument will not materially assist its disposition of the Plaintiffs
Rule 59 motion. Accordingly, Plaintiffs motion to list the within matter for oral argument will be denied.

4

Except as otherwise indicated, the following events are undisputed based on the evidence presented at trial.

5 All references are to the original pagination appearing internally within the referenced document rather to than the
CM/ECF pagination appearing in the document's header.

2

At approximately 1:00 a.m. on the morning of October 31,2009, Plaintiff was operating
her vehicle after having left the Corner Bar & Grill. (Trial Tr. vol. I, p. 3; Trial Tr. vol. 2, p. 49,
Oct. 23, 2012, ECF No. 71; Trial Tr. vol. 6, pp. 4-7 Oct. 24,2012, ECF No. 75.) Plaintiffhad
not consumed any alcoholic beverages throughout the day, there was no alcohol present in her
vehicle, and her blood alcohol content was zero. (Trial Tr. vol. 1, p. 13; vol. 6, pp. 5-6, 12,25.)
As the Plaintiff drove home, she was observed by Trooper Petrof stopping at a yellow
flashing light for a prolonged period of time and tossing a lighted cigarette butt out of her car
window. (Trial Tr. vol. 1, pp. 4, 7, 9; Trial Tr. vol. 6, pp. 9-10; Pl.'s Trial Ex. 9.) Based on these
observations, Trooper Petrof signaled for Plaintiff to pull over, unaware at first that Plaintiff was
the driver of the vehicle. (Trial Tr. vol. 1, pp. 16-19,21-22; vol. 6, p. 11; PI. 's Trial Ex. 15, 15A.)
Upon approaching the Plaintiffs car, Trooper Petrof stated that the Plaintiff was emitting
a slight odor of alcohol and that she appeared to have bloodshot and glassy eyes. (Trial Tr. vol.
1, pp. 20-21, 38; vol. 6, pp. 11-13.) Plaintiff contends she denied smelling of alcohol or having
consumed any alcohol that day. (Trial Tr. vol. 6, pp. 11-12.)
Trooper Petrof ordered Plaintiff out of the car and directed her to perform several field
sobriety tests - namely, the Horizontal Gaze Nystagmus, the heel-to-toe walk, and the one­
legged stand, each of which Plaintiff either refused to perform or failed to complete successfully.
(Trial Tr. vol. 1, pp. 10-11,28-30,35,45, ECF No. 70; id. at pp. 67-69, ECF. No. 70-1; Trial Tr.
vol. 2, pp. 31, 34, 50, ECF No. 71; Trial Tr. voL 6, pp. 14-15, ECF No. 75; Pl.'s Trial Ex. 9.)
Trooper Petrof then attempted to administer a Portable Breathalyzer Test (PBT), but Plaintiff
refused to comply because she did not trust that Defendant would administer the test accurately.
(Trial Tr. vol. 2, p. 33, ECF No. 71; id. at p. 51, ECF No. 71-1; Trial Tr. vol. 6, pp. 15-16.)

3

Plaintiff was subsequently handcuffed and taken to the Bradford Regional Medical
Center for a blood draw. (Trial Tr. vol. 1, pp. 40, 50; Trial Tr. vol. 2, pp. 39, 51-52; Trial Tr.
vol. 6, p. 19.) After the results came back negative for alcohol, Plaintiff was re-handcuffed,
transported back to her vehicle, and released. (Trial Tr. vol. 1, pp. 44, 47, 50, ECF No. 70; id. at
pp. 53, 56, ECF No. 70-1; Trial Tr. vol. 2, pp. 40-41, 53.)
Several days later, Trooper Petrof issued citations against Plaintiff for remaining
stationary too long at the yellow flashing light and for littering. (Trial. Tr. vol. 1, pp. 16-18; PI. 's
Trial Ex. 15, 15A.) The matter eventually proceeded to a summary trial before a district justice,
and Plaintiff was found not guilty of the summary offenses. (Trial Tr. vol. 1, pp. 16-18.)
II.

PROCEDURAL HISTORY

This lawsuit was commenced on May 19, 2010 with the filing of Plaintiffs complaint
(ECF No.1), which alleged numerous causes of action under 42 U.S.C. §I983. 6

At the

conclusion of pretrial proceedings, Plaintiffs only remaining claims were her Fourth
Amendment claims premised upon her allegedly unlawful arrest and blood draw. At trial, the
central issues in dispute were: (1) whether the arrest and blood draw were supported by probable
cause and (2) whether Plaintiff had consented to the arrest and chemical testing.
The Defendant's theory at trial was that Plaintiff had attempted to orchestrate an unlawful
arrest because of the animosity which she and her family members felt with regard to the State
Police.

Trooper Petrof testified that Plaintiff had initially exhibited numerous signs of

impairment, to wit: she was emitting a "slight" or faint" odor of alcohol, she exhibited glassy
6

Section 1983 provides a private right of action as against:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws ...

42 U.S.C. §1983.

4

eyes and thick speech, she was non-responsive when asked if she had been drinking alcohol, and
she appeared either unable or unwilling to properly perform the standard field sobriety tests.
(Trial Tr. vol. 1, pp. 27-31, 36-38, 66-68; Trial Tr. vol. 2, pp. 33-34, 49-50, 61-62; Pl.'s Ex. 6.)
Despite these signs, Trooper Petrof testified that he had doubts about whether Plaintiff was
legally drunk; he thought she might be deliberately failing to perform the field sobriety tests, but
he could not be sure without the benefit of chemical testing. (Trial Tr. vol. 1, pp. 62-64, 69-70;
voL 2, pp. 31-34, 69-70.) Trooper Petrof then attempted to administer the PBT but Plaintiff
refused and indicated that she did not trust him, considered him a "liar," and wanted to be taken
for a blood test. (Trial Tr. vol. 1, pp. 30, 62; vol. 2, pp. 33-34, 51-52.) At that point, Trooper
Petrof sent Plaintiff back to her car while he contacted his supervising officer as he was required
to do when dealing with individuals who were connected in some way to the adverse news
articles. (Trial Tr. vol. 1, pp. 11-12,30-32,38-40.) After speaking with his supervising officer
and confirming that he would transport the Plaintiff for chemical testing, Trooper Petrof awaited
transport assistance from the Bradford city police while Plaintiff continued to wait in her car.
(Trial Tr. vol. 1, pp. 12, 14, 40; Trial Tr. vol. 2, p. 60.) Upon the arrival of the Bradford city
police cruiser, Plaintiff was handcuffed, placed in that cruiser, and taken to the Bradford
Regional Medical Center, where she underwent a blood test. (Trial Tr. vol. 2, pp. 59-60, 70.)
Concerning the issue of consent, Trooper Petrof posited that Plaintiff had essentially
engineered her own arrest by pretending to be intoxicated and/or by insisting that she be taken to
the hospital for chemical testing. (Trial Tr. vol. 1, pp. 62-63, 69; Trial Tr. vol. 2, p. 29.) Trooper
Petrof variously described Plaintiff s words as "requesting" or "demanding" that she be taken to
the hospital. (Trial Tr. vol. 1 pp. 62,69; Trial Tr. vol. 2, pp. 51-52.)

5

Plaintiff s theory at trial was that Trooper Petrof is an overly zealous officer who falsely
claimed to have detected an odor of alcohol in an attempt to manufacture grounds for an arrest
that was not supported by probable cause. Plaintiff denied consuming or coming into contact
with alcohol at any point during the day leading up to her arrest, and she also denied exhibiting
signs of intoxication. (Trial Tr. vol. 6, pp. 5-6, 12, 27-28.) She testified that, upon being pulled
over, she attempted to explain to Trooper Petrof that the reason for her delay at the yellow
flashing light was that her dog had knocked over the contents of her purse onto the floor of her
car and she had paused at the light to pick them up; however, Trooper Petrof was not interested
in the explanation. (Id. at pp. 9, 12-13,51.) Plaintiff further testified that, when confronted by
Trooper Petrof about an alleged odor of alcohol, she adamantly denied having consumed any
alcohol beverages and further denied that she could be emitting any odor of alcohol. (Id. at 11­
13.) At that point, Plaintiff claims, Trooper Petrof replied that she was either drunk or on drugs,
which was untrue. (rd. at 13.)
Plaintiff explained that she could not perform the HGN properly because Trooper Petrof
had failed to demonstrate the test clearly. (Trial Tr. vol. 6, pp. 14-15.) She stated that she had
difficulty with the walk-and-tum because of the fact that she was required to attempt that test on
an inclined surface. (ld. at 15.) She claimed that she did not complete the one-legged stand
because she perceived that Trooper Petrof was terminating the test and did not want her to
continue. (Id. at 15.) Plaintiff testified that she refused the PBT because she did not trust that
Trooper Petrofwould administer the test accurately. (rd. at 16.) She claimed that she eventually
submitted to the blood draw only because she believed that a refusal would result in a one-year
license suspension. Plaintiff described the incident as follows:
When Trooper Petrof first asked me to take the test and I refused, he went
on to explain to me how important the test was, and I listened to what he had to
6

say. And I again refused the test. I said I'm not taking that test. He carne at me
with the test again, and I said no. He went on to talk to me about the test. I think
the other officer in the patrol car [Trooper Palmer] ... had corne out of the car, he
carne up to where Officer Petrof and I were.
Q.
How close did Trooper Palmer get to you, I mean the jury can look at it on
the film?
A.
I think he was about six feet away at that point, maybe closer, four to six
feet away.

***

A.
So, again, I had refused to take the PBT test. Four times he carne at me
with that and I had kept backing up, saying to him I'm not going to take that test.
I do not want to take that test. It finally ended up that I was against the back of
the car and he was still shoving this test in my face. And I went like this
(indicating), I said I'm not taking that test.

THE COURT: I'm sorry, you say you went like what?
THE WITNESS: I made a motion with my hands like this (indicating).
That I just wasn't going to do it. But at the same time I didn't want to lose my
license for a year. So I had asked him questions about losing my license for a
year. If I didn't take that test, would I lose my license. And this kind of
conversation went back and forth for a little bit. How important the test was, I
should take it, and I'm not going to take it. And he just kept getting angrier and
angrier. Finally I just stood at the back of the car until he was finished. And then
my concern at that point was that I not lose my license for a year. I didn't
understand at that time that you could take a PBT test, and then you had to go and
get a blood test, I had never been through it before, I thought it was one or the
other. Either you take the machine that you blow in or you go get a blood test.
Apparently I was wrong, you could blow into the machine, and then you go get a
blood test. I didn't have a clue about that. So after this went on for quite
sometime [sic] at the back of the car, I said, officer Petrof, I am not going to lose
my license over this. He said to me that I could go to the hospital and get a blood
test. And I said if that was my only option, the only way that I could prove that I
wasn't drinking, I would go to the hospital and get a blood test. That all took
place at the back of my car.
(Trial Tr. vol. 6, pp. 17-18.)
Plaintiff claims she was then directed by Trooper Petrof to return to her vehicle, where
she remained for approximately 12 or 15 minutes and made arrangements for a friend to corne
and retrieve her dog. (Trial Tr. vol. 6, pp. 18-19.) A Bradford city police cruiser subsequently

7

arrived, and Plaintiff was then handcuffed by Trooper Petrof, placed in the city police cruiser,
and taken to the hospital for the blood test. (Id. at 19.)
Concerning the issue of consent, Plaintiff disputes that she demanded to go to the hospital
or that she asked to be arrested. (Trial Tr. voL 6, pp. 20-21, 50-51.)

She testified that she

requested a blood draw because she felt that it was her only option as far as proving that she did
not have any alcohol in her system. (Id.) She described her exchange with Trooper Petrof as
follows:
... At the end of, I don't know how many minutes, four minutes, maybe more, of
him trying to convince me strongly to take this PBT test, I asked him again if it
was my only option. I didn't want to lose my driver's license. And he said then I
had the opportunity to go and get a blood test. And I said that's what I'll have to
do, I have no other choice, I'll have to go get a blood test.
Trial Tr. voL 6, pp. 50-51.) Describing her emotions at that point, Plaintiff stated, "I felt pinned
against the back of my car like there was nowhere for me to go. [Trooper Petrof] was so mad at
me for not taking that PBT test. He tried four times to shove it at me. I was upset to say the
least ... I went from mad to scared to intimidated - it just ran the gambit [sic]." (Id. at 21.)
Plaintiff further stated that she felt like she was "under [Trooper Petrof's] control, I'm stuck here
with this man who is lying about my condition, that I'm driving with alcohol on my breath." (Id.
at 52.) She considered the exchange over the PBT "the absolute worst part" of the incident:
"This man would not take no for an answer. You could see it in the back of the car - I had
nowhere else to go." (Id.) She described the videotape as depicting Officer Palmer approaching
the two of them at that point "because he obviously sees that there's some stress there, there's
something wrong there." (Id.)
Ultimately, the jury was asked to consider the following issues concerning liability: (i)
whether Plaintiff had proved by a preponderance of the evidence that Trooper Petrof lacked
probable cause to arrest her for driving under the influence of alcohol and (ii) whether Trooper
8

Petrof had proved by a preponderance of the evidence that Plaintiff consented to her arrest, either
by feigning intoxication or by demanding that she be taken to the hospital for a blood test. To
that end, special interrogatories were submitted to the jury.
During the course of their deliberations, the jury submitted the following question for
clarification: "At what point during the incident on Oct 31, 2009 is the plaintiff considered
under arrest?" [ECF No. 56.] Judge McLaughlin instructed the jury, in relevant part, as follows:
I'm going to answer that for you now in this fashion. In this case the plaintiff
claims that the defendant arrested her without probable cause. The defendant
contends that the arrest occurred when the plaintiff was handcuffed in the cruiser.
Thus, there is no dispute that plaintiff was under arrest at least as of the time that
she was handcuffed and placed in the police cruiser. The plaintiff contends that
while the initial stop and preliminary investigation were justified, at some point
prior to the cuffing of the plaintiff and placing her in the cruiser, an arrest
occurred which required probable cause. In deciding whether the plaintiff was
arrested at some point prior to having been handcuffed and placed in the cruiser,
you should consider, among other factors, the following circumstances. The
length of the interaction. Whether the defendant was diligent in pursuing the
investigation, or whether he caused undue delay that lengthened the seizure.
Whether the defendant pointed a gun at the plaintiff. Whether the defendant
physically touched the plaintiff. Whether the defendant moved the plaintiff to a
police facility. And whether the defendant stated that he was placing the plaintiff
under arrest.
(Trial Tr. vol. 5, 38:3-23, Oct. 25,2012, ECF No. 74.)
The jury subsequently returned the verdict in the following form:
1. Has the Plaintiff proven by a preponderance of the evidence that there was no

probable cause for her arrest?
Yes

---

No

(If you answered "yes" to this question, please proceed to Question #2. If
you answered "no" to this question, please skip the remaining questions, sign and
date this verdict slip, and notify my courtroom staff that you have reached a
verdict.)

9

2. Has Trooper Petrof proved by a preponderance of the evidence that the
Plaintiff consented to her arrest by virtue of feigning intoxication?
Yes

No

X

(If you answered "yes" to this question, please skip the remaining
questions, sign and date this verdict slip, and notifY my courtroom staff that you
have reached a verdict. If you answered "no" to this question, please proceed to
Question #3.)
3. Has Trooper Petrofproved by a preponderance of the evidence that the

Plaintiff voluntarily consented to her arrest by virtue of demanding to be
transported to the Bradford Regional Medical Center for a blood draw?
Yes

X

No

(If you answered "yes" to this question, please skip the remaining
questions, sign and date this verdict slip, and notifY my courtroom staff that you
have reached a verdict. If you answered "no" to this question, please proceed to
Question #4.)
4. Please state below the amount that will fairly compensate the Plaintiff for any
injury she actually sustained as a result of the Defendant's conduct. If you
find that Plaintiff has failed to prove, by a preponderance of the evidence, that
she sustained an injury as the result of the Defendant's conduct, please enter
the amount of one dollar ($1.00) below.
---------$1.00------­
(Please proceed to Question #5.)

5. Has the Plaintiff proved by a preponderance of the evidence that Trooper
Petrof acted willfully or maliciously in violating her Fourth Amendment
rights?

10

No

Yes

X

(If you answered "yes" to this question, please proceed to Question #6. If
you answered "no" to this question, please skip the remaining question, sign and
date this verdict slip, and notify my courtroom staff that you have completed your
deliberations.)

6. Please enter below the amount of punitive damages, if any, that you find
appropriate.
------- None ------­
(Verdict Slip, Oct. 25,2012, ECF No. 58.)
After the jury returned its verdict, counsel met with Judge McLaughlin in chambers, and
the following discussion ensued:
THE COURT: Let me show both of you the form. I guess the point I'm
making is clearly by virtue of the jury's finding on question number three, they
were instructed "if you answered 'yes' to this question, please skip the remaining
questions, sign and date this verdict slip, and notify my courtroom staff that you
have reached a verdict." They erroneously proceeded to question four and put a
$1.00 in. The upshot being that after question three, that was the end of the case,
that functionally is a defense verdict. I guess my question is procedural, it's an
inconsistent verdict on liability, they clearly found that the defendant was not
liable and erroneously put a dollar down.
MR. WILLIG: Correct.
THE COURT: What do I do about it?
MR. HENRY: I don't know. Would I be remiss in asking for a copy of
that?
THE COURT: No, you wouldn't be remiss at all. I'll have the verdict
slip copied.
MR. HENRY: So I could have it front of me to try to answer your
question....
THE COURT: Let me put it this way, I'm not asking you, I don't want
you to make any snap decisions. I'm simply throwing it out there for anybody's
consideration. The original will be docketed, and let's see where we go from
there.

11

MR. WILLIG: Do you want us to file some kind of motions or something,
is that what you're saying?
THE COURT: I don't know. Frankly, I don't even know if anything has
to be done. By virtue of question three, it's a defense verdict, with them
proceeding erroneously to question four. I guess my point is this. It may seem
somewhat nitpicking. Trooper Petrof, by virtue of question three, it seems to me,
doesn't owe a dollar.
MR. HENRY: I understand the logic of it. At the same time, I don't want
to give up my legal position just yet.
THE COURT: I'm not suggesting you have to. My major point was
simply to confirm that both of you were award of the anomaly there.
MR. HENRY: I'm definitely aware of it.
THE COURT: I figured you would be. So there we go. Thank you,
counsel.
(Trial Tr. vol. 5,41 :25-43:17, Oct. 25, 2012, ECF No. 74). Consistent with his interpretation of
the verdict slip, Judge McLaughlin entered judgment in favor of Defendant and against Plaintiff
(ECF No. 59).
On November 23, 2012, Plaintiff filed the pending motion pursuant to Rule 59 of the
Federal Rules of Civil Procedure (ECF No. 62). In her motion, Plaintiff requests that the Court
amend the jUdgment in favor of Defendant Petrof, acknowledge Plaintiff to be the "prevailing
party," and accord the Plaintiff fourteen (14) days in which to file a petition for counsel fees.
Alternatively, Plaintiff requests that the Court award her a new trial.

On January 7, 2013,

Defendant filed his response disputing Plaintiffs entitlement to the requested relief (ECF No.
65).
The matter was transferred to the undersigned on August 28, 2013 (ECF No. 67),
following Judge McLaughlin's departure from the bench. On September 13, 2013, this Court
entered a memorandum order staying the case pending the parties' submission of supplemental
memoranda containing appropriate citations to the trial record (ECF No. 69). Plaintiff filed her

12

supplemental memorandum on October 15, 2013 (ECF No. 78).
supplemental memorandum on November 25, 2013 (ECF No. 80).

Defendant filed his
The issues have been

adequately joined and are ripe for disposition.
III.

DISCUSSION

A.

Plaintiff's Motion to Alter or Amend the Judgment

Plaintiff has moved this Court to alter or amend the judgment pursuant to Rule 59(e) of
the Federal Rules of Civil Procedure. Generally, motions under Rule 59(e) must rely on one of
the following three grounds: (1) an intervening change in controlling law; (2) the availability of
new evidence; or (3) the need to correct clear error oflaw or prevent manifest injustice. Wiest v.
Lynch, 710 F.3d 121, 128 (3d Cir. 2013); Lazaridis v. Wehmer, 591 F.3d 666,669 (3d Cir. 2010)
(per curiam) (citation omitted). Because the first two grounds are clearly not implicated here,
Plaintiff can obtain relief, if at all, only by demonstrating a need to correct a clear error or
prevent manifest injustice.

To that end, Plaintiff argues that the Court was compelled to

reconcile the jury's inconsistent verdict by construing it as an award of $1.00 in her favor.
"A 'trial court is under a constitutional mandate to search for a view of the case that
makes the jury's answers consistent.'" McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750,
764 (3d Cir. 1990) (internal quotation marks and citation omitted). Accordingly, "a verdict must
be molded consistently with a jury's answers to special interrogatories when there is any view of
the case which reconciles the various answers." Bradford-White Corp. v. Ernst & Whinney, 872
F.2d 1153, 1159 (3d Cir.l989).
In this case, the inconsistency in the verdict stems from the jury's answers to Special
Interrogatories Nos. 3 and 4. After finding that there was no probable cause for Plaintiff's arrest
and that the Plaintiff had not consented to her arrest by feigning intoxication, the jury next found,

13

in response to Special Interrogatory No.3, that Plaintiff did consent to her arrest by demanding
that she be taken to the hospital for a blood draw. At this point, according to the instructions on
the verdict form, the jury was supposed to cease its deliberations, sign and date the form, and
notify the judge's staff that they had reached a verdict. Instead of doing so, however, the jury
went on to answer Special Interrogatory No.4, which directed it to "state below the amount that
will fairly compensate the Plaintiff for any injury she actually sustained as a result of the
Defendant's conduct. If you find that Plaintiff has failed to prove, by a preponderance of the
evidence, that she sustained an injury as the result of the Defendant's conduct, please enter the
amount of one dollar ($1.00) below." (Verdict form [ECF No. 58] at p. 2.) In response to this
directive, the jury entered one dollar. Judge McLaughlin resolved the foregoing inconsistency
by accepting the jury's finding of consent and essentially disregarding the jury's answer to
Special Interrogatory No.4 as surplusage. Based on this interpretation of the verdict form, Judge
McLaughlin entered judgment in favor of the Defendant.
Plaintiff contends that it was incumbent upon Judge McLaughlin to try and resolve the
inconsistencies in the jury's responses by giving effect to all of the jury's answers. She posits
that Judge McLaughlin could have, and should have, done so by interpreting the jury's verdict as
an award of $1.00 in her favor. Plaintiffs theory is that the jury implicitly found she had been
unlawfully arrested prior to the point when she consented to being transported to the hospital for
a blood draw. As Plaintiff sees it, "[t]he jury must have concluded that [her] demand to be taken
to the hospital for a blood test was analogous to where an individual voluntarily appears at police
headquarters to convince officials of his innocence." (PI.'s Suppl. Mem. [ECF No. 78] at 10.)
Thus, Plaintiff concludes:

the jury did not regard [her] subsequent consent as a justification for her
earlier unlawful seizure. In other words, the unlawful arrest for which they
14

awarded the Plaintiff nominal damages was not annulled, nullified, or
cancelled by her consent. The jury concluded merely that the Plaintiff's consent
cured the unlawful seizure/arrest which it had found the Defendant to have made.
The jury then proceeded to answer all damage questions consistent with this
understanding.

(Id. (emphasis in the original).)
Although Plaintiffs argument represents one perhaps plausible theory of the jury's
intent,7 it is not the only plausible theory.

It is considerably more reasonable to conclude,

consistent with Judge McLaughlin's view, that the jury understood its finding of consent as a
complete defense to the false arrest claim and intended its entry of $1.00 in response to Question
No.4 as merely an indication, consistent with its defense verdict, that "Plaintiff ha[ d] failed to
prove ... an injury as the result of the Defendant's conduct." (Verdict Form [ECF No. 58] at 2.)8
Accordingly, Judge McLaughlin's treatment of the jury's answers to Special
Interrogatories Nos. 4 through 6 as mere surplusage was not clear error. As one federal court has
observed, "[t]here is precedent for disregarding answers to special interrogatories which jurors
were instructed not to address based on an apparently conflicting answer to a prior question
which should have terminated deliberations." Lavin v. Tony DePaul & Son, No. 93-1502,1995

WL 765720

* 2 (E.D. Pa. Dec.

29, 1995) (citing Kavanaugh v. Greenlee Tool Co., 944 F.2d 7,

10 (1 st Cir.1991); Floyd v. Laws, 929 F.2d 1390, 1398 (9th Cir.1991); White v. Grinfas, 809 F .2d
1157, 1161 (5th Cir.1987)). See also Copeland v. 1. Capone Trucking, Inc., Civ. A. No. 89­
In the Court's estimation, this characterization (which requires several layers of inference) is giving the Plaintiff a
rather big benefit of the doubt, since it would appear to also run counter to the Court's specific instructions to the
jury on the role of consent. (See ECF No. 74 at 9-12.)
7

Judge McLaughlin's interpretation of the verdict slip is persuasive in view of the jury's responses to Special
Interrogatories Nos. 5 and 6. The former asked whether Plaintiff had proven that Trooper Petrof "acted willfuIJy or
maliciously in violating her Fourth Amendment rights" (Verdict Form [ECF No. 58] at 2), and the jury answered
"no." (Id.) Although the verdict form expressly instructed the jury that it should cease further deliberations if it
answered Question No.5 in the negative, the jury went on to address Special Interrogatory No.6 (indicating that the
"appropriate" amount of punitive damages to be awarded was "none") - once again disregarding the verdict form's
clear instructions. (Id. at 2-3.) This pretty strongly suggests that the jury's response to Question No.4 (and to
Questions No. 5 and No.6) was the product of a mistaken assumption that all questions on the form required an
answer.
8

15

1350, 1991 WL 25692 *2 (E.D. Pa. Feb. 25, 1991) (where 'Jury's only mistake ... was in
I

answering a question it need not have answered," the court would correct the jury's error "by
merely disregarding the answer which should not have been given in the first place."). But see
Lavin, supra, at *2 ("[P]articularly when there is reason to doubt the meaning of a jury's

answers, it is not altogether fair to assume that its findings regarding liability are correct and
those regarding an award of damages are not.") (citing Hatfield v. Seaboard Air Line Railroad
Co., 396 F.2d 721,724 (5 th Cir. 1968)).

In essence, Plaintiffs argument as to the jury's intended findings is an indirect challenge
to the form of the verdict slip. Plaintiff posits that the jury meant to find that she had first been
unlawfully seized by virtue of an arrest without probable cause and that she subsequently
consented to the arrest. Plaintiff further posits that such a finding was permitted by the manner

in which Judge McLaughlin instructed the jury in response to its question, "[a]t what point
during the incident ... is the plaintiff considered under arrest?" (ECF No. 56.) Even assuming,
however, that the Plaintiff is correct about her characterization of Judge McLaughlin's
instruction on "arrest" and the jury's intent, the fact remains that the findings she now advocates
were not permitted by the form of the verdict that the jury was given. On the contrary, the
verdict slip expressly admonished the jury at Question No. 3 that, if they found Plaintiff
voluntarily consented to her arrest, they had to then terminate their deliberations without
proceeding to the questions relating to damages. The wording of Question No.3 also required
them to find a consensual arrest only if the consent was "voluntary"

meaning that it could not

have been the product of duress or coercion. (See Final Instructions to the Jury [ECF No. 55] at
7-8 (stating that, "[T]o be effective, consent must be freely and voluntarily given. The question
as to whether a consent was in fact 'voluntary' or was a product of duress or coercion is a

16

question of fact to be determined from the totality of the circumstances," including, among other
things, consideration of "law enforcement officials' use of any inherently coercive tactics.").)
Thus, even if Judge McLaughlin's subsequent instruction on arrest suggested that the jury could
find an unlawful arrest precedent to consent (which the Court does not conclude), the jury form
was never amended to permit such a finding. At all times, the verdict slip functionally permitted
only a finding of consent that was (a) "voluntary" and (b) dispositive of the Plaintiff's Fourth
Amendment claim.
Importantly, Plaintiff never requested that the form be altered to permit the jury to make
the findings that she now urges this Court to adopt. 9 Consequently, to the extent that Plaintiff's
Rule 59(e) motion is a challenge to the form of the verdict, it comes too late and is waived. See
Fed. R. Civ. P. 49(a)(3) ("A party waives the right to ajury trial on any issue of fact raised by the
pleadings or evidence but not submitted to the jury unless, before the jury retires, the party
demands its submission to the jury."). When a party fails to demand that an issue of fact be
submitted to the jury, "the court may make a finding on the issue" but, "[i]f the court makes no
finding, it is considered to have made a finding consistent with its judgment on the special
verdict." Id. In sum, by virtue of his entry of a defense verdict, Judge McLaughlin implicitly
found that there was no unlawful arrest precedent to Plaintiff's consent to be taken for a blood
draw. Because there was ample evidence in the record to support this finding, Plaintiff cannot
establish that it was clearly erroneous.

In fact, in discussing the manner in which the jury charge and verdict slip would be constructed, Plaintiff's counsel
agreed that Plaintiffs arrest occurred when she was handcuffed in order to be transported for a blood draw. (Trial
Tr. vol. 6, pp. 32:21-33:1, Oct. 24, 2012 [ECF No. 75].) In light of this concession, any consent by the Plaintiff (in
the form of a demand for a blood draw) would necessarily have preceded her arrest and would therefore necessarily
operate as an affirmative defense. It appears that the Court prepared its verdict slip accordingly. Plaintiffs counsel
subsequently requested only one change to the Court's proposed verdict form, and that requested alteration - which
the Court adopted _. did not concern Plaintiff's theory that she had been unlawfully arrested prior to giving
voluntary consent. (See Trial Tr. Vol. 4, pp. 2-3, Oct. 25, 2012 [ECF No.73].)

9

17

Plaintiff contends that no waiver could have occurred for purposes of Rule 49(a)(3) based
on the post-verdict discussion which Judge McLaughlin had with both counsel. This line of
argument is unpersuasive. During the post-verdict discussion, Judge McLaughlin made a point
to bring the anomaly in the verdict slip to counsels' attention. He twice expressed his view that
the jury had erroneously proceeded to Special Interrogatory No.4 and that its answer to Special
Interrogatory No.3 functionally ended the case and represented a defense verdict. (See Trial Tr.
vol. 5, 42:6-8, Oct. 24, 2012, ECF No. 74; see also id. at 42:23 and 43:5-9.) Thus, Plaintiffs
counsel was on notice that the Court intended to enter judgment for the Defendant .and that, in
doing so, the Court would be making an implicit finding that Plaintiffs voluntary consent had
precluded any possibility of a false arrest. Although Judge McLaughlin did not insist upon the
jury's return for clarification or further deliberation, he did not preclude either counsel from
requesting the jury's return and in fact invited counsels' suggestions as to how the matter should
be handled from a procedural standpoint. (Id. at 42:8-13.) At no point did the Court purport to
advise either attorney as to the manner in which they should advocate their respective clients'
rights. On the contrary, Judge McLaughlin frankly admitted that he was uncertain as to how the
inconsistency should be handled. (ld. at 42:13, 43:5-6.) Accordingly, in the context of his post­
verdict discussion with counsel, Judge McLaughlin's admonition against "snap decisions"
cannot reasonably be understood as an invitation for the attorneys to defer arguments or rights
that are otherwise required to be asserted within a particular time frame under the Federal Rules
of Civil Procure. Rather, the comment is more reasonably understood merely as an admonition
by Judge McLaughlin that Plaintiffs counsel should not reflexively agree with the Court's
interpretation of the verdict slip.

18

In sum, Judge McLaughlin was not compelled, as a matter of law, to construe the jury's
special interrogatory answers as a verdict in Plaintiffs favor. Moreover and in addition to that,
Plaintiffs implicit challenge to the form ofthe verdict slip is waived. Because no clear error has
been demonstrated, Plaintiff is not entitled to relief under Rule 59(e).

B.

Plaintiff's Motion, in the Alternative, For a New Trial

Plaintiff also argues, in the alternative, for a new trial. Rule 59(a) permits a federal
district court to 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." Fed. R.
Civ. P. 59(a)(1 )(A). Grounds for a new trial may exist where, for example, the jury's verdict is
against the clear weight of the evidence and a new trial must be granted to prevent a "miscarriage
of justice." University of Pittsburgh ofCornrnw. Sys. ofHigher Educ. v. Varian Med. Sys., Inc.,
877 F. Supp. 2d 294,304 (W.D. Pa. 2012) (citations omitted), affd in part, rev'd in non-relevant

part, --- F. App'x ----, 2014 WL 1387144 (Fed. Cir. April 10,2014). The decision to grant or
deny a new trial is within the sound discretion of the district court.

/d. (citing Allied Chern.

Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980); Radwan v. Carteret Bd ofEduc., 62 F. App'x 34,
37 (3d Cir. 2003)).
Plaintiff asserts that the jury's finding in response to Special Interrogatory No.3 was
against the weight of the evidence, warranting a new trial. According to Plaintiff, once she had
been seized (i.e., unlawfully arrested), her willingness to submit to a blood test could not, as a
matter of law, constitute consent. Consequently, Plaintiff argues, the jury was not at liberty to
conclude that her demand for a blood test constituted consent. 10

10 Although Plaintiff contends that the jury's verdict is against the weight of the evidence "as a matter of law," she
has framed her argument as grounds for a new trial pursuant to Rule 59(a)(l)(A), rather than as a "sufficiency-of­
the-evidence" challenge as might warrant entry of judgment in her favor as a matter of law pursuant to Rule 50(b).
To the extent that Plaintiff is implicitly asserting a Rule 50(b) challenge, that motion is denied inasmuch as Plaintiff

19

"[W]hen a court evaluates a challenge to the weight of the evidence it does not view the
evidence in the light most favorable to the verdict winner, but instead exercises its own judgment
in assessing the evidence." Marra v. Philadelphia Housing Authority, 497 F.3d 286, 309 n.l8
(3d Cir. 2007) (citing authority). "[N]ew trials because the verdict is against the weight of the
evidence are proper only when the record shows that the jury's verdict resulted in a miscarriage
of justice or where the verdict, on the record, cries out to be overturned or shocks our
conscience." Id. (quoting Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d
Cir.1991» (alteration in the original). See also Tokash v. Foxco Ins. Management Services, Inc.,
548 F. App'x 797, 800 (3d Cir. 2013) ("A district court should not grant a new trial unless there
is a 'miscarriage ofjustice' or the verdict 'cries out to be overturned or shocks our conscience."')
(quoting Williamson, supra, at 1353). "Where, as here, the 'subject matter of the litigation is
simple and within a layman's understanding, the district court is given less freedom to scrutinize
the jury's verdict' than in a more complicated matter." Tokash, 548 F. App'x at 800 (citing
Williamson, supra, at 1352). Moreover, "a district court should not 'substitute its judgment of
the facts and credibility of the witnesses for that of the jury. ", Id. at 800-01 (quoting Sheridan v.
E.l Dupont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996) and citing Shanno v. Magee
Indus. Enters., Inc., 856 F.2d 562, 567 (3d Cir.l988».
Applying the foregoing standard, the Court finds no basis to conclude that a new trial is
warranted in this case.

Plaintiff s argument in support of a new trial is premised on the

assumption that the jury must have necessarily found that Plaintiff had been arrested prior to the

did not "file for judgment as a matter of law both before the case [was] submitted to the jury and after a verdict
[was] returned," Pediatrix Screening, Inc. v. TeleChem Int'l, Inc., 602 F.3d 541,546 (3d Cir. 2010) (citing Unitherm
Food Systems. Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 401-07 (2006)). See also Yohannon v. Keene Corp., 924
F.2d 1255, 1262 (3d Cir. 1991) ("[T]he failure to move for a directed verdict ... [i]n this circuit, ... wholly waives
the right to mount any post-trial attack on the sufficiency of the evidence."). The record before this Court indicates
that Plaintiff did seek a directed verdict on the limited issue of lack of probable cause, but she did not move for a
directed verdict based on any challenges relating to the issue of consent.

20

point at which she demanded a blood test. For the reasons previously discussed, this assumption
is unwarranted because the verdict slip can reasonably be interpreted as a finding by the jury that
Plaintiff was arrested only after she voluntarily consented to the arrest by demanding that she be
taken for a blood draw. The trial record in this case contains ample evidence supportive of such
a finding.
In answering the jury's question about when the Plaintiff is considered to be under arrest,
Judge McLaughlin instructed the jury consistent with Third Circuit Model Civil Jury Instruction
4.12.2, which states that the following factors, among others, may be considered: the length of
the interaction, whether the officer was diligent in pursuing the investigation or caused undue
delay, whether the officer pointed a gun at the plaintiff, whether the officer physically touched
the plaintiff, whether the plaintiff was moved to a police facility, and whether the officer stated
that he was placing the plaintiff under arrest. As Trooper Petrof points out, consideration of
these factors in light of the trial record supports a finding that Plaintiff was not arrested prior to
her demand that she be taken for a blood draw.

The entire incident, as reflected on the

Pennsylvania State Police videotape, lasted less than thirty minutes; II however, the critical
question is how much time had expired at the point that Plaintiff demanded the blood test. Both
sides agree that Plaintiffs demand came in connection with Trooper Petrofs unsuccessful
attempt to administer the portable breathalizer test, and the video reflects that this occurred
approximately 8 to 10 minutes into the traffic stop. Trooper Petrof spent the remainder of the
twenty minutes contacting his supervisor and awaiting transport assistance, while Plaintiff waited
in her car for a friend to come and retrieve her dog. However, these latter twenty minutes are

II Trooper Petroftestified that the ending ofthe videotape reflects the arrival of the Bradford city policy cruiser and
Trooper Palmer's departure from the scene in the state police cruiser, as Trooper Palmer had to transport a different
DUI suspect to the hospital for chemical testing. According to Trooper Petrof, Plaintiff was placed under arrest,
handcuffed, and placed into the city police cruiser immediately upon its arrival. (Trial Tr. vol. 2, pp. 60-61, 70.)

21

irrelevant to an arrest analysis because, by that time, Plaintiff had already manifested her
consent.

Thus, the evidence concerning the length of the interaction and the officer's

investigative diligence supports a finding that Plaintiff had not yet been arrested at the time that
she demanded the blood test. There is no suggestion that Trooper Petrof ever pointed a gun at
Plaintiff or physically touched her prior to her demand for the blood test. Although Plaintiff was
eventually handcuffed, told she was under arrest, and transported in a cruiser, this occurred only
after she had already manifested her consent.
Plaintiff urges the Court to consider other relevant evidence in the trial record. She
points to the fact that both Trooper Pettof and Trooper Palmer were present at the scene in full
uniform, including firearms, nightsticks, pepper spray, and holding large flashlights. She points
to the fact that she is considerably smaller than the Defendant. She also cites to her own trial
testimony, wherein she asserted that Trooper Petrof was angry, yelled at her, repeatedly
demanded that she take the PBT, waived the device in her face, and backed her up against her
vehicle until she had no place to move. 12
After careful review of the trial record, including the evidence cited by Plaintiff, this
Court cannot say that the jury's verdict represents a "miscarriage of justice," "cries out to be
overturned," or "shocks the Court's conscience." Williamson v. Consolidated Rail Corp., 926
F.2d at 1353; Marra v. Philadelphia Housing Authority, 497 F.3d at 309 n.18. The evidence of
record to the Court's estimation supports the judgment as entered by Judge McLaughlin, and the
Plaintiff has failed to demonstrate that the defense verdict entered by Judge McLaughlin is
against the weight of the evidence.
12 Based on this Court's review of the evidentiary record, the jury was required to resolve competing testimony and
other evidence on this point and other material issues, and the Court cannot conclude that the record evidence was
one-sided in a way that the jury was legally compelled to resolve them in the manner argued by Plaintiff. In light of
the trial record, on this point, the Plaintiff's Motion is in essence a request that the Court substitute its assessment on
such matters for that of the jury.

22

IV.

CONCLUSION
Based upon the foregoing discussion, the Plaintiffs motion to amend or alter the

judgment or for a new trial will be denied. An appropriate order follows.

~--

....

United States District Judge
Dated: May 12, 2014
cc:

All counsel of record.

23