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December 22, 1999


The opinion of the court was delivered by: June L. Green, District Judge.


Before the Court is Defendants' Renewed Motion Pursuant to Fed.R.Civ.P. 50 for Judgment as a Matter of Law, or in the Alternative, Pursuant to Fed.R.Civ.P. 59 Motion for Amendment of the Judgment and for a New Trial, or in the Alternative for Remittitur. The Plaintiff has filed an opposition, and the Defendants, their Reply. Also before the Court is Plaintiff's Post-Verdict Petition for Attorneys Fees and Costs, the Opposition and the Reply thereto. For the reasons that follow, the Defendants' motion is denied and the Plaintiff's Petition is granted.


This case arose out of the beating death of Plaintiff's son Eric Butera while he was serving as an undercover operative for the Metropolitan Police Department ("MPD"). Plaintiff brought this action under civil rights laws, District of Columbia law, and the common law, on the theory that the police acted improperly in failing to protect her son.

On October 5, 1999, the first phase of a bifurcated trial (liability/damages) began. On October 18, 1999, the Jury returned verdicts against the individual police officers on the civil rights claims and against all of the defendants on the negligence-based Wrongful Death Act and Survival Act claims. None of the Defendants were found to be liable under Plaintiff's intentional infliction of emotional distress claim.

The damages phase began immediately thereafter and, on October 20, 1999, the jury returned a total damage award of $98,100,000. The jury awarded $36 million and $34 million against the individual Defendants on the estate's civil rights claims and Plaintiff's own civil rights claims, respectively. The jury also awarded $68,000 on Plaintiff's Wrongful Death Act claims and $462,000 on the Survival Act claims. Punitive damage awards were returned against the District of Columbia in the amount of $27,000,000 for its negligence (the District was not found to be liable under the civil rights claims), and against the individual officers for their conduct in the amount of $142,500 each. Judgment on the verdict was entered on October 21, 1999.

The Defendants now move for judgment as a matter of law (Fed.R.Civ.P.50), or in the alternative to amend judgment and for a new trial (Fed.R.Civ.P.59), or in the alternative for remittitur of the damage award. As grounds, the Defendants state: 1) the Plaintiff did not offer sufficient evidence to establish an allegedly required national standard of care to prove any of her claims that the officers acted improperly; 2) the constitutional tort claims all are untenable because (i) the deceased was never in police custody, (ii) there is no constitutional right to the companionship of an adult child, and (iii) proximate cause was not proved because there was no evidence that decedent was killed solely because he was working for the police; 3) as a matter of law, punitive damages cannot be awarded against the District of Columbia and, in any event, evidence of Defendants' conduct did not support a punitive damage award against any of the Defendants; 4) remittitur of the damage awards is proper because the compensatory awards for the Wrongful Death Act and Survival Act claims are duplicative with the constitutional tort award and, the awards themselves are excessive in that they exceed the reasonable range within which a jury may operate; 5) Defendants were denied a fair trial because the Court refused to let them call certain witnesses; refused to strike certain testimony by Plaintiff's expert witnesses; refused to allow the Defendants to conduct reasonable cross-examination of witnesses; and refused to instruct the jury on an assumption of the risk defense. The Defendants also move on the basis that the Court abused its discretion by failing to grant their motions for a mistrial after Plaintiff's expert engaged in a conversation with a juror during a break in the proceedings, and later when the Plaintiff's attorney told the jury to "send a message" to the Defendants with its verdict. These issues shall be treated seriatum.*fn1



Under Fed.R.Civ.P. 50, the Court may 1) let the judgment stand, 2) order a new trial, or 3) direct entry of judgment (for Defendants) as a matter of law. The Court finds nothing in Defendants' motion to justify disturbing the judgment in this case.


Defendant first argues that the Plaintiff did not offer sufficient evidence to establish an allegedly required national standard of care to prove her claims that the officers acted improperly under any theory (negligence or constitutional claims). They state that Plaintiff's police practices expert, James Bradley, did not offer "reliable" evidence on the standard of care because he relied solely on a handbook and manual of the Drug Enforcement Administration ("DEA Handbook and Manual") for his opinion, rather than on information about the practices of other police departments across the country.

The Defendants' interpretation of what is required for a police practices expert to offer an opinion is too narrow. Although the Defendants rely on Toy v. District of Columbia, 549 A.2d 1 (1988), which determined that the testimony of the police practices expert was insufficient, that case is not on point with the facts here. In Toy, the police practices expert was a former MPD Assistant Chief who testified regarding a standard of care that he asserted required emergency resuscitation equipment near cellblocks for the treatment of inmates (the inmate in Toy had hung himself in his cell). The Court of Appeals reversed on the basis that the expert did not refer to any "written standards or authorities as support" and only named one police department where such emergency equipment was maintained. Id. at 7-8.

Here, of course, Mr. Bradley, who is a former detective of the MPD, stated that his reliance on the DEA Handbook and Manual was based on several factors including consultation with police officers of the Prince George's County Police, the MPD's practice of sending its officers to the DEA's training school, and his personal knowledge that the MPD adheres to the values and beliefs of the DEA in the training they give their officers. Trial Tr., 10/13/99, at 31-32. Mr. Bradley also stated that he relied upon the Narcotics Investigators Manual of the Institute of Police Technology and Management, University of North Florida, where the Metropolitan Police Department conducts training for its officers. Id. at 29.

The Court views reliance on such materials as proper to establish a national standard of care. Not only is the DEA a nationwide agency of the Federal Government, but even the Defendant District of Columbia recognizes its standards and expertise, as evidenced by the training its officers receive from the agency. While the "survey" approach discussed in Toy concerning the number of police departments in conformance with a purported standard of care has been discussed with approval (albeit in dicta), it certainly is not the only way to establish a national standard of care. In fact, such an approach by itself would be problematic. The Court would be reduced to reviewing the practices of hundreds or thousands of police departments and then setting an arbitrary number with regard to how many constitute a "national standard." That is not the direction in which the Court intends to go.

The Defendants make another assumption here as well — the necessity of a national standard of care. While the Court recognizes that some standard of care is required in order to show a tortfeasor's deviation therefrom, the Court is not so convinced that a national standard of care is necessary.*fn2 See e.g. District of Columbia v. Wilson, 721 A.2d 591 (D.C. 1998). Although Wilson was a case brought by a prisoner for medical malpractice, it is instructive. There the District of Columbia Court of Appeals expressly rejected the District's contention that a national standard of care was required and distinguished the line of cases cited (the same line of cases cited here*fn3), stating that each of those cases "presented claims that the District was negligent in failing to prevent a prisoner from committing suicide (Phillips, Clark, and Toy), or to protect a prisoner from assaults by other inmates (Moreno and Carmichael)." Wilson at 599. Here, as well, none of those cases are analogous to these facts, in which the District of Columbia undertook the personal protection of an individual and placed him in a high-risk situation, for their own benefit.

In fact, even without a national standard of care, the types of materials that Mr. Bradley relied upon appeared to the Court then, and now, as the types upon which an expert could reasonably rely to form an opinion.*fn4 Fed.R.Evid. 703. Not only did these materials provide a proper foundation for expert opinion, but served to assist the jury in making the ultimate determinations in this case. Contrary to what Defendants suggest, the Court did not abdicate its role as "gatekeeper" under the standard stated in Kumho Tire v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). After a lengthy voir dire, the following colloquy took place:

  MR. GRENIER (Pl's.Counsel): Your Honor, at this time
  we tender to the Court Mr. James E. Bradley, Jr., as
  an expert witness in the areas of police procedures
  and the national standard of care applicable to this

THE COURT: Any voir dire?

  MR. KOGER [Def. Counsel]: No, your Honor. We would
  simply ask for a clarification as to what the
  national applicable standard of care to this
  operation is — a definition of this operation for
  purposes of the jury's understanding.
  MR. GRENIER: Well, Your Honor, then I will modify
  that. I will say that we tender Mr. Bradley to the
  Court as an expert in the national standard of care
  in police procedures, period. (Emphasis added.)
    Defense counsel has previously acknowledged that
  there is a national standard of care applicable to
  the Butera operation itself and to the incident that
  brings us here today.
  MR. KOGER: No objection, Your Honor. (Emphasis

THE COURT: All right.

Trial Tr., 10/12/99, at 16,17.

The Court was convinced of Mr. Bradley's expertise (as, it appears, were the Defendants) and so qualified him. His ensuing testimony did nothing to change that certification.


Defendants next attack the "deliberate indifference" standard used to prove Eric Butera's constitutional deprivations. The Defendants state that the deliberate indifference standard discussed in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), is not applicable here because 1) Eric Butera was not under government restraint or control, 2) his injuries were not caused by government actors, and 3) he was not in custody at the time he was killed. (Mot. at 12.)

The Court has partially addressed this issue already in its earlier Memorandum and Order denying Defendants pre-trial Motion for Summary Judgment. (Mem. and Ord., 7/7/99, 1999.) There, the Court determined that the deliberate indifference standard (rather than the higher "intend to cause harm" standard) was applicable here because the police chase in Sacramento was not analogous to the facts here. In so ruling, the Court found that "the [Defendant] officers themselves planned the drug-buy operation in advance and from the safety of their own offices. They were not facing a rapidly evolving situation, and it is disputed whether the drug-buy operation was even necessary to their murder investigation." Id. at 9.

Now, however, the Defendants add a new twist to their earlier argument and contend that neither standard (deliberate indifference or intent to harm) is sufficient to find a constitutional deprivation. The Court disagrees.

While it is true that neither the Supreme Court nor the D.C. Circuit has ruled expressly on the viability of a due process claim for those not in police custody (or the equivalent), so too, they have not precluded such a claim. Both the Defendants and Plaintiff cite the case DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), which involved the state's release of a young boy into the custody of his known-to-be abusive father, and who was then viciously beaten to death by the father. The Supreme Court found no due process violation stating that "when [the State] returned [the child] to his father's custody, it placed him in no worse position than that in which he would have been if it had not acted at all." Id. at 201, 109 S.Ct. 998. The Defendant's seize on this statement and argue that the Defendants "did no more than allow [Eric Butera] to return voluntarily . . . to a position in which he had repeatedly placed himself before," meaning the residence where he had previously purchased drugs. (Mot. at 15.) Unfortunately for the Defendants, the jury did not accept this characterization of the Defendants' conduct, nor does the Court now.

The evidence (to a large extent undisputed) was that the police enlisted the aid of Eric Butera with a promise of protection, subjected him to a highly dangerous situation, failed to inform him of critical information about those dangers (i.e.; the previous night's "drug bust" at the target premises), and failed to follow safety procedures for such an operation. The Defendants' conduct actually had the effect of increasing the danger quotient to Eric Butera. This is not the same as DeShaney. Here, the Defendants affirmatively put Eric Butera in a much worse position than he otherwise would have found himself.*fn5

The Plaintiff cites the Seventh Circuit's decision in Monfils v. Taylor, 165 F.3d 511, 520 (7th Cir. 1998), to support this very reasoning. There, the court cited an exception to the custodial relationship requirement, finding that due process could be violated where the state "affirmatively places a particular individual in a position of danger the individual would not otherwise have faced," a so-called "state-created danger" exception.*fn6 Id.; see also Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998) (state may be liable under section 1983 for increasing the risk to an individual of private acts of violence). This reasoning comports with cases from our Circuit as well as the D.C. Court of Appeals, concerning "special relationships" between the police (or rescuers) and the public. See, e.g., Martin v. Malhoyt, 830 F.2d 237, 259 (D.C.Cir. 1987); Morgan v. District of Columbia, 468 A.2d 1306, 1312 (D.C. 1983); Allison Gas ...

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