Free Motion for New Trial - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) CITY OF PHOENIX, a body politic of the State ) of Arizona; OFFICER LYLE MONSON and ) JANE DOE MONSON, husband and wife; ) OFFICER NICHOLAS LYNDE and JANE DOE ) LYNDE, husband and wife; OFFICER TOBY ) DUNN and JANE DOE DUNN, husband and ) wife; OFFICER T. HEDGECOKE and JANE ) DOE HEDGECOKE, husband and wife; and R. ) GRIFFIN and JANE DOE GRIFFIN, husband ) ) and wife ) Defendants. ) ____________________________________ ) Plaintiff Teresa August moves for a new trial TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Civil Procedure, for the following reasons: Case No. CV03-1892 PHX ROS

PLAINTIFF'S RULE 59 MOTION FOR NEW TRIAL

pursuant to Rule 59, Federal Rules of

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(1)

Inadequate jury instruction regarding intent ­ the jury should have been

instructed that a §1983 claim does not require proof that Defendant intended to cause injury; (2) Dr. Beth Purdy should have been allowed to rebut Jeffeory Hynes'

demonstration of the forces and arm positions involved in the arm bar hold, which forces and

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arm positions Dr. Purdy would have explained were completely inconsistent with the one and
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only manner in which Mrs. August's elbow was dislocated; and (3) Defendants committed clear error when they wrongly inflamed the jury's

prejudice by strongly emphasizing in closing arguments Plaintiff's reference to Defendant Officer Toby Dunn as "fat boy." Plaintiff's reference was not relevant, and the only purpose for the emphasis was to inflame the injury against Teresa August and distract and prejudice the jury. (4) Defendants improperly injected a different case into the trial by eliciting

testimony from Commander Hynes about the details of a different case in which he had
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testified involving the excessive use of force on another female arrestee (who he alleged had
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been resisting arrest) who had suffered a dislocated shoulder. Plaintiff supports her Motion with the accompanying Memorandum. RESPECTFULLY SUBMITTED this 21st day of February, 2007. TREON & SHOOK, P.L.L.C. By: s/ Kelly Jo Daniel B. Treon Kelly Jo Attorney for Plaintiffs

MEMORANDUM 1. THE INTENT ELEMENT OF §1983 NEEDED TO BE CLARIFIED IN THE JURY INSTRUCTIONS A. The Instructions

In addition to proving causation, Plaintiff had to prove Defendants intended to act at the time they caused the injury to Mrs. August. As the testimony demonstrated, the intent of Defendants to grab and manipulate Mrs. August's arm was undisputed; they intended to seize physical control of Mrs. August. As discussed infra, a plaintiff must prove only a

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general intent to act, not a specific intent to injure. Since intent was not at issue, Plaintiff
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requested that the "intent" element of the excessive force jury instruction be removed, because it would only confuse the jury. Alternatively, Plaintiff requested an additional

instruction on the definition of intent to be applied in a §1983 case. The Court denied both the requested jury instruction and the alternate instruction, and chose to give the jury only the 9th Circuit Model Instruction1 with which the Court had previously articulated its dissatisfaction. In addition to giving the 9th Circuit Model Instructions on excessive force, the Court initially contemplated giving the following instruction on excessive force:

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42 USC §1983 does not require proof that Defendants acted willfully, or with specific intent to violate Plaintiff's rights.2 Ultimately, the Court gave only the model instruction, omitting the clarification of "intent." B. The Importance of an Instruction Clarifying Intent Given Defendants' Defense

There is no doubt that Mrs. August was injured during her arrest by Defendants. Defendants made the issue of whether they intended to injure Mrs. August the unequivocal focal point of their defense. Specifically, Defendants claimed, (1) the atrium; that they did not even hear Mrs. August complain of injury while touching her in

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The Court instructed the jury as follows, in pertinent part:

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On Plaintiff's claim that Defendants Dunn and Monson used excessive force to effect her arrest, the Plaintiff has the burden of proving each of the following elements as to each Defendant by a preponderance of the evidence: 1. The acts or omissions of Defendants Dunn and Monson were intentional: and 2. The acts or omissions of the Defendants Dunn and Monson were the cause of the deprivation of Plaintiff's rights protected by the Constitution or law of the United States. (emphasis added). Although the above text is the text that appeared on the page 15 of the Court's contemplated jury instructions, the Court stated verbally that it would change the end of the instruction from "Plaintiff's rights" to "injure Plaintiff"
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(2)
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that Mrs. August did not complain of any injury while they walked her from the

atrium to the police car; (3) it was only when Mrs. August was in the police car that she made any

complaint of any injury; (4) it was not until Mrs. August was in the patrol car, complained of injury, and

moved her arms around from their cuffed position from behind her back to show Officer Monson her contorted elbow, that Officer Monson had any inkling that Mrs. August might be injured; and (5) that Mrs. August's injury was "non-visible."

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Defendants' counsel pointedly elicited testimony related to intent from each
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Defendant, specifically asking them, "Did you intend to injure Mrs. August?" Each Defendant denied any specific intent to injure Mrs. August. The Defense bolstered these claims of lack of intent with the presentation of evidence suggesting that there would be no reason for the Defendants even to know that they were in the process of or had injured Mrs. August, based on their allegations that she never complained of pain until she was in the car, and even then the injury was "non visible," as related to the radio dispatch when the officers called the fire department to treat Mrs. August. C. Legal Analysis

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A motion for new trial may be granted for several reasons, including, if it is "necessary
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to correct manifest errors of law or fact upon which the judgment is based." Wolde-Giorgis v. Christiansen, 438 F.Supp.2d 1076, 78 (D.Ariz. 2006) (citing Turner v. Burlington Northern Sante Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003); see also Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940) (motion for new trial may

thus, the instruction would and should have read, "42 USC §1983 does not require proof that Defendants acted

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be based on "substantial errors in admission or rejection of evidence or instructions to the
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jury"). It was manifest error to not clarify the intent Plaintiff had to prove by defining "intent". The intent at issue in a §1983 claim is general intent, not specific intent. Sturges v. Matthews, 53 F.3d 659, 661-62 (4th Cir. 1995) (whether deputy intended to strike decedent's vehicle with his patrol vehicle or accidentally collided with decedent's vehicle determined issue of seizure under 4th Amendment). Under general intent, Mrs. August was not required to prove that Defendants intended to injure her; she just had to prove that the physical contact was not accidental. Plaintiff proved this by confirming with the officers that they intended to grab a hold of Mrs. August's arms and place handcuffs on her.

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To avoid the confusion of "intent," the jury instructions should have included a
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description of "the precise mental state required." United States v. Ruiz, 932 F.2d 1174, 1182 (7th Cir. 1991) (rejecting specific intent/general intent instructions; "[w]e have recommended to the district courts that they avoid instructions that drag the jury through the `specific intent/general intent' quagmire, because such instruction more than likely confuse rather than enlighten juries.") (citations, quotations omitted). Defendants seized the opportunity to improperly benefit from the jury's confusion regarding general intent by repeatedly emphasizing their lack of intent to injure Mrs. August, even specifically asking each Defendant whether he intended to injure Mrs. August.

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Defendants' implied misstatement of the law was never corrected by the Court. The rejected
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jury instruction, "42 U.S.C. §1983 does not require proof that the Defendants acted willfully or intended to injure Plaintiff," would have addressed any jury confusion enhanced by Defendants' improper insinuations. As a result, Plaintiff is entitled to a new trial. 2. CAUSATION OF MRS. AUGUST'S INJURY - PLAINTIFF SHOULD HAVE BEEN PERMITTED TO REBUT THE CAUSATION TESTIMONY OF JEFFEORY HYNES

willfully or with specific intent to injure Plaintiff."

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An additional dispute arose regarding the causation of Mrs. August's injury. Mrs. August's treating physician, Dr. Purdy, testified about her treatment of Mrs. August's dislocated elbow and the causation of the dislocation, inter alia. After Dr. Purdy testified, Defendants called Commander Hynes as an expert to testify

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about police procedures and the use of the arm bar hold. Commander Hynes, although not a
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doctor or a biomechanical engineer, demonstrated the arm-bar hold technique and showed how certain forces were applied to the arrestee's wrist and arm. After Hynes' demonstration and description of the forces involved in the arm-bar hold, Plaintiff sought to call Dr. Purdy to rebut witness. Although Dr. Purdy was her treating

witness and could therefore testify regarding causation of Mrs. August's injuries, the Court refused to permit Plaintiff to rebut Commander Hynes' demonstration of the very hold that the officers claimed they applied to Mrs. August's arm. It is proper for a treating physician to provide causation testimony. Piper v.

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Harnischfeger Corp., 170 F.R.D. 173, 175 (D. Nev. 1997) (causation testimony from treating
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physician is common place); and Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D. Colo. 1995) (treating physicians have opinion as to cause of injury based on examination of patient). Commander Hynes, Defendants' police procedures expert, provided the jury with a demonstration of an arm bar hold technique, and Defendants argued that the injury must have been caused by Mrs. August struggling because the application of a proper arm bar hold would not have caused injury. Dr. Purdy would have stated that the demonstrated movements would not have dislocated Mrs. August's elbow. As the treating physician, Dr.

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Purdy was a proper witness to rebut Hynes' demonstration of the forces claimed by the
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officers to have been employees when they handled Mrs. August's arm. Case 2:03-cv-01892-ROS -6Document 305 Filed 02/21/2007 Page 6 of 9

When arguing that Dr. Purdy should be allowed to rebut Commander Hynes, Plaintiff
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complained that Defendants had not disclosed that they would use Commander Hynes for a physical demonstration of the arm-bar hold. The court appeared to resolve the issue of Dr. Purdy's rebuttal testimony by putting the burden of objecting to Commander Hynes' demonstration on to Plaintiff. However, the court had already ruled that Dr. Purdy could be in the courtroom to observe the demonstration and so there was no point in Plaintiff objecting in front of the jury to what the court had already allowed to occur. It was Defendants who opened the door to argue appropriate rebuttal testimony by asking Hynes to demonstrate the forces and arm and wrist positions in an arm bar hold.

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Failure to permit rebuttal testimony can be grounds for a new trial. Wood v. Morbark
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industries, Inc., 70 F.3d 1201 (11th Cir. 1995) (failure to permit rebuttal testimony, along with jury instruction that was plain error, court abused discretion by failing to grant new trial). Because causation is a primary element of the excessive force claim, Dr. Purdy should have been allowed to rebut Hynes' proffered demonstrations of the forces and positions of the arm bar hold. 3. DEFENSE COUNSEL'S CLOSING ARGUMENTS WERE INFLAMMATORY AND PREJUDICIAL Mrs. August suffered a serious, permanent injury at the hands of Defendants, and the whole experience remains a very raw nerve for her emotionally. As a result, Plaintiff called Officer Dunn "fat boy" during the trial, when describing which officer twisted her arm. The jury's negative reaction was visible and audible. Defendants seized upon the jury's reaction and further inflamed the passion of the jury by making the comment a prominent part of closing arguments. Defendants included in their Power Point presentation a slide stating,

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"Mrs. August called Officer Dunn fat boy," and then discussed at length this name-calling.
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Improper closing arguments can require a new trial. Bird v. Glacier Electric Coop.,
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Inc., 255 F.3d 1136 (9th Cir. 2001) (counsel improperly inflamed all-Native American jury against White defendants in racially-charged closing argument); see also, Draper v. Airco, Inc., 580 F.2d 91, 95d Cir. 1978) (counsel's inappropriate references in closing argument to defendant's wealth, counsel's personal opinion about justness of his client's cause, reference to facts not in evidence and several prejudicial, vituperative and insulting references to opposing counsel justified new trial). Plaintiff's single incident of name-calling in the court room was irrelevant to the issues in dispute. The only purpose for emphasizing the irrelevant comment was to inflame and

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prejudice the jury.
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4.

COMMANDER HYNES' DISCUSSION OF ANOTHER CASE WAS IMPROPER Plaintiff questioned Commander Hynes on the single other case on which he had

been hired to testify. The single point of the questioning was to establish Hynes' lack of independence as that case involved a City of Phoenix police officer defendant, too. Defendants improperly asked Hynes about the facts of that case and elicited that it involved a female arrestee whose shoulder was dislocated as a result of her struggle during arrest and application of an arm bar hold. In eliciting this testimony, Defendants committed two plain and egregious errors. First,

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Defendants wrongly injected a different case into this matter.
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Second, they improperly

violated the court order precluding Hynes from testifying about the causal relationship between "resisting arrest" and dislocation injury. The court had ruled that Hynes could not opine about whether any movement by Mrs. August (that is, the alleged "resisting arrest") caused the injury. Hynes' testimony about the other female arrestee did just that, however,

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by proffering the conclusion that arrestees who resist, as had the other female, suffer
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dislocated joints because they resist. 5. CONCLUSION Plaintiff is entitled to a new trial on numerous individual grounds; considered in total, particularly the questioning and arguments of counsel for Defendants, a new trial is necessary in the interest of justice. For the aforestated reasons, Plaintiff respectfully moves for a new trial. RESPECTFULLY SUBMITTED this 21st day of February, 2007. TREON & SHOOK, P.L.L.C.

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By:
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s/ Kelly Jo Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on February 21, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:

s/ Aly Shomar-Esparza

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