Collado v. The City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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AMARILIS COLLADO, ;

as Administratrix of the Estate of

Her Husband JOHN COLLADO, SR., :

Plaintiff, : OPINION

- against - 11 Civ. 9041 (DC)

THE CITY OF NEW YORK, New York City — :

Police Department ("NYPD") Detective

JAMES CONNOLLY, Shield # 4294, ;

Defendants. ;

ee ee □□□ rrr rrr rer eee ete - - X

APPEARANCES: EMERY CELLI BRINCKERHOFF & ABADY LLP

Attorneys for Plaintiff

By: Earl S. Ward, Esq.

Samuel Shapiro, Esq.

600 Fifth Avenue, 10th Floor

New York, NY 10020

ZACHARY W. CARTER, Esq.

Corporation Counsel of the City of New York

Attorney for Defendants

By: Brian Francolla, Esq.

Melanie Speight, Esq.

100 Church Street

New York, NY 10007

CHIN, Circuit Judge:

On September 6, 2011, defendant James Connolly, a New York City Police

Department ("NYPD") detective, was part of a field team engaged in narcotics

enforcement operations in the Inwood area of Manhattan. Connolly was conducting

"observations," in plain clothes, on Post Avenue. He saw suspicious activity and

concluded that drugs were being sold at 26 Post Avenue. He entered the lobby of the

building and observed two men in an apparent drug transaction. Connolly identified

himself as a police officer and began to arrest the man he believed to be the seller. The □

man, however, lunged at Connolly, knocking him to the ground, and tried to run out to

the street. Connolly grabbed him, but the man managed to drag Connolly through the

lobby doors and out of the building. Outside on Post Avenue, Connolly and the man

continued to struggle as the man tried to escape.

John Collado, Sr. ("Collado"), who lived nearby, saw the altercation from

up the block. He ran to intervene. He inserted himself into the altercation by grabbing

Connolly. At that point, Connolly pulled his firearm and fired one shot into Collado's

stomach. Collado died several hours later.

Collado's widow, Amarilis Collado (Mrs. Collado"), brought this action

pursuant to 42 U.S.C. § 1983 and New York State law, contending, inter alia, that

Connolly violated Collado's civil rights by using excessive force. On November 1, 2018,

at the conclusion of the second trial in this case (the first trial had ended in a mistrial),

the jury found in favor of Mrs. Collado and against Connolly, awarding compensatory

and punitive damages totaling $14,325,000.

oO x

Before the Court are Connolly's motions for judgment as a matter of law

pursuant to Fed. R. Civ. P. 50, for a new trial pursuant to Fed. R. Civ. P. 59, and for

remittitur. For the reasons set forth below, the motions are granted in part and denied

in part.

STATEMENT OF THE CASE

A. The Facts?

On September 6, 2011, Connolly was conducting "observations" as a

member of an NYPD field team assigned to the Inwood area of Manhattan. (Second

Trial Tr. at 169-70).? He was in plain clothes -- a green rain jacket and jeans -- and was

carrying a gun and pepper spray as well as handcuffs, a radio, and a cell phone; his gun

and badge were underneath his jacket and could not be seen. (Id. at 162, 170-71, 182).

Four other officers were part of the team, in three different cars. (Id. at 29-32, 162, 170,

294-95, 297).

At approximately 5:00 pm, Connolly proceeded on foot northbound on

Post Avenue, looking for drug activity. (Id. at 31-32, 170-71, 176-77). Neither he nor his

As Mrs. Collado prevailed at trial and is the party opposing judgment as a matter of law,

the evidence is construed in her favor and she is entitled to the benefit of all reasonable

inferences for purposes of that motion. Caceres v. Port Auth. of New York & New Jersey, 631 F.3d

620, 622 (2d Cir. 2011); Black v. Finantra Capital, Inc., 418 F.3d 203, 209 (2d Cir. 2005). The Court

notes, however, with respect to the motion for a new trial, that it "may weigh the evidence and

the credibility of witnesses and need not view the evidence in the light most favorable to the

verdict winner." Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012),

2 Connolly joined the NYPD in July 2006, after serving four years of active duty in the U.S.

Marine Corps. (Id. at 168). In September 2011, he was assigned to Manhattan North narcotics

division. (Id. at 169). At the time of trial, he was a sergeant assigned to the FBI's joint major

theft task force and was married with two daughters. (Id. at 168-69).

sft ss

partner (Detective James White) informed other team members that Connolly was

walking up Post Avenue alone. (Id. at 32-33, 295, 303-04). While on Post Avenue,

Connolly saw what he believed to be drug activity, and he entered 17-23 Post Avenue to

get a better vantage point. (Id. at 174-77). In the lobby, he spoke briefly with Steven

Polanco. (Id. at 179, 181). Based on the conversation, Connolly concluded that Polanco

“was going across the street to buy drugs." (Id. at 180). Without radioing anyone from

his team, Connolly exited the building, stepped aside, and waited as Polanco left the

building and proceeded across the street. (Id. at 33-34, 180-82, 295, 303). Polanco

entered 26 Post Avenue. (Id. at 182-84).

Connolly hurried across the street and was able to catch the door to 26

Post Avenue before it shut. (Id. at 183-85). In the lobby, he saw Polanco handing

money to an individual later identified as Rangel Batista. (Id. at 185). Batista was □

holding "a large clear bag with a bunch of small zips of marijuana inside" along with

money. (Id. at 185-87; see DX E).? Connolly displayed his police shield, verbally

identified himself as a police officer, and warned the two men not to move. (Id. at 187).

As Connolly was about to handcuff Batista, Batista lunged toward Connolly, slamming

him against the wall. (Id. at 187-88). Connolly fell to the ground, and Batista ran to get

out of the building. (Id.). Connolly got to his feet, gave chase, and managed to grab

2 References to "PX" and "DX," respectively, are to plaintiff's exhibits and defendant's

exhibits received at trial.

_4.-

Batista just as Batista reached the first of two doors. (Id.). Batista proceeded to drag

Connolly out, through two doors and onto the street. (Id. at 188-89).

Outside on Post Avenue, Connolly and Batista continued to struggle. (Id.

at 189-90). As Connolly held on, Batista dragged him across to the east side of Post

Avenue, trying to escape. (Id. at 136-37, 189-90, 334-35). Out on the street, Connolly

shouted "police," although he did not do so repeatedly. (Id. at 451; Doc. No. 140).

Bartolo Diaz was heading up the block when he saw his "friend" Collado walking

toward him. (Second Trial Tr. at 88-89). As they exchanged pleasantries, a woman

passing by said to them "[t]hose two are going to kill each other." (Id. at 89). Several

witnesses described Connolly and Batista as "fighting" (id. at 90 (Diaz)), "struggling with

each other, one trying to get off, one trying to grab the other" (id. at 309 (Perez)), and

"[florcing against each other" (id. at 327-28 (Peralta Lopez)). Batista “was pushing

[Connolly] in order to escape," "shoving him, trying to push him away." (Id. at335

(Peralta Lopez)).

Referring to Batista as "Carlota" and to Connolly as "the light-skinned

man,” Diaz testified that the two were on the ground, "scuffling" and "holding each

other's hands," with Carlota "on top of the light-skinned man." (Id. at 91; see also id. at

100-01).4 He heard the light-skinned man -- "the one on the bottom" -- saying "Please,

please, please." (Id. at 91; accord id. at 101 ("I heard [the light-skinned man] begging,

"The partes stipalated that "Carlota" was Batista. (Second Trial Tr. at 309-10).

«i.

‘Please, please, please."")). Both men were tired, "beat." (See id. at 315-16; see also id. at

189-90). The two had been struggling for approximately a minute and a half. (See PX

44B (clock readings).

At that point, Collado interceded, as he tried to separate the two; he

reached down, grabbed Connolly by the arm and shoulder, and "yanked him out." (Id.

at 92; see also id. at 317 (Perez testifying that Collado grabbed Connolly from behind,

pulling him back by the shoulders), 331 (Peralta Lopez testifying that Collado "grabbed

hold of the policeman, as to separate him from [Batista]," "like around his neck").5

Collado let go of Connolly, and Batista tried to run. (Id. at 92, 311). But Connolly

grabbed hold of him again, and the two were struggling again, standing. (Id. at 92-93).

Collado got in between them to try to separate them, with his arms open and both

hands out, on the other two men’s chests. (Id. at 93-95). Collado was saying "Stop, stop,

stop." (Id. at 94). A shot was fired. (Id. at 94, 311-312). Connolly had pulled his

weapon and, without saying anything, shot Collado in the stomach. (Id. at 93-95, 115,

322; see also PX 5).

Connolly and Collado were close to each other when the shot was fired,

facing each other, touching each other. (Id. at 93, 115-16, 311-12, 332-33). One witness

described them as "wrestling." (Id. at 311). Despite Connolly's testimony to the

Diaz testified that as Collado was yanking Connolly out, "Carlota punched [Connolly] in

the face." (Id. at 92; see also id. at 108-09). The jury, however, found that Batista did not punch

(or push) Connolly after Collado intervened. (Id. at 451; Doc. No. 140).

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contrary, Collado did not at any time put Connolly in a headlock or choke him or slam

him into a car. (Id. at 100, 312, 320, 335, 337, 339, 451; Doc. No. 140). One witness

(Peralta Lopez), however, saw Batista pushing Connolly as Connolly was against a car.

(Id. at 335). She also testified that Collado had his arm around Connolly's neck, and that

he "grabbed hold from the neck," although she clarified that it was "very brief," "no

more than three seconds." (Second Trial Tr. at 337-38, 341).’

After he was shot, Collado held his hip, on the right side, and then

stumbled, falling to the ground. (Id. at 95). As he lay on the street, he remained

conscious, "moaning" in pain. (Id. at 57). After White arrived on the scene, Collado told

White that he had been shot. (Id. at 57). White saw that Collado was bleeding, but

handcuffed him anyway. (Id. at 57-58). An ambulance eventually took Collado to a

hospital; he was "screaming in pain" while in the ambulance. (Id. at 128-29; PX 14). He

was conscious for 50 minutes before he was given anesthesia at the hospital for surgery.

(Second Trial Tr. at 234). The bullet had traveled through "many loops of bowels, small

intestine, large intestine, many blood vessels in the abdomen, and many nerves in the

Connolly testified that Collado came from behind and placed him in a choke hold, while

Batista was punching him. (Id. at 191-94). He specified that Collado's arm was "under my chin,

like, up against my neck, all the way wrapped around tight, squeezing." (Id. at 192). He

testified that he thought "they were going to kill me at that point." (Id. at 194). The jury did not

accept this testimony. (Id. at 451; Doc. No. 140).

Connolly is approximately 5'5" and of slight build. (Id. at 318). Both Collado and

Batista were substantially bigger than him. (Id. at 189, 244, 317-18, 328). Collado was 5'9" and

about 240 pounds." (Second Trial Tr. at 244). Peralta Lopez testified that Batista seemed "taller"

and "stronger" than Connolly. (Id. at 328).

□

abdomen." (Id.). He had no more pain after he was administered anesthesia. (Id. at

235). He died a few hours later; the cause of death was a gunshot wound to the

abdomen. (Id.; PX 5).

On September 6, 2011, Collado was 43 years old (PX 7, 24) and lived at 17

Post Avenue with his wife (Mrs. Collado), their two-year-old son (John J.), and his

mother, who suffered from Alzheimer's. (Second Trial Tr. at 124, 126). Collado had five

other children: Jenny, John, Jr., Amy, Kariel, and John IL. (Id. at 123). He was home, on

disability, and was not working. (Id.). He had gone out to buy some groceries when he

ran into Diaz and then intervened in the fight. (Id. at 89-90, 128).

B. Prior Proceedings

Mrs. Collado commenced this action against Connolly on December 12,

2011. (Doc. No. 1). By amended complaint filed November 5, 2012, Mrs. Collado added

the NYPD and the City of New York (the "City") as defendants. (Doc. No. 17). By

second amended complaint filed April 12, 2013, Mrs. Collado also added claims against

the other members of the tactical team. (Doc. No. 25). The claims against the individual

defendants other than Connolly, White, and Sergeant Ronald Smith were voluntarily

dismissed on November 10, 2015, (Doc. No. 60). Defendants thereafter moved for

summary judgment as to certain of the claims, and, by memorandum and order entered

June 16, 2016, the Court (Batts, J.) granted the motions and dismissed the claims setts

8 As of October 30, 2018, Jenny, John, Jr., Amy, Kariel, and John II were, respectively, 32,

29, 22, 21, and 20 years old; John J. was 10 years old. (Id.).

aR

White and Smith and certain of the claims against the City. (Doc. No. 70). Defendants

did not move for summary judgment with respect to the excessive force claim against

Collado or the respondeat superior claims against the City.

By memorandum and order entered September 27, 2017, Judge Batts ruled

on the parties’ motions in limine. (Doc. No. 97). On May 14, 2018, the case was

reassigned to the undersigned. I conferenced the case on May 30, 2018. (Doc. No. 106).

The City confirmed that Connolly was acting within the scope of his employment as an

NYPD detective during the incident, and that, under the doctrine of respondeat superior,

if the jury were to find Connolly liable on the excessive force claim, the City would be

“automatically liable as a matter of law." (5/30/2018 Tr. at 3-4; Doc. No. 106). Ina

memorandum decision entered July 20, 2018, I ruled that the City would be removed

from the caption as a defendant for trial and that it could not be referred to as a

defendant at trial. (Doc. No. 108).

As a consequence of the pretrial rulings and stipulations, only one claim

remained to be tried: Mrs. Collado's claim that Connolly violated Collado's civil rights

by using excessive force against him.

Trial commenced on July 30, 2018. The jury was unable to reach a

unanimous verdict, and on August 7, 2018, I declared a mistrial. (First Trial Tr. at 716-

59).

=G

The retrial commenced before a new jury on October 29, 2018. On

November 1, 2018, the jury returned a unanimous verdict, finding by a preponderance

of the evidence that Connolly "used excessive force against John Collado.” (Doc. No.

139; Second Trial Tr. at 435). The jury awarded damages as follows:

@ Collado's pain and suffering: $300,000;

o Collado's loss of enjoyment of life: $2.5 million;

° compensatory damages for monetary losses sustained by his

family: $1.5 million;

e funeral and burial expenses: $25,000; and

° punitive damages: $10 million.

(Second Trial Tr. at 435-37; Doc. No. 139). The total award was thus $14,325,000.

After the verdict was taken, the parties were given an opportunity to

address the jury again, and the jury was asked to answer special interrogatories.

(Second Trial Tr. at 438-45, 450-53).° The jury answered the special interrogatories as

follows:

1. Did John Collado choke Det. Connolly?

Answer: No.

De Was Mr. Collado choking Det. Connolly when the shot was fired?

Answer: No.

3A. Did Det. Connolly shout "police" out on the street?

9 Connolly requested the use of special interrogatories. (First Trial Tr. at 595-96). Over

Mrs. Collado's repeated objections, I ordered that they be used. (See id. at 597, 609-16, 705-10,

720-24, 726-28).

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Answer: Yes.

3B. If yes, did Det. Connolly do so repeatedly?

Answer: No.

4. Did Mr. Batista punch or push Det. Connolly after Mr. Collado

intervened?

Answer: No.

(Second Trial Tr. at 451; Doc. No. 140).

There remained the question of qualified immunity. The partieshad

agreed that this was an issue for the Court and not for the jury. (First Trial Tr. at 598-

601). These post-trial motions followed.

DISCUSSION _

Connolly argues that (1) he is entitled to judgment as a matter of law

based on the qualified immunity defense; (2) the jury's damages award must be set

aside or remitted; and (3) he is entitled to a new trial. I address each argument in turn.

A. Qualified Immunity

1. Applicable Law

"As a general matter, police officers who violate a plaintiff's constitutional

rights are nevertheless entitled to qualified immunity if their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known," Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir. 2003) (internal quotation

marks and citations omitted), or "it was objectively reasonable for them to believe their

acts did not violate those rights," Kerman v. City of New York, 374 F.3d 93, 108 (2d Cir.

Te

2004) (quoting Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994)). The standard is an

objective one, "asking not whether the defendant officer acted in good faith or what he

himself knew or believed, but rather what would have been known to or believed by a

reasonable officer in the defendant's position." Outlaw v. City of Hartford, 884 F.3d 351,

367 (2d Cir. 2018). The qualified immunity doctrine recognizes that "reasonable

mistakes can be made as to the legal constraints on particular police conduct.” Saucier v.

Katz, 533 U.S. 194, 205 (2001)."° If an officer's mistake as to what the law requires is

reasonable, the officer is entitled to qualified immunity. Id.

Whether a right was clearly established is a question of law, and whether

a defendant's conduct was objectively reasonable, that is, whether a reasonable officer

would have reasonably believed that his conduct did not violate a clearly established

right, is a mixed question of law and fact. Kerman, 374 F.3d at 108-09. Where the

material facts are in dispute, "the factual questions must be resolved by the factfinder,”

id. at 109; see also Outlaw, 884 F.3d at 367-68 ('"The jury may be asked to make its findings

by answering special interrogatories."), and only after the factfinder has determined the

facts may the court then "make the ultimate legal determination of whether qualified

immunity attaches on those facts," Outlaw, 884 F.3d at 367 (quotation marks and citations

a In Pearson v. Callahan, the Supreme Court held that the two-step procedure set forth in

Saucier for courts to resolve qualified immunity claims -- courts are to first determine whether

plaintiff has alleged a violation of a constitutional right, and second, if so, they are to then

determine whether the right at issue was clearly established -- "should not be regarded as an

inflexible requirement." 555 U.S. 223, 227 (2009). In other words, the courts may take the two

inquiries in either order.

~'[..

omitted). The use of special interrogatories "may not only help focus the jury's

attention on the excessive force aspect of the inquiry, but also may help the court

resolve the ultimate question of whether it would be clear to a reasonable officer in [the

officer's] position that his conduct was unlawful in the situation he confronted." Cowan

ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 764-65 (2d Cir. 2003).

Qualified immunity is an affirmative defense as to which the defendant

bears the burden of proof. Outlaw, 884 F.3d at 367. □

2. Application

Here, the constitutional rights in question were well established: the "use

of force is contrary to the Fourth Amendment if it is excessive under objective standards

The Second Circuit has observed that there is a “doctrinal tension" in applying qualified -

immunity to excessive force claims, as the underlying standard -- objective reasonableness -- is

the same for both inquiries. See Finnegan v. Fountain, 915 F.2d 817, 824 n.11 (2d Cir. 1990); see

also O'Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003) ("In Fourth Amendment

unreasonable force cases, unlike in other cases, the qualified immunity inquiry is the same as

the inquiry made on the merits." (quoting Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994))). A

fair argument can be made that I should not even reach the question of qualified immunity, on

the theory that the qualified immunity defense is precluded by the jury's finding of excessive

force. In Stephenson, the Second Circuit noted that the Supreme Court had "clarified" in Saucier

that "claims that an officer made a reasonable mistake of fact that justified the use of force go to

the question of whether the plaintiff's constitutional rights were violated, not the question of

whether the officer was entitled to qualified immunity." 332 F.3d at 78-79 (citing Saucier, 533

U.S. at 205). Indeed, the Supreme Court observed in Saucier that "[i]f an officer reasonably, but

mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be

justified in using more force than in fact was needed." 533 U.S. at 205. In any event, I reach the

merits of the qualified immunity defense, and, for the reasons set forth below, I reject it.

12 Cowan was an excessive force case where a police officer shot and killed the driver of a

car coming at him. The Second Circuit noted that special interrogatories were advisable in that

case, because "[a]nswers to questions such as whether [the driver] drove her car towards [the

officer], whether [the officer] was in the zone of danger, and if so, whether he safely could have

gotten out of the way," would assist the jury on the excessive force question and the court on

the qualified immunity inquiry. 352 F.3d at 764-65,

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of reasonableness," Stephenson, 332 F.3d at 77 (quoting Saucier, 533 U.S. at 201-02), and

the use of "deadly force is objectively reasonable only if 'the officer has probable cause

to believe that the suspect poses a significant threat of death or serious physical injury

to the officer or others," Cowan, 352 F.3d at 762 (quoting O’Bert, 331 F.3d at 36). The

Supreme Court has instructed that courts are "not to define clearly established law at a

high level of generality,” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v.

al-Kidd, 563 U.S. 731, 742 (2011)), but to focus this inquiry on "the specific context of the

case," id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). In a case

similar to this one, the Second Circuit identified the inquiry as whether an officer's use

of "deadly force in self-defense" was objectively reasonable, which would turn on

whether there was an "immediate threat to the safety of the officer or others." Salim v.

Proulx, 93 F.3d 86, (2d Cir. 1996).

Hence, the question presented was whether it was objectively reasonable

for a police officer in Connolly's position to believe that Collado posed an immediate

and significant threat of death or serious injury to him or others, such as to justify the

use of deadly force in self-defense. This question was put to the jury, as the jury was

instructed as follows:

To determine whether defendant used excessive force, you

must determine whether defendant's use of force against Mr.

Collado was reasonable, that is, whether a reasonable officer

would have employed the same degree of force in

addressing the situation, taking into account the totality of

the circumstances known to the officer on the scene at the

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time. The use of deadly force is unreasonable unless the

officer reasonably believes that the individual in question

poses an immediate and significant threat of death or serious

physical injury to the officer or others.

(Second Trial Tr. at 421-22). Moreover, the jury was provided with instructions on the

factors relevant to its determination of the reasonableness of the use of deadly force,

including "the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether [the suspect] is actively

resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386,

396 (1989).

The jury was instructed:

In making this determination, you may consider such

factors as the severity of the situation; whether Mr. Collado posed

an immediate and significant threat to the safety of defendant or

others; whether Mr. Collado was using force, and if so, the degree

of that force; and whether the defendant had nonlethal options

reasonably available to him.

On the other hand, an officer faced with an imminent

threat of death or serious injury has no duty to attempt to use

nonlethal force or to retreat, for he need only act within that range

of conduct identified as reasonable. If you find that the amount of

force used was greater than a reasonable officer would have

employed, plaintiff will have established the claim of loss of a

federal right.

You must judge defendant's actions from the perspective

of the reasonable police officer in light of the facts and

circumstances confronting him on the scene when force was

employed, not based on the 20/20 vision of hindsight. Keep in

mind also that police officers must often make split-second

decisions in tense and uncertain situations. The reasonableness

inquiry is an objective one; that is, you must decide whether

18...

The jury answered the question by finding that Connolly used excessive

force. Inherent in its verdict are the further findings that (1) a reasonable officer in the

circumstances would not have employed deadly force in self-defense, and (2) a

reasonable police officer would not have believed Collado posed an immediate and

significant threat of death or serious physical injury to the officer or others. In addition,

the entire thrust of Connolly's argument at trial was that he was being choked by

Collado to the point where he was in fear of his life; the jury squarely rejected that

contention, finding explicitly, in its answers to the special interrogatories, that (3)

Collado did not choke Connolly, and (4) Batista did not punch or push Connolly after

Collado intervened, and finding implicitly that (5) Connolly was not in fear of his life.

And the jury further found, at least implicitly, that (6) Connolly shot Collado without

giving any warning. See Stephenson, 332 F.3d at 81 (noting that whether police officer

"gave warnings" was relevant to resolution of qualified immunity defense); see also

Hemphill v. Schott, 141 F.3d 412, 417 (2d Cir. 1998) ("potentially deadly force may only be

used [by police officers in preventing evasion of arrest] 'if necessary to prevent escape,

and if, where feasible, some warning has been given").

defendant's use of force against Mr. Collado was objectively

reasonable, without regard to defendant's subjective intent or

motivation.

(Second Trial Tr. at 422-23).

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These findings were supported by the evidence -- the testimony of the

eyewitnesses, the videos of the scene, and the medical evidence. To the extent Connolly

testified to the contrary, the jury simply did not believe him. Rather, the jury found that

Connolly shot and killed, without reasonable justification, someone who was trying to

intervene to break up a fight. In these circumstances, and in light of the jury's findings,

Connolly is not protected by qualified immunity."

B. Damages

1. Pain and Suffering

Connolly does not contest the jury's damages award of $300,000 for

Collado's pain and suffering. Def. Mem. at 30. In light of the evidence that Collado was

conscious for 50 minutes, "moaning" and "screaming in pain" as he lay on the sidewalk

and in the ambulance, (Second Trial Tr. at 57; PX 14), and given the extent and

seriousness of his injuries, I agree that the jury's award of $300,000 for Collado's

conscious pain and suffering is reasonable.

4 Connolly relies heavily on Salim v. Proulx. (Def. Mem. at 21-22). The reliance is

understandable, as there the Second Circuit held that a police officer was entitled to qualified

immunity as a matter of law when he shot and killed a suspect as others were seeking to

intervene in the arrest. Id. at 91-92. But, Salim is distinguishable. There, on "plaintiff's version"

of the facts, the officer "was being pummelled by more than five people." Id. at 91. The officer

shot the suspect "in the midst of a struggle when the possibility that [the suspect] might gain

control of the officer's weapon was imminent." Id. at 91-92. Indeed, the officer shot the suspect

“instinctively’ in reaction to seeing [the suspect's] hand on the barrel of his gun while the two

were locked ina struggle." Id. at 91. In light of the jury's findings, no such facts existed here.

The jury found that Connolly was not being choked and rejected his assertion that he was in

fear for his life. (See Second Trial Tr. at 451; Doc. No. 140)

Z. Loss of Enjoyment of Life

Connolly argues that the jury's award of $2.5 million for Collado's loss of

enjoyment of life must be set aside because such damages -- sometimes referred to as

"hedonic damages"! -- are not recoverable in a § 1983 case. Connolly notes that loss of

life damages are not permitted under the New York survival and wrongful death

statutes, and that no Supreme Court or Second Circuit decision has allowed sucha

remedy in a § 1983 case. (Def. Mem. at 30 (citing N.Y. Est. Powers & Trusts Law §§ 5-

4.3, 11-3.3)).%

ie "Hedonic damages value 'the loss of the enjoyment of life as affected by physical pain

and suffering, physical disability, impairment and inconvenience affecting an individual's

normal pursuits and pleasures of life." Crawford v. Franklin Credit Mgmt. Corp., No. 08-CV-6293

(KMW), 2015 WL 13703301, at *8 (S.D.N.Y. Jan. 22, 2015) (citation omitted); see generally Victor E.

Schwartz & Cary Silverman, Hedonic Damages: The Rapidly Bubbling Cauldron, 69 Brook. L. Rev.

1037, 1041-42 (2004).

Section 5-4.3 provides:

The damages awarded to the plaintiff may be such sum as the

[factfinder] . .. deems to be fair and just compensation for the

pecuniary injuries resulting from the decedent's death to the

persons for whose benefit the action is brought. In every such

action, in addition to any other lawful element of recoverable

damages, the reasonable expenses of medical aid, nursing and

attention incident to the injury causing death and the reasonable

funeral expenses of the decedent paid by the distributes . . . shall

also be proper elements of damage.

N.Y. Est. Powers & Trusts Law § 5-4.3(a).

Section 11-3.3 provides:

Where an injury causes the death of a person the damages

recoverable for such injury are limited to those accruing before

-

This issue arose at the first trial, as Connolly objected to the claim as a

matter of law. (First Trial Tr. at 194-95, 394-95, 591). In the end, I decided that the issue

would be put to the jury, and then, if the jury were to rule in Mrs. Collado's favor and

award loss-of-life damages, we would consider the question further in post-trial

motions. (Id. at 394, 591).

The claim presents two issues: (1) whether loss-of-life damages are

recoverable in a § 1983 action as a matter of law, and, (2) if so, the amount of damages

to be awarded for Collado's loss of his life. (Id. at 591).

a. Recoverability

Thold that damages for the loss of enjoyment of life are recoverable in a

§ 1983 action.

While it is true that the Supreme Court and the Second Circuit have not

squarely addressed the issue, the weight of authority supports the conclusion that loss-

of-life damages are recoverable in a § 1983 case even when state law does not allow

them.

death and shall not include damages for or by reason of death,

except that the reasonable funeral expenses of the decedent, paid

by the estate or for the payment of which the estate is responsible,

shall be recoverable in such action. The damages recovered

become part of the estate of the deceased.

N.Y. Est. Powers & Trusts Law § 11-3.3(a).

1G.

First, the Second Circuit's ruling in an analogous case strongly supports

the conclusion that loss-of-life damages are recoverable in a § 1983 action. In McFadden

v. Sanchez, where New York City police officers shot and killed a suspect as they were

attempting to arrest him, the court held that even though punitive damages were not

available under the New York survival statute, they were recoverable by the decedent's

estate under § 1983. 710 F.2d 907, 910-11 (2d Cir. 1983) (citing N.Y. Est. Power & Trusts

Law § 11-3.2 (McKinney 1967) (repealed 1982)). The court concluded that "limitations in

a state survival statute have no application to a section 1983 suit brought to redress a

denial of rights that caused the decedent's death." Id. at 911. The court considered 42

U.S.C. § 1988, which provides that when federal law does not offer "suitable remedies,"

“courts shall apply 'the common law, as modified and changed by the constitution and

statutes of the State wherein the court’ sits unless such state law is ‘inconsistent’ with

federal law." Id. at 910 (quoting § 1988). The court held:

To whatever extent section 1988 makes state law applicable

to section 1983 actions, it does not require deference to a

survival statute that would bar or limit the remedies

available under section 1983 for unconstitutional conduct

that cause death. State law that would preclude a claim for

punitive damages in a case like the present one is manifestly

"inconsistent" with federal law within the meaning of section

1988.

Id. at 911. While McFadden involved the recoverability of punitive damages in a § 1983

death case, the court's reasoning applies with equal force here.

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Second, other courts have explicitly held that loss-of-life damages are

recoverable by a decedent's estate where the unconstitutional conduct of government

officials resulted in death. In Bass ex rel. Lewis v. Wallenstein, a prisoner died while in

custody and his estate sued certain prison officials for damages alleging violations of

his Eighth Amendment right to be free from cruel and unusual punishment and his

Fourteenth Amendment right not to be deprived of life without due process of law. The

jury found liability and awarded damages of $250,000 to the estate for the injuries

suffered by the prisoner -- specifically his "pain and death." 769 F.2d 1173, 1176, 1187

(7th Cir. 1985). Under the Illinois survival statute, the prisoner's estate could recover for

his "conscious pain and suffering," but not for his "loss of life," as Illinois law

"effectively call[ed] for abatement of [the prisoner's] constitutional claim that

defendants deprived him of his fourteenth amendment right to life." Id. at 1189. The

court confirmed its precedent that "where the constitutional deprivation sought to be

remedied has caused death, state law that precludes recovery on behalf of the victim's

estate for the loss of life is inconsistent with the deterrent policy of section 1983." Id. at

1190 (internal quotation marks omitted).

Within this District, Judge Marrero has held, in a case similar to the

present one, that the estate of an individual who was subjected to excessive force by

NYPD officers and subsequently died from his injuries could recover loss-of-life

damages. In Banks ex rel. Banks v. Yokemick, 177 F. Supp. 2d 239, 247 (S.D.N.Y. 2001), the

_9o1-

defendants argued that because damages for loss-of-life were not recoverable bya

decedent's estate under New York law, they were not permitted in an action brought

pursuant to § 1983. The court rejected the argument, concluding:

[T]he Court finds that insofar as New York's survivorship of

claims statute would bar recovery of the damages that the

jury awarded for [the decedent's] loss of enjoyment of life,

the state law fails to take into account policies analogous to

the goals expressed in § 1983.

Id. at 252. Lagree with the reasoning of Judge Marrero and the Seventh Circuit.

The goals of § 1983 referred to by Judge Marrero are two-fold:

“compensating victims for suffered wrongs" and "deterring future deprivations of

constitutional rights through compensatory and, where appropriate, punitive

damages." Id. at 251 (citing Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978); Carey v.

Piphus, 435 U.S. 247, 254-57 (1978)). Moreover, as the Tenth Circuit has observed,

"Congress intended significant recompense when a constitutional violation caused the

death of a victim. The general legislative history of the 1871 act makes clear that death

was among the civil rights violations that Congress intended to remedy." Berry v. City

of Muskogee, 900 F.2d 1489, 1501 (10th Cir. 1990). A holding that § 1983 does not allow

The Tenth Circuit identified an additional reason for not incorporating state survival

statutes that limit remedies in death cases: "[I]f we were to define § 1983 remedies in terms of

the state survival action, supplemented by the state wrongful death act, we place into the hands

of the state the decision as to allocation of the recovery in a § 1983 case, and, indeed, whether

there can be any recovery at all.... The laws are not suitable to carry out the full effects

intended for § 1983 cases ending in death of the victim; they are deficient in some respects to

the recovery of loss-of-life damages where the unconstitutional conduct of a

government official results in death would be inconsistent with the goals of the statute.

Accordingly, I hold that Mrs. Collado may recover loss-of-life damages on

behalf of her husband.

b. Amount

In his post-trial briefing, while Connolly attacks the recoverability of the

loss-of-life damages as a legal matter, he does not separately challenge the amount of

the jury's award for Collado's loss of life: $2.5 million. In any event, I conclude that the

jury's award is reasonable.

Of course, it is difficult if not impossible to put a monetary value on the

loss of a life or the loss of enjoyment of life. See, e.g., Smith v. Ingersoll-Rand Co., 214 F.3d

1235, 1244-46 (10th Cir. 2000) (affirming district court's decision to allow expert to

testify as to "the meaning of hedonic damages" but not to "quantify hedonic damages’).

The jury here was instructed in this respect as follows:

Plaintiff may also recover damages, on behalf of Mr.

Collado, in such sum as you find will fairly and justly

compensate him for his loss of enjoyment of the life he

would have lived. These damages are independent of, and

may be in addition to, whatever damages may exist to

compensate for the pain and suffering Mr. Collado

experienced before he died.

punish the offenses. Application of state law, at least in some instances, will be inconsistent

with the predominance of the federal interest." 900 F.2d at 1506.

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Of course, it is difficult to put a value on the life of a human

being. You are to determine, as best you can, in light of all

the circumstances and the evidence presented, the value of

Mr. Collado's life had he lived.

(Second Trial Tr. at 425).

_ "[A] jury's award [may be set aside] only if it is so high as to shock the

judicial conscience and constitute a denial of justice." Restivo v. Hessemann, 846 F.3d 547,

587 (2d Cir. 2017) (citing Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 671 (2d Cir.

2012)). While the record contains little if any evidence of the monetary value of

Collado's life, the sum of $2.5 million for the loss of life of a 43-year-old man is in my

view "realistic and reasonable," see Renaldi v. New York, New Haven & Hartford R.R. Co.,

230 F.2d 841, 845 (2d Cir. 1956) (arguing that life expectancy estimates “are not inflexible

rules which the jury must follow, but are guides to assist them in awarding realistic and

reasonable damages"), and does not shock my judicial conscience. As Mrs. Collado

points out in her brief (Pl. Mem. at 30 n.14), the wrongful conviction cases provide a

useful benchmark, see, e.g., Restivo, 846 F.3d at 588 (affirming award of $18 million for 18

years of incarceration); Newton v. City of New York, 171 F. Supp. 3d 156, 177 (S.D.N.Y.

2016) (approving remittitur totaling approximately $1 million per year for unjustified

incarceration). The jury's award of $2.5 million for loss-of-life damages will stand.

2. Pecuniary Losses for Family Members

The jury awarded compensatory damages of $1.5 million for monetary

losses sustained by his family: Mrs. Collado and Collado's six children. Connolly

4 -

argues that this award must be set aside because it is impermissibly speculative; he

contends that Mrs. Collado "presented absolutely no evidence with respect to monetary

losses incurred by several of [the] six children." (Def. Mem. at 34). While I agree that

Mrs. Collado presented no evidence with respect to several of the children and little

evidence of the monetary value of Collado's "services,"'® the award of $1.5 million is

reasonable even if we consider the pecuniary damages only to Mrs. Collado and the

four younger children, who ranged in age from two to fifteen years old when their

father was killed.

Courts recognize that pecuniary damages resulting from death usually

lack direct evidence. LaMarca v. United States, 31 F. Supp. 2d 110, 130 (E.D.N.Y. 1998).

Calculation of pecuniary losses is therefore left to the jury, which considers factors

including "age, character, earning capacity, health, intelligence, and life expectancy of

the decedent, as well as the degree of dependency of the distributees upon the decedent

and the probable benefits they would have received but for the untimely death.” McKee

Mrs. Collado did present evidence of the support Collado provided to her and his

family. She testified: "John was a provider. He was a special man who took care of everything

and anything. He was on top of everything. If he had to do anything around the house, he

would. If he had to cook, he would cook. If he had to do... the wash, he did.... He would

do everything, or we would do it together, but he would take part in everything that had to be

done at home." (Second Trial Tr. at 124-25). She also testified that "[h]e was the best father. He

did everything for my son. He took him to school. He fed him. He bought him everything he

needed. They were together all the time. As far as I see it, he was his first teacher, because he

was able to teach him everything he could during those three years." (Id. at 126). Amy Collado,

one of Collado's daughters, also testified that Collado "was a great father to me, to my siblings,

to my entire life. As long as I can remember he was always an amazing dad. He provided

everything for me. He motivated me to do the best that I can do in life and school. He was my

superhero." (Id. at 289).

« D5

v. Colt Elecs. Co., 849 F.2d 46, 52 (2d Cir. 1988) (citations omitted). Moreover, courts

have held that testimony from the surviving spouse constitutes sufficient evidence to

prove pecuniary damages. Ramirez v. Chip Masters, Inc., 11-CV-5772.(WFK) (MDG),

2014 WL 1248043, at *11 (E.D.N.Y. Mar. 25, 2014) (finding such testimony "establishe[d]

that the decedent played a role in providing the child with care, love and guidance").

New York law provides recovery in wrongful death actions for financial

benefits as well as "for the loss of the nurture, care and guidance decedents would

provide their children had death not intervened.” Shu-Tao Lin v. McDonnell Douglas

Corp., 742 F.2d 45, 52 (2d Cir. 1984) (citing Zaninovich v. American Airlines, Inc., 26 A.D.2d

155, 161 (1st Dep't 1996)). The amount awarded must equal the pecuniary value of the

nurture, care, and guidance taken from the children. McKee, 849 F.2d at 50. In

determining compensation, courts have considered the "loss of valuable services in the

nature of instruction, training and guidance." Red Star Towing & Transp. Co. v. The

"Ming Giant,” 552 F. Supp. 367, 377 (S.D.N.Y. 1982); see also Barrett v. United States, 660 F.

Supp. 1291, 1321-22 (S.D.N.Y. 1987) (emphasizing the importance of the child's

education as a significant source of guidance). The court also considers the age and

number of decedent's children in determining the appropriate amount of damages. See,

e.g., Ramirez, 11-CV-5772 (WFK) (MDG), 2014 WL 1248043, at *11 (awarding $1,000,000

in damages for loss of parental care and guidance of seven-month-old); Carlson v. Porter,

53 A.D.3d 1129, 1134 (4th Dep't 2008) (concluding that an award of $250,000 per child,

<265

all three of whom were under 10 years old, for past loss of parental guidance and

$750,000 per child for future loss of parental guidance would be reasonable

compensation); Snuszki v. Wright, 34 A.D.3d 1235, 1235-36 (4th Dep't 2006) (affirming

$1,000,000 for loss of parental guidance of two children).

Here, both Mrs. Collado and Collado's daughter Amy testified as to the

impact of the loss of their husband and father, respectively, on their lives as well as on

the lives of the younger children. The jury's award of $1.5 million is reasonable and will

stand.

3. Fasarai and Burial Expenses

The jury awarded Mrs. Collado $25,000 for Collado's funeral and burial

expenses. She concedes that this award should be reduced to $11,991.95, the total of the

funeral and burial bills that were received into evidence. (PI. Mem. at 21 n.11; PX 27:

Second Trial Tr. at 27). Connolly's motion is granted to this extent.

4, Punitive Damages

The jury awarded punitive damages of $10 million. This award is

vacated, for I do not believe that punitive damages are warranted in the circumstances

presented here.

There is no clear, objective standard that exists to justify the award of one

amount, as opposed to another, to punish a tortfeasor for misconduct. Payne v. Jones,

711 F.3d 85, 93 (2d Cir. 2013). "A jury may ‘assess punitive damages in an action under

37

§ 1983 when the defendant's conduct is shown to be motivated by evil motive or intent,

or when it invokes reckless or callous indifference to the federally protected rights of

others." DiSorbo v. Hoy, 343 F.3d 172, 186 (2d Cir. 2003) (quoting Smith v. Wade, 461 U.S.

30, 56 (1983)); accord McFadden, 710 F.2d at 913 ("[P]unitive damages are available under

section 1983 to advance the statute's purpose of securing the protection of constitutional

rights. An award of punitive damages punishes a defendant who has acted

intentionally or recklessly to deny a plaintiff his protected rights.").

Even construing the evidence in the light most favorable to Mrs. Collado, I

do not believe, nor could a reasonable jury find, that Connolly acted with evil motive or

intent or with reckless or callous indifference to Collado's federally protected rights.

After struggling with a drug dealer to exhaustion, to a point where apparently he was

"begging, ‘Please, please, please"" (Second Trial Tr. at 101), Connolly suddenly found

himself confronted by not just one but two individuals, both of whom were

substantially bigger than him and both of whom were using force on him. Moreover,

instead of pulling off Batista -- who was on top -- Collado started pulling Connolly,

including, according to one witness, by the neck. (Id. at 331). Without knowing

Collado's intentions, Connolly thus found himself in what objectively was a perilous

situation.

Mrs. Collado's counsel told the jury in summation, referring to Connolly,

that "we're not saying that he's a bad man, that he's an evil man, that he's this despicable

_92_

person. That's not what we're saying. He panicked." (Id. at 392). That may indeed be

what happened. But while panicking may be a basis for the finding of excessive force, it

is not a basis for the imposition of punitive damages. The jury's award of punitive

damages is hereby vacated.

Motion for New Trial

Connolly also moves for a new trial pursuant to Rule 59 of the Federal

Rules of Civil Procedure. The motion is denied.

A court may grant a motion for a new trial "for any reason for which a

new trial has heretofore been granted in an action at law in federal court, including if

the verdict is against the weight of the evidence." Raedle, 670 F.3d at 417 (quoting Fed.

R. Civ. P. 59(a)(1)(A)). "[A] decision is against the weight of the evidence ... if and only

if the verdict is [1] seriously erroneous or [2] a miscarriage of justice." Farrior 0.

Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002). The Second Circuit has

instructed that "jury verdicts should be disturbed with great infrequency." ING Glob. v.

United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 99 (2d Cir. 2014). While trial judges

do have the ability to weigh credibility on a Rule 59 motion, they must do so "with

caution and great restraint, as a judge should rarely disturb a jury's evaluation of a

witness's credibility and may not freely substitute his or her assessment of the

credibility of witnesses for that of the jury simply because the judge disagrees with the

jury." Raedle, 670 F.3d at 418 (internal quotation marks and citations omitted).

=99..

This was an exceedingly close case. The first trial ended in a mistrial, as

the jury was unable to reach a unanimous verdict, and I may very well disagree with

the second jury's assessment of the credibility of at least some of the witnesses. But

"when, as here, a verdict is predicated almost entirely on the jury's assessments of

credibility, such a verdict generally should not be disturbed except in an egregious

case." ING Glob., 757 F.3d at 99. This was not an egregious case, except with respect to

the $10 million award of punitive damages, which I have now set aside. The jury did

not accept Connolly's testimony that he was being choked to the point where he was in

fear of losing his life; this was purely a credibility determination, one that I decline to

second-guess.

The motion for a new trial is denied.

CONCLUSION

For the reasons set forth above, Connolly's motion for judgment as a

matter of law is GRANTED in part and DENIED in part. The award of $25,000 for

funeral and burial expenses is reduced to $11,991.95 and the award of $10 million in

punitive damages is vacated. Connolly's motions for a new trial and remittitur are

DENIED. Judgment will be entered in favor of Mrs. Collado against Connolly and the

City in the amount of $4,311,991.95. Counsel for Mrs. Collado shall submit a proposed

judgment on notice within ten days hereof.

« 30%

The parties shall discuss the issue of attorneys’ fees and costs. If they are

unable to agree on an appropriate award of attorneys' fees and costs, Mrs. Collado shall

move for attorneys' fees and costs within thirty days hereof; Connolly and the City shall

oppose the motion within fourteen days thereafter; and Mrs. Collado shall submit reply

papers within seven days thereafter.

SO ORDERED.

Dated: New York, New York .

August 23, 2019

DENNY CHI

United States Circuit Judge

_ Sitting by Designation

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