Newman v. Vagnini et al

Filing 102

ORDER signed by Judge J.P. Stadtmueller on 4/3/2017: ADOPTING IN PART AND REJECTING IN PART 81 Report of Magistrate Judge William E. Duffin on the issue of extraneous prejudicial information presented to the jury; GRANTING IN PART AND DENYING IN PART 92 Defendants' Motion to Vacate and for a New Trial; DENYING without prejudice 64 Plaintiff's Motion for Attorney's Fees; and DENYING 97 Plaintiff's Motion to Revise the Court's 10/18/2016 Order. Plaintiff to make election regarding the Court's remittitur by 4/17/2017. See Order. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE JAMES NEWMAN,
Plaintiff,
v.

Case No. 15-CV-1363-JPS

MICHAEL VAGNINI, JEFFREY CLINE,
and PAUL MARTINEZ,

ORDER
Defendants.
1.

INTRODUCTION
On November 23, 2016, the jury returned its verdict in this matter in

favor of Plaintiff Willie James Newman (“Newman”). (Docket #62). On
January 11, 2017, pursuant to the briefing schedule established by the Court,
Defendants Michael Vagnini (“Vagnini”), Jeffrey Cline, and Paul Martinez
(“Martinez”) (collectively, “Defendants”) filed a motion to vacate the jury’s
verdict. (Docket #92). The motion is now fully briefed, and for the reasons
explained below, it will be granted in part and denied in part.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure (“FRCP”) 59 permits a party to seek

a new 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). In clearer
terms, this means that “[a] new trial is appropriate if the jury’s verdict is
against the manifest weight of the evidence or if the trial was in some way
unfair to the moving party.” Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir.
2014). FRCP 60 allows the Court to vacate a judgment based on, inter alia, a
mistake, newly discovered evidence, fraud by a party, satisfaction of the
judgment, or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b).

Relief under FRCP 60 is an “extraordinary remedy and is granted only in
exceptional circumstances.” Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir.
2010). Under both rules, the Court’s determination is constrained only by its
sound discretion. Venson, 749 F.3d at 651, 656.
3.

ANALYSIS
Defendants offer two primary arguments in favor of vacating the

jury’s verdict. First, they claim that a juror’s conduct tainted the jury’s verdict,
denying them a fair trial. Second, they contend that even if the verdict stands,
both the compensatory and punitive damages awards are excessive and must
be reduced. The Court addresses these arguments in turn.
3.1

Juror Misconduct

Defendants challenge the verdict based on alleged juror misconduct,
namely that a juror, who will be identified as Juror Number One, conducted
internet research during the trial which influenced the jury’s deliberations. On
December 8, 2016, Defendants filed a motion requesting that the Court
question that juror. (Docket #67). The Court referred the motion and
evidentiary hearing to Magistrate Judge William E. Duffin, who granted the
motion to question the juror and issued a report on his evidentiary findings
after holding a sealed hearing (the “Report”). (Docket #81). The Court will
first address the Report and then moves on to the substance of the parties’
arguments on the misconduct issue.
3.1.1 Magistrate Duffin’s Report
Defendants filed their motion to question Juror Number One in light
of information found by their attorneys on the juror’s publicly available
Facebook postings. Id. at 2. After receiving the verdict, Defendants’ counsel
directed their staff to conduct internet research on the jurors. Id. This included
viewing Juror Number One’s public Facebook postings. Id. On November 26,
Page 2 of 27

2016, three days after jury’s verdict was received, Juror Number One posted
a link to a local television station’s report on the verdict. Id. at 3-4. The next
day, a person commented on that post, stating:
Why don’t you become a judge? If you can sit through
that ish [sic] and not lose your ish- you should just be the judge.
You researched the payouts of similar cases. You have a
psychology background and can tell when people are b.s.ing.
You could do a lot of good everyday. What if you made it to
the supreme court?
(Docket #69-1 at 21). Juror Number One replied to the comment, “Maybe
some day!” Id.
Given the content of the Facebook post, Defendants requested that
Juror Number One be questioned to determine “whether extraneous
prejudicial information was improperly brought to [the jury’s] attention.”
(Docket #67 at 1). Magistrate Duffin issued the Report on December 19, 2016,
and Newman submitted objections thereto on January 3, 2017. (Docket #90
and #91). The Report is subject to de novo review. 28 U.S.C. § 636(b)(1).
Newman presents two objections. First, he suggests that Magistrate
Duffin erred in determining that Defendants’ Facebook research was
appropriate. The Court agrees with Magistrate Duffin. General Local Rule
47(c) prohibits parties or their agents from “approach[ing], interview[ing], or
communicat[ing] with a venire member or juror, before, during or after trial,
except on leave of Court granted upon notice to opposing counsel and upon
good cause shown.” Gen. L. R. 47(c). There is no evidence that Defendants or
their counsel communicated with any juror in conducting their research.
Further, Defendants accessed only what information the jurors themselves
made available by posting it to the public portion of their Facebook profile.
While the Court recognizes Newman’s concern regarding overly intrusive
Page 3 of 27

post-verdict investigations, that simply did not occur here. The undeniable
fact that the internet makes so much information so readily available does not
render accessing such information improper.1
Newman’s second objection is to Magistrate Duffin’s finding on the
witnesses’ credibility. Magistrate Duffin conducted a sealed evidentiary
hearing wherein he questioned Juror Number One as well as the jury’s
foreperson. (Docket #81 at 5-6). In light of the strong policy reasons against
intruding on a jury’s deliberations, Tanner v. U.S., 483 U.S. 107, 117-28 (1987),
Magistrate Duffin limited his questioning to the issue of “whether any matter
not presented as evidence at trial was nonetheless improperly presented to
the jury, . . . avoid[ing] any questions about what role any such outside
information played in the jury’s deliberations[.]” (Docket #81 at 4). Magistrate
Duffin found as follows:
The court questioned Juror Number One. Juror Number
One authenticated the posts contained in ECF Nos. 69-1 and
69-2 as coming from her Facebook page. She testified that she
did not conduct any outside research during the trial. However,
she testified she is a “researcher by nature” and, therefore,
immediately following the completion of the trial on
November 23, 2016, she researched what victims of police
misconduct, including victims of unlawful strip searches,
received in other cases. It was this research that the commenter
on her post, whom she characterized as her best friend, was
referring to on Facebook. When asked if she shared with other
jurors anything that she learned from any outside research, she
1

Newman equates Defendants’ internet research to “having undercover
officers discretely follow the jurors, post-verdict, and eavesdrop on the jurors’
conversations with other people, in public places[.]” (Docket #91 at 2). That
analogy is inapposite. A public Facebook posting is not a private conversation
between two persons on the street, but is akin to using a megaphone to shout one’s
thoughts to anyone within earshot. In fact, if the posting is truly public (depending
on how a person decides to issue the post), it may be accessible to anyone across the
globe who has access to Facebook.

Page 4 of 27

said she did not. She denied having any knowledge of the
actors in this case prior to trial or conducting any research
regarding any of them during the trial.
The court then questioned the jury foreperson. The
foreperson denied that any juror provided the jury information
as to what compensation persons in similar cases received.
However, the foreperson testified that, on the second day of
deliberations, Juror Number One asked if the jury would like to
know what she learned by doing research about awards in
other civil actions. The jury members agreed they would and
Juror Number One provided information as to what she
learned in her research. The foreperson did not have a specific
recollection of what information Juror Number One provided
but did recall that the cases were not related to police
misconduct; they might have been employment discrimination
cases. The foreperson did not know when Juror Number One
undertook such research and did not know Juror Number
One’s source, although the foreperson suspected it was the
internet. It was the foreperson’s belief that Juror Number One
was not providing information based upon her personal
experience.
The court finds that the testimony of the two witnesses
to be in conflict. Based upon the court’s observations of the
witnesses during the hearing, the testimony of the witnesses,
and evidence presented with the defendants’ motion, the court
finds that the greater weight of the credible evidence supports
the finding that Juror Number One did do research on payouts
in other civil actions during the trial and before the jury
rendered its verdict. The court finds the foreperson’s testimony
more credible to the extent that it conflicts with that of Juror
Number One.
Id. at 5-6.
Newman contends that Magistrate Duffin’s finding of conflict between
the two jurors’ testimony is erroneous. Juror Number One testified that she
did not do any research during the trial nor did she share that information
with her fellow jurors. (Docket #91 at 3-8). Defendants counter that this

Page 5 of 27

testimony is contrary to that of the foreperson, as noted by Magistrate Duffin.
(Docket #94 at 4-8). In essence, according to Defendants, Magistrate Duffin
concluded that Juror Number One’s testimony was untruthful. Id. at 6.
Newman’s objection on this point is overruled to the extent that he
asserts that there was no conflict between the testimony of the witnesses. The
Court has reviewed the transcript of the sealed hearing and agrees with
Magistrate Duffin that the conflict is apparent. Juror Number One testified
that she did not share any of her research with her fellow jurors, while the
foreperson testified that she in fact volunteered such information. (Docket #88
at 8-9, 13-14).
However, there remains the issue of the timing of Juror Number One’s
research. This raises several interrelated questions. Did Juror Number One do
any research on research on “the payouts of similar cases”? Yes, and the juror
confirmed as much, though as both witnesses testified, the word “similar”
meant other civil cases generally, not strip search cases in particular. Id. at 610, 12-13. Specifically, the foreperson testified that the cases “may have been
an employer/employee sexual misconduct-type case, and they were not in
Wisconsin; it was like Florida or, you know, someplace else entirely[.]” Id. at
13. Next, did Juror Number One do research on Defendants at any time prior
to the jury’s verdict? No; Juror Number One testified that she did not and the
foreperson confirmed that such research was never discussed in the jury’s
deliberations. Id.
The final question, then, is whether Juror Number One conducted
research on “similar cases” during the trial (hereinafter, this is the “research”
the Court references). Magistrate Duffin says yes, finding that “the greater
weight of the credible evidence supports the finding that Juror Number One
did do research on payouts in other civil actions during the trial and before
Page 6 of 27

the jury rendered its verdict.” (Docket #81 at 6). This Court finds that on the
record before it, Magistrate Duffin’s conclusion was mistaken. Juror Number
One testified at various points that she did not do any research during the
trial:
THE COURT: Okay. Let me ask you, specifically during the
time period from when the trial started, so beginning on or
about 9:00 a.m. on Monday morning -[JUROR NUMBER ONE]: Uh-huh.
THE COURT: November 21st -[JUROR NUMBER ONE]: Uh-huh.
THE COURT: -- and you guys reached a verdict, were done by
roughly noon on Wednesday -[JUROR NUMBER ONE]: Correct.
THE COURT: -- during that time period, so from the beginning
of the trial to when the jury came back with its verdict, did you
do any research, investigation or search relating to what
compensation people received or should receive after being
subjected to illegal strip searches or other cases of police
misconduct?
[JUROR NUMBER ONE]: No.
...
THE COURT: Okay. I think you probably -- this is probably
encompassed within what you’ve already said, but did you
during the trial -- so between the beginning of the trial and the
reaching of a verdict, did you do any research in any way
whether it’s internet research or otherwise related to any
person involved in the case?
[JUROR NUMBER ONE]: No.
...
THE COURT: So when [the Facebook post commenter] was
talking about the research she did -- that you did, you're talking
-- she’s referencing what you told her about the research that
you did after the case was over?
[JUROR NUMBER ONE]: Well, she knows that I research
everything; but also I twice took the LSAT prep course, which
I did not complete; and so she knows that I’m already
knowledgeable of several cases and things like that.
THE COURT: Independent of this case?
Page 7 of 27

[JUROR NUMBER ONE]: Independent. This is years ago, yes.
Correct. But she knows that I’m -- that's who I am. I know a lot
about other things, which I have a paper that -- I know that
they -THE COURT: That’s okay.
[JUROR NUMBER ONE]: Okay.
(Docket #88 at 7-8, 9-10). None of this testimony states that any research was
conducting during the trial, and in fact, the final quoted portion suggests that
the research occurred long before the trial. Id. at 10 (“Independent. This was
years ago, yes.”). Understandably, the foreperson had nothing to say on the
timing of Juror Number One’s research; the foreperson testified only that the
information was apparently internet research and not, for instance, stemming
from a case involving Juror Number One herself. Id. at 14-15.
Therefore, the Court is unable to find that Juror Number One’s
research was conducted during the trial, and is therefore obliged to sustain
Newman’s objection as to the timing of this research.
3.1.2 Extraneous Information and Prejudice
Defendants’ motion to vacate first argues that Juror Number One’s
research brought extraneous, prejudicial information into the jury’s
deliberations. When “a jury is exposed to material not admitted into
evidence,” the losing party “is only entitled to a new trial if there is a
reasonable possibility that the evidence had a prejudicial effect upon the
jury’s verdict.” United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996). The
question becomes “the degree and pervasiveness of the prejudicial influence
possibly resulting from the jury’s exposure to the extraneous material.” Id.
(quotation omitted). The Court must remember that this inquiry is strongly
disfavored and must therefore be extremely limited. Tanner, 483 U.S. at 127.

Page 8 of 27

The first hurdle Defendants must pass is a showing that Juror Number
One’s research was “extraneous” to this case.2 The Seventh Circuit explains
the relevant inquiry:
This Circuit has held that while due process may require
some sort of hearing to determine whether extraneous contacts
may have affected a jury’s ability to be fair, the standard
applies only to prejudicial extraneous contacts, and not to
preexisting juror bias. In the due process context, the tool for
examining an intrinsic influence like juror bias is voir dire.
[A juror’s] prior experience with an ankle injury
constitutes an intrinsic influence that does not require an
evidentiary hearing, let alone a new trial. See Marquez v. City of
Albuquerque, 399 F.3d 1216, 1223 (10th Cir. 2005) (“[A] juror’s
personal experience does not constitute extraneous prejudicial
information.”); Peterson v. Wilson, 141 F.3d 573, 577-78 (5th Cir.
1998) (holding that juror discussion of personal past experience
is not “extrinsic” evidence that requires a new trial). Moreover,
jurors are expected to bring commonly known facts and their
experiences to bear in arriving at their verdict. “We cannot
expunge from jury deliberations the subjective opinions of
jurors, their attitudinal expositions, or their philosophies. These
involve the very human elements that constitute one of the
strengths of our jury system.” Shillcutt v. Gagnon, 827 F.2d
1155, 1159 (7th Cir. 1987) (internal quotations omitted).
Although jurors may not go beyond the record to develop their
own evidence, they are entitled to evaluate the evidence
presented at trial in light of their own experience.
Arreola v. Choudry, 533 F.3d 601, 606 (7th Cir. 2008) (citations omitted).

2

The Court notes that the focus of the parties’ citations is on “premature
deliberation or . . . pre-deliberation statements indicating [a juror] had already
made up their mind[].” United States v. Farmer, 717 F.3d 559, 565 (7th Cir.
2013).Those are not the operative questions here. Instead, the only issue is whether
Juror Number One’s research, brought to the table in deliberations, was extraneous
and prejudicial.

Page 9 of 27

The Court finds that Juror Number One’s research was not
“extraneous.” It occurred before this matter was called for trial, at a time
when Juror Number One was under no constraints from the Court as to
whether the research was appropriate. The juror was further entitled to bring
her experience, including the research, to the jury’s deliberations. The juror
is “a researcher by nature” and that philosophy cannot be excluded from
deliberations merely because the research in question concerned legal issues.
(Docket #88 at 7).
Moreover, the information she obtained went beyond the pale of what
is “extraneous.” The Court views “extraneous” material as that which bears
directly on the parties and specific events involved in a trial, but which was
not properly presented to the jury in the courtroom as admissible evidence.
Juror Number One’s research falls well short of that; it was entirely unrelated
information having nothing to do with Defendants, the events underlying this
case, or even police misconduct generally.
This conclusion is supported by reference to the Court’s instructions
to the jury during trial. The Court instructed the jury to determine the facts
based on the evidence presented at trial. (Docket #87 at 29, 31). As to research
specifically, the Court instructed that
I do not want any of you to conduct any independent
research or make any investigation of either the facts associated
with this case or the individual witnesses or the parties or their
lawyers.
You are ultimately called upon to decide the facts from
the evidence to be presented and in accordance with the
Court’s instructions on the law and from no other source. This
means that until the jury is discharged, you may not conduct
any independent research. In other words, you may not consult
with any form of reference material including blogs,
dictionaries, internet websites or searches to obtain information
Page 10 of 27

either about the facts of this case or anyone who has
anything to do with it.
Id. at 35-36 (emphasis added). In its final instructions, the Court informed the
jurors that they may “consider and view the evidence in light of your own
observations and experiences in the affairs of life” and may draw inferences
from the evidence based on their life experience. (Docket #85 at 121, 127).3
In each of its pre-recess reminder instructions to the jurors, the Court
asked them not to discuss the case amongst themselves or with anyone else.
For example, for the recess prior to closing arguments, the Court stated that
the jurors “can talk about anything, including who has the best recipe for
turkey on Thursday, or who might be the next coach of the Green Bay
Packers, or some other interesting topic; but please do not discuss this case
-- or anyone who has anything to do with it.” (Docket #85 at 119). As the
Court found above, Juror Number One did not do any research on
Defendants or anything to do with police misconduct. Her research on
unrelated cases, forms only a part of her “observations and experiences in the
affairs of life[.]” See id. at 121. As with any pre-trial research, she was free to
bring that into the jury’s deliberations. Her actions comported with the
Court’s instructions and they form no basis to impugn the verdict.
Defendants’ primary argument is that Juror Number One not only lied
about sharing her research with the jury, and when she did the research, but
also the subject of the research. Namely, they contend that:
A simple Google search using the name “Michael
Vagnini” or the term “strip search” results in the production of
a plethora of information regarding other cases involving
allegations of unlawful searching by Milwaukee police officers,

3

Defendants offered no objections to any of the cited instructions.

Page 11 of 27

related criminal prosecutions and civil cases and civil case
settlements, [a]long with the criminal prosecution of four
former officers, including Officer Vagnini, and their
resignations from the MPD. It is likely that if Juror No. 1, who
admittedly is “a researcher by nature,” turned on her computer
and entered these or other related phrases, she uncovered the
above-described information and more. Thus, Juror No. 1 likely
considered highly inflammatory information that was not
presented during the trial, much less admitted into evidence. If
she uncovered that information, and then shared it with the
jury (as was likely, given the testimony of the foreperson), she
infected the entire jury pool with bias, and thus tainted the
validity of the verdict on all counts.
(Docket #93 at 9-10). The Court cannot follow Defendants along this chain of
inferences. Both Juror Number One and the foreperson testified that no
information regarding other police misconduct cases came into the jury’s
deliberations, much less information about Defendants themselves.
Defendants’ proffered inferences are mere speculation which are wholly
insufficient to support a claim of juror misconduct. See United States v.
Morales, 655 F.3d 608, 630 (7th Cir. 2011); United States v. Moore, 641 F.3d 812,
829 (7th Cir. 2011).4
Because the Court finds that Juror Number One’s research was not
“extraneous,” it need not reach the question of prejudice to deny Defendants’
motion as to this point. On a final note, Defendants contend that if the jury’s
verdict is vacated per their request, the Court can simply enter judgment in
their favor “given the preponderance of evidence in their favor, as developed

4

Defendants hint at a secondary argument related to Juror Number One’s
voir dire responses. (Docket #99 at 5). They imply that she failed to disclose her
research in those responses. However, Juror Number One was never asked any
question where such a disclosure would be merited. See (Docket #87 at 2-28).
Defendants did not object to the Court’s voir dire examination and cannot allege
fault in it now.

Page 12 of 27

during the trial.” (Docket #93). Not only do they fail to cite any relevant law
in support of the argument, see id. at 10-14, the Court will not vacate the
verdict, as discussed above. The argument is, therefore, moot.5
3.2

Damages

Defendants’ second argument is leveled at the jury’s damages awards,
not the verdict itself. Defendants contest both the compensatory and punitive
damage awards. Newman’s compensatory damage award was as follows:
$150,000 as to Vagnini for his unreasonable search, and $60,000 as to each of
Cline and Martinez for their failure to intervene to stop the search, for a total
of $270,000. (Docket #62 at 1-4). The jury also awarded a total of $1,725,000
in punitive damages, assessed to Defendants as follows: $1,125,000 against
Vagnini, $200,000 against Cline, and $400,000 against Martinez. Id. at 4-6.

5

It is not clear whether Defendants desire their “great weight of the
evidence” argument to stand regardless of whether juror misconduct succeeds in
knocking out Newman’s verdict. Assuming they did, it would fail for two reasons.
First, Defendants did not preserve the argument by submitting the appropriate
intra- and post-trial motions. See Fed. R. Civ. P. 50(a)-(b); see Empress Casino Joliet
Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 823 (7th Cir. 2016). Second, the
standard of review renders the argument toothless. See supra Part 2; Moore ex rel.
Estate of Grady v. Tuelja, 526 F.3d 423, 427 (7th Cir. 2008) (“A verdict will be set aside
. . . only if no rational jury could have rendered the verdict. Jury verdicts deserve
particular deference in cases with simple issues but highly disputed facts.”)
(citations and quotations omitted). The evidence at trial was, as stressed repeatedly
by the parties, a pure credibility determination. See, e.g., (Docket #84 at 30) (from
Defendants’ opening statement: “[W]e agree that this is a case that really is a who
do you believe, and that’s why we’re here for you. If you believe Mr. Newman’s
version of the story, there was an unlawful search; the manner of the search was
inappropriate. If you believe what the officers will tell you, the search was
perfectly lawful and appropriate and reasonable given the circumstances.”). This
was the epitome of a simple case with highly disputed facts. Moore, 526 F.3d at 427.
The jury found Newman more credible than Defendants and the Court cannot
substitute in its own feelings on the matter. The jury clearly had a rational basis on
which to find for Newman.

Page 13 of 27

Court takes up the compensatory damages first, as they inform the Court’s
analysis of appropriate punitive damages.
3.2.1 Compensatory Damages
When a party challenges a compensatory damages award as being
excessive, the Court examines three factors: (1) whether the award is
monstrously excessive; (2) whether there is no rational connection between
the award and the evidence; and (3) whether the award is roughly
comparable to awards made in similar cases. Deloughery v. City of Chicago, 422
F.3d 611, 619 (7th Cir. 2005). Awards that are “monstrously excessive” and
which lack a rational connection to the evidence are generally one-and-thesame—they are irrational. Adams v. City of Chicago, 798 F.3d 539, 543 (7th Cir.
2015). Irrational awards are those which are the “product of passion and
prejudice,” or “the jury’s fevered imaginings or personal vendettas.” Id.; G.G.
v. Grindle, 665 F.3d 795, 798 (7th Cir. 2011). In determinating the rationality
of an award, “the district court must review the trial record as a whole in the
light most favorable to the verdict. This perspective is essential, if we are to
preserve the jury’s role as the trier of fact.” Adams, 798 F.3d at 543.
Newman’s evidence of his damages was brief. Indeed, the entirety of
his testimony on the point was presented in just a couple of minutes:
Q [by Newman’s attorney Mr. Bornstein]: How did [Vagnini’s
search] make you feel?
A [Newman]: Man, it was humiliating. You know, it was -Made me feel less than a man. Never been through anything
like that, you know.
...
Q: Now, I want to talk a little bit about the way this made you
feel, what Officer -- then Officer Vagnini did to you. When Mr.
Vagnini pulled your pants down in public and touched your
bare genitals with his bare hand, how did that make you feel?

Page 14 of 27

A: First of all, it was humiliating to me as a man, another man
just doing this to me. I feel horrible now. I never felt like that
day in my life. I never been through anything like that, and it
was embarrassing. It was just -- It was terrible now, and then
-- I mean, it was out in public.
Q: Well, do you still think about it?
A: Yeah, I think about it.
Q: Even though six years have passed?
A: It was like, you know, when you violated and you know you
violated, and there’s nothing being done -- nothing had been
done; so, yeah, it’s still messing with me sometimes.
Q: Is it any less painful for you today than it was six years
ago?
A: No.
(Docket #84 at 53, 64-65). Shenena Townes, Newman’s former spouse, said
that soon after the search, Newman told her “he was clearly upset” about
having been searched. Id. at 114. As to the search itself, even viewing the
evidence most favorably to the verdict, it lasted only a few moments in the
early morning darkness with no non-party witnesses present (at least none
who testified at trial). Newman presented no other evidence on damages,
such as mental health treatment or employment or family problems.
Newman’s position is unlike that of the plaintiff in his primary
citation, Joan W. There, Joan W. was arrested and strip searched pursuant to
Chicago’s unconstitutional blanket strip search policy. Joan W. v. City of
Chicago, 771 F.2d 1020, 1021 (7th Cir. 1985). Joan W. was forced to expose her
vaginal and anal areas while the searching officers laughed and cussed at her.
Id. As to her damages, Joan W. testified that
the incident caused her emotional distress that manifested itself
in reduced socializing, poor work performance, paranoia,
suicidal feelings, depression, and an inability to disrobe in any
place other than a closet. She introduced evidence tending to
show that she was peculiarly sensitive to the kind of physical
Page 15 of 27

violation she had endured because she was a private person
who even during high school gym classes could not completely
disrobe in front of others and was conscious of her physical
disabilities caused by her chronic arthritis.
Id. at 1021-22. The court nevertheless decided that the jury’s award of
$112,000 was excessive and reduced it to $75,000. Id. at 1025.
In so doing, the Joan W. court relied on its previous opinions regarding
similar searches, Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983),
and Levka v. City of Chicago, 748 F.2d 421 (7th Cir. 1984). In Mary Beth G., the
plaintiffs’ distress “was adequately corroborated by persons who knew the
women best. The testimony revealed, inter alia, instances of shock, panic,
depression, shame, rage, humiliation, and nightmares, with lasting effects on
each woman’s life.” Mary Beth G., 723 F.2d at 1275. Further, “each woman
still thinks about the strip search, and each woman’s attitudes and
relationships with others have been colored by the experience.” Id.
In Levka, the court found that the plaintiff’s damages were excessive.
In additional to suffering humiliation and horror during a search similar to
those experienced in the other cases, Levka testified that she became
frightened to go out alone at night, including to movies or parties, and sought
some limited psychiatric treatment. Levka, 748 F.2d at 423. Other witnesses
corroborated Levka’s statements and further testified to the negative impact
Levka’s distress had on her daily life and employment. Id. at 423-24. The
defendant countered with witnesses showing that Levka regularly left her
home, went out at night, and that the distress had no relation to her work
problems. Id. at 424. The court held that the defendant adequately
undermined Levka’s position that “she has become a prisoner in her own
home,” and that her single psychiatrist visit was inconsistent with her claim

Page 16 of 27

of severe trauma. Id. at 427. It concluded that Levka’s evidence was
insufficient to support the jury’s $50,000 damage award, especially when
compared to similar cases (discussed further infra), and remitted the award
to $25,000. Id. at 425-27.
The Court finds that the jury’s award in this case was irrational against
the backdrop of the evidence presented. The Court does not discount
Newman’s humiliation, but

the search was exceptionally brief and,

notwithstanding the fact that the participants were technically “in public,”
was not seen by anyone other than the parties at trial. Newman offered no
evidence of lasting trauma other than that he thinks about the search today
and it still “mess[es] with [him] sometimes.” (Docket #84 at 65). He did not
testify to any psychiatric or other medical treatment he sought or received
following the search, nor did he attribute any lasting employment or social
problems to the search. Newman’s search was different than those in Joan W.
and Mary Beth G., where the plaintiffs offered evidence of distress which
impacted their personal, social, and professional lives. Indeed, Newman’s
evidence is even less than that in Levka, where she at least attempted to
establish lasting harms, though the court found that their severity was
diminished by countervailing testimony.
Having concluded that Newman’s compensatory damage awards are
irrational, the Court must determine a more appropriate value. This task is
quite difficult because Defendants have failed to cite any comparators, and
Newman offers only one, Joan W., an opinion which was issued more than
thirty years ago. This may be because so few cases of this type result in
appellate decisions. In the recent past, the majority of the Seventh Circuit’s
opinions on purportedly excessive compensatory damage awards involve
employment discrimination or retaliation. See E.E.O.C. v. Autozone, Inc., 707
Page 17 of 27

F.3d 824, 834 (7th Cir. 2013). Left with little alternative, the Court considers
this relevant yet aged precedent in arriving at an appropriate award.
As noted above, Joan W. and its related cases involved very similar
facts, and all were based on the City of Chicago’s unconstitutional strip
search policy. Though Newman also alleged that Vagnini’s search was done
pursuant to an unofficial City of Milwaukee policy, that claim was dismissed
on summary judgment for lack of evidence. See (Docket #35). It is also unclear
as to whether any of the 1980s Chicago strip search plaintiffs presented policy
evidence in support of their damages claims. Thus, the Court finds that these
damage awards may be used as rough comparators. Even so, the Court is
reminded that “[a]wards in other cases provide a reference point that assists
the court in assessing reasonableness; they do not establish a range beyond
which awards are necessarily excessive.” Lampley v. Onyx Acceptance Corp.,
340 F.3d 478, 485 (7th Cir. 2003). The Lampley court further noted that “[d]ue
to the highly fact-specific nature of Title VII cases, such comparisons are
rarely dispositive.” Id. The Court’s determination is similarly fact-specific and
is therefore not tightly bound to the 1980s strip search cases.
The Hardy case is also instructive on the appropriate compensatory
award. Hardy v. City of Milwaukee, 88 F.Supp.3d 852 (E.D. Wis. 2015). There,
in a case involving an unlawful stop, frisk, and false arrest by a City of
Milwaukee police officer, the jury awarded compensatory damages of $6,000.
Id. at 882. While this award was not subject to appellate review, the Court
nevertheless believes it provides a good barometer for the award in this case,
given its recency and the similarity of the claims.
As noted above, Newman’s compensatory damage award totaled
$270,000. (Docket #62 at 1-4). As summarized in Bailey,

Page 18 of 27

At the time Joan W. was decided, at least ten suits had been
tried before juries in the Northern District of Illinois. Damage
awards ranged from a low of $3,300 to a high of $60,000. The
jury’s award of $112,000 to Joan was clearly disproportionate
to the earlier awards. We went on to examine the factual
circumstances of each of the cases and found that some of the
searches were more aggravated than the search to which Joan
had been subjected. . . . Based on this comparison, we believed
that the damage award was excessive to the extent it exceeded
$75,000.
Bailey v. Andrews, 811 F.2d 366, 374 (7th Cir. 1987). Adjusted for inflation, the
amounts compiled by Joan W. range from approximately $8,000 to $180,000.
See (Docket #95 at 23 and #96).6 Newman’s award greatly exceeds even the
top of this range, as well as the Hardy award.
The Court believes that, in light of the above-cited case law and the
mitigating circumstances of his strip search, an award of $7,500 is supported
by the evidence.7 Adjusted proportionally, the award for Vagnini becomes

6

Newman offered inflation-adjusted figures in a table in his brief.
Defendants did not object to them in their reply. The Court nevertheless takes issue
with his calculations to the extent they were all based on 1978 dollars. (Docket #96).
The jury verdicts in those cases were entered from 1982 to 1984. Levka, 748 F.2d at
425. The figures stated in-text are adjusted for 1983 dollars, using the same
inflation calculator Newman utilized. See U.S. Dept. of Labor Bureau of Labor
Statistics, CPI Inflation
Calculator,
available
at:
https://www.bls.gov/data/inflation_calculator.htm.
7

Newman cites two aging Seventh Circuit opinions in support of the
Court’s application of the “maximum recovery rule.” (Docket #95 at 22). That rule
“directs that the court set [a remitted damages] amount based on the highest
amount of damages that the jury could properly have awarded based on the
relevant evidence.” Jabat, Inc. v. Smith, 201 F.3d 852, 858 (7th Cir. 2000) (quotation
omitted). Those are the only two opinions which discuss that rule, suggesting that
it is little used. See id.; Spesco, Inc. v. Gen. Elec. Co., 719 F.2d 233, 240-41 (7th Cir.
1983). In any event, that is what the Court has done here; it has remitted the
compensatory damages to the level supported by the evidence.

Page 19 of 27

$5,000, and the awards for Cline and Martinez become $1,250 each. The Court
will discuss the procedural implementation of this remittitur below.
3.2.2 Punitive Damages
Defendants initially argue that punitive damages are not warranted in
any measure because their conduct was not malicious. A jury may award
punitive damages in a Section 1983 case if it finds “that [Defendants were]
‘motivated by evil motive or intent’ or acted with ‘reckless or callous
indifference’ to [Newman’s] constitutional rights.” Wright v. Miller, 561 F.
App’x 551, 555 (7th Cir. 2014) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).
The Seventh Circuit, in the context of a Section 1981a claim, held that “[a]
plaintiff may satisfy [the malice] element by demonstrating that the relevant
individuals knew of or were familiar with the anti-discrimination laws but
nonetheless ignored them or lied about their discriminatory activities.”
AutoZone, Inc., 707 F.3d at 835 (quotation omitted). Extending that standard
to this case, the Court finds that Defendants’ malice may be shown with
evidence that they knew of the constitutional rules applicable to searching a
person but ignored them and lied about doing so.
Applying FRCP 59(a)’s deference to the jury’s verdict, it is clear that
the jury properly awarded punitive damages. Defendants testified that they
were trained on and knew how searches should be appropriately conducted.
See (Docket #84 at 172-73, 184, 199-201, 216; Docket #85 at 67-81, 100, 108, 111,
115). They also testified to their own version of the events of April 30, 2010,
which was directly contradictory to Newman’s. Id. In finding for Newman
on his compensatory damage claims, the jury concluded that Defendants had
lied on the witness stand regarding their version of the events. See (Docket
#62 at 1-4). In awarding punitive damages, the jury was entitled to consider
that Defendants knew what they did violated Newman’s constitutional
Page 20 of 27

rights. The jury had ample evidence upon which to find the requisite motive
to support a punitive damages award.
Defendants next challenge the amount of punitive damages as
excessive. Recall that the total punitive damages award was $1,725,000.
(Docket #62 at 4-6). Punitive damages “serve the same purposes as criminal
penalties[,]” and thus such damages must comport with due process. State
Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003). When punitive
damage awards are “grossly excessive,” due process may be offended.
Farfaras v. Cit. Bank & Trust of Chicago, 433 F.3d 558, 567 (7th Cir. 2006). The
Supreme Court has announced three guideposts to help courts evaluate this
concern. These are: “[1] the degree of reprehensibility of the defendant’s
conduct; [2] the disparity between the harm suffered by the plaintiff and the
punitive damages award; and [3] the difference between the award in this
case and the penalties imposed in comparable cases.” Gracia v. SigmaTron
Int’l, Inc., 842 F.3d 1010, 1023 (7th Cir. 2016) (citing BMW of North America,
Inc. v. Gore, 517 U.S. 559, 574-75 (1996)).
The first guidepost is “[p]erhaps the most important indicium of the
reasonableness of a punitive damages award.” Autozone, 707 F.3d at 838. The
Supreme Court has offered specific guidance on assessing reprehensibility:
We have instructed courts to determine the
reprehensibility of a defendant by considering whether: [1] the
harm caused was physical as opposed to economic; [2] the
tortious conduct evinced an indifference to or a reckless
disregard of the health or safety of others; [3] the target of the
conduct had financial vulnerability; [4] the conduct involved
repeated actions or was an isolated incident; and [5] the harm
was the result of intentional malice, trickery, or deceit, or mere
accident. The existence of any one of these factors weighing in
favor of a plaintiff may not be sufficient to sustain a punitive
damages award; and the absence of all of them renders any
Page 21 of 27

award suspect. It should be presumed a plaintiff has been
made whole for his injuries by compensatory damages, so
punitive damages should only be awarded if the defendant’s
culpability, after having paid compensatory damages, is so
reprehensible as to warrant the imposition of further sanctions
to achieve punishment or deterrence.
State Farm, 538 U.S. at 419 (citations omitted).
As to the first factor, Newman’s harm did not involve physical injury
to him or the infliction of pain. Rather, it caused him psychological harm.
Still, the factor weighs in Newman’s favor, as the injury was not merely
economic. As to the second, Defendants’ conduct did not show an
indifference to anyone’s health or safety. The strip search here lasted only a
few moments and was motivated, as the evidence showed, by Defendants’
belief that Newman was armed or had illegal contraband. The third factor is
largely irrelevant to this case, and no evidence was received on Newman’s
wealth. As to the fourth factor, the Court excluded evidence of any other
similar acts by Defendants. See (Docket #41 and #55). The final factor does not
clearly favor either side; though the jury found Defendants’ conduct
“malicious or in reckless disregard” of Newman’s rights, that is not the same
as intentional malice towards Newman himself. See, e.g., (Docket #62 at 4).
In sum, though Defendants’ actions were certainly reprehensible, the
weakness of some of these factors reveals that the current level of punitive
damages exceeds that which is necessary to punish them.
The second guidepost requires comparison of the compensatory and
punitive awards made by the jury, which shows the “ratio between punitive
damages and the actual harm inflicted on the plaintiff.” Auto-Zone, 707 F.3d
at 839 (quotation omitted). The Seventh Circuit has noted that “[t]he Supreme
Court has repeatedly declined to set a fixed ratio to limit punitive damages
Page 22 of 27

based on constitutional grounds, but it has recognized that in practice, ‘few
awards exceeding a single-digit ratio between punitive and compensatory
damages . . . will satisfy due process.’” Id. at 839 (quoting State Farm, 538
U.S. at 424-25).
In light of the Court’s reduction of the compensatory damage awards,
the ratio between the punitive and compensatory damages is now 230:1.
While it is true that “[t]he smaller the compensatory damages, the higher the
ratio of punitive to compensatory damages has to be in order to fulfill the
objectives of awarding punitive damages,” those objectives are left far behind
by this exorbitant disparity. Cooper v. Casey, 97 F.3d 914, 919 (7th Cir. 1996).
The punitive damages award must be reduced substantially in order to
comport with due process-approved ratios.8

8

Defendants also attempt to revive an argument this Court rejected in
Hardy. There, “[t]he City[] [argued] that the Court should reduce the punitive
damages award using a 1:1 ratio, creating federal common law that imposes such
a limit on all civil rights cases.” Hardy, 88 F.Supp.3d at 879. Defendants, also
represented by the City Attorney’s Office which litigated Hardy, advance the very
same position here. (Docket #93 at 17-18). Hardy rejected the argument:
First, the primary case cited by the City, Exxon Shipping Co.
v. Baker, 554 U.S. 471 . . . (2008), is a maritime case. Second, the
Court cannot find any cases from the Seventh Circuit or any other
circuit that adopt such a limit. In fact, the Court cannot find any
case law that even questions whether punitive damages in civil
rights cases are available at ratios higher than 1:1. Finally, the
Seventh Circuit considered whether to extend Exxon Shipping’s 1:1
ratio to civil rights cases and implied it would not, though it did
not ultimately need to reach the question. Kunz v. DeFelice, 538 F.3d
667, 678-79 (7th Cir. 2008).
Id. at 879-80. Defendants have again cited Exxon Shipping and again fail to point to
any Seventh Circuit case adopting its rule. (Docket #93 at 18). The Court must
continue to reject this argument.

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The third guidepost may be the most telling in this case, but also the
most troublesome. It is troublesome for lack of truly comparable cases. As
observed in Hardy, “[t]he fact-specific nature of claims, particularly in the civil
rights context, results in a dearth of apples-to-apples comparisons.” Hardy,
88 F.Supp.3d at 883. The parties have each cited a number of potential
comparators, none of which genuinely approximates the specific facts of this
case, and which vary widely in what they believe is an acceptable award. See,
e.g., McKinley v. Trattles, 732 F.2d 1320 (7th Cir. 1984) (prisoner believed to
have contraband was strip searched, including a search of his anal cavity;
appellate court suggested that the trial court should remit the punitive
damages of $15,000 to no more than $6,000); Romanski v. Detroit Ent., L.L.C.,
428 F.3d 629 (6th Cir. 2005) (false arrest of an elderly woman in a casino over
alleged theft of a five-cent token; appellate court remitted punitive damage
award from $875,000 to $600,000). Hardy did its best to marshal relevant
Seventh Circuit-approved punitive damage awards, which ranged from 2:1
to 10:1 ratios between punitive and compensatory damages. Hardy, 88
F.Supp.3d at 883. Finally, Hardy itself, which as noted above involved similar
police misconduct, reduced a $500,000 award to $54,000. Id. at 884. These
cases starkly demonstrate that the current ratio of punitive to compensatory
damages cannot stand.
In light of Defendants’ due process rights and the Supreme Court’s
guidance thereon, the Court must reduce the jury’s punitive damages award.
It concludes that a constitutionally permissible total award is $45,000. As
divided proportionally among Defendants, the figures are $30,000 as to
Vagnini, $5,000 as to Cline, and $10,000 as to Martinez.

Page 24 of 27

4.

CONCLUSION
In light of the foregoing, the Court will uphold the jury’s verdict but

reduce the damages awards as follows:
Compensatory damages as against:
Vagnini:

$5,000

Cline:

$1,250

Martinez:

$1,250

Punitive damages as against:
Vagnini:

$30,000

Cline:

$5,000

Martinez:

$10,000

Total damages:

$52,500

This is a substantial reduction from the amounts awarded by the jury, but the
Court believes that viewing all of the evidence in light of applicable
precedent, this is the most that could have been appropriately awarded to
Newman.
Newman thus has a choice to make. If he consents to the remittitur of
his damage awards, judgment will be entered accordingly. Adams, 798 F.3d
at 542; Fox v. Hayes, 600 F.3d 819, 846 (7th Cir. 2010). If he rejects the
remittitur, the Court will vacate the awards entirely and conduct a new trial
on damages. Id. The Court will afford Newman until April 17, 2017 to make
his election. He should do so by way of a pleading filed with the Court.
The Court notes that Newman has a pending motion for attorney’s
fees. (Docket #64). As the prevailing party in this matter, and in light of the
extensive motion and trial practice necessary to litigate it, he is likely entitled
to a substantial award of fees. 42 U.S.C. § 1988; Fed. R. Civ. P. 54(d)(1). If the
remittitur is accepted, the Court will refer the matter of Newman’s fee award
Page 25 of 27

to a randomly-assigned magistrate judge for mediation. If he chooses to have
a new trial on damages, the mediation referral will occur at the conclusion of
that proceeding. In either event, the arguments in Newman’s fee motion will
require adjustment to conform with any new damage award(s) and the fees
he has incurred since it was filed. The Court will, therefore, deny the pending
motion for attorney’s fees without prejudice.
Finally, the Court addresses Newman’s motion to revise the Court’s
October 18, 2016 summary judgment order. (Docket #97). There, the Court
dismissed the City of Milwaukee (the “City”) from this action with prejudice
for Newman’s failure to present a triable Monell claim against it. (Docket #35
at 16). Newman asserts that his indemnification claim, which is still active,
is directed at the City, and so the City should not have been entirely
dismissed from this action. (Docket #98). He asks that the Court revise the
summary judgment order in accordance with FRCP 54(b) and 60(b).
Defendants counter that state law requires the City to indemnify them
regardless of whether it is formally included as a defendant in this action.
(Docket #100); see Wis. Stat. § 895.46. While the Court appreciates Newman’s
concern, it is form over substance; the City will ultimately pay any judgment
in this case. His motion will be denied.
Accordingly,
IT IS ORDERED that the evidentiary report of Magistrate Judge
William E. Duffin on the issue of extraneous prejudicial information
presented to the jury (Docket #81) be and the same is hereby ADOPTED in
part and REJECTED in part in accordance with the terms of this Order;
IT IS FURTHER ORDERED that the defendants’ motion to vacate
and for a new trial (Docket #92) be and the same is hereby GRANTED in
part and DENIED in part in accordance with the terms of this Order;
Page 26 of 27

IT IS FURTHER ORDERED that the plaintiff shall make his election
regarding the Court’s remittitur in accordance with the terms of this Order
no later than April 17, 2017;
IT IS FURTHER ORDERED that the plaintiff’s motion for attorney’s
fees (Docket #64) be and the same is hereby DENIED without prejudice; and
IT IS FURTHER ORDERED that the plaintiff’s motion to revise the
Court’s October 18, 2016 order (Docket #97) be and the same is hereby
DENIED.
Dated at Milwaukee, Wisconsin, this 3rd day of April, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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