Shirley P. Langevine v. District of Columbia

KAREN LeCRAFT HENDERSON, Circuit Judge,

concurring in part and

dissenting in part:

While I concur in the court’s resolution of whether the weight of the evidence mandated a new trial, I cannot join in the conclusion that the district court properly denied a new trial on damages.

Under the law of the ease doctrine, “the same issue presented a second time in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (en banc) (footnote omitted). Of course, “[although courts are often eager to avoid reconsideration of questions once decided in the same proceeding, it is clear that all federal courts retain power to reconsider if they wish.” 18 Chaeles AlaN Wright, Arthur R. Miller & Edward H. Cooper, Federal Practioe & Procedure § 4478, at 789 (1981). Indeed, “every order short of a final decree is subject to reopening at the discretion of the district judge.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 , 103 S.Ct. 927, 935 , 74 L.Ed.2d 765 (1983) (footnote omitted); see also Arizona v. California, 460 U.S. 605, 618 , 103 S.Ct. 1382, 1391 , 75 L.Ed.2d 318 (1983); United States v. Singleton, 759 F.2d 176 , 183 n. 2 (D.C.Cir.1985). The court thus is largely correct about the inapplicability of law of the case to interlocutory orders. Majority Opinion (Maj.Op.) 1022-23. It fails, however, to address an important caveat to that principle. When two trial judges reach opposite conclusions on a purely discretionary matter (including an interlocutory matter), consistency and fairness require giving effect to the first judge’s decision. See Williams v. Commissioner, 1 F.3d 502, 503-04 (7th Cir.1993). Assessing the excessiveness of the damages verdict is a discretionary matter and the original judge’s decision that it was excessive should ordinarily control.

Even if we ignore that decision and review the second district judge’s order under an abuse of discretion standard, as we would had there been only one ruling on the new trial motion, the portion of the order regarding the excessiveness of the damages must nonetheless fall. Whether to grant a new trial generally rests within the district court’s discretion. Hutchinson v. Stuckey, 952 F.2d 1418, 1420 (D.C.Cir.1992); McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 646 (D.C.Cir.1988). Nevertheless, if the verdict lacks a foundation not only in the facts of the case but also in the jury’s findings of liability, it must be rejected. The jury awarded Lan-gevine $200,000 for minimal, if any, physical injuries and a brief period of emotional trauma. JA 43. Lesser verdicts repeatedly have been deemed excessive for greater injuries. See, e.g., Hutchinson, 952 F.2d at 1422 (affirming district court’s determination that $50,000 was excessive for permanent “significant injury” to finger); Johnson v. Parrish, 827 F.2d 988, 991 (4th Cir.1987) (affirming district court’s determination that $150,000 was excessive for partially disabling neck and arm injury). It is neither necessary nor appropriate, however, to question the trial judge’s assessment of the verdict in the abstract in order to conclude that a new trial is required with respect to damages. The jury’s liability verdict itself reveals the district court’s legal error in denying a new trial on damages.

The plaintiffs claims included two counts of assault and battery. App. 34. The district judge who instructed the jury charged that “assault is an intentional and unlawful threat or attempt either by words or by acts to physically harm the victim” and that “battery is an intentional and unlawful harmful or offensive touching or use of force upon the physical person of another.” Trial Tr. at 573, Langevine v. District of Columbia (D.D.C.1993) (No. CA 91-1026). The jury found that officers Kelsey and Johnson did not commit *1026 assault and battery. App. 43. With that finding, the jury necessarily determined that Kelsey and Johnson did not touch or threaten Langevine intentionally and unlawfully. Because there is no doubt but that Kelsey and Johnson touched Langevine intentionally, the jury’s finding can only mean that they did not touch her unlawfully. Having determined that Kelsey and Johnson touched Lan-gevine lawfully, the jury nevertheless awarded Langevine $200,000 for “[bjodily injury, physical pain and suffering, [and] mental anguish.” Id. In view of its defense verdict on assault and battery, however, the jury had to have rejected her claims that “officers slammed her forehead down on the hood of the police car, smashing her glasses onto the bridge of her nose, and pulled her arm back while [they] applied handcuffs to her arms.” Id. at 24. Either that or the jury believed that those alleged actions did not constitute an unlawful touching, a frankly preposterous alternative. Langevine’s damages, then, consisted of temporary wrist pain from having been handcuffed “for at least one-half hour,” id. at 25, a four-hour detention at the police station, id. at 27, and mental anguish. Her mental anguish included humiliation, primarily resulting from telling her fellow church members of her arrest. 1 Of more significance, the district court, in its recitation of evidence supporting the denial of a new trial on damages, was wrong as a matter of law to include physical pain resulting from “having her head pushed against the hood of a police car and her arms yanked and twisted behind her back so severely that it felt as if one of her shoulders was being dislocated.” Id. at 84. The liability verdict and the damages verdict 2 are so patently inconsistent that the district court’s failure to grant a new trial on damages constitutes, in my view, a serious abuse of discretion. 3

. The record reflects that as to this item, Langev-ine is the author of her own misfortune. Langev-ine did not go to church the evening of her arrest, Trial Tr. 18, and, according to her counsel at oral argument, told those friends who inquired at church services one week later why she was absent the Sunday before. Humiliation suffered as the result of voluntarily disclosing the humiliating episode—keeping in mind that confession is good for the soul—should, at a minimum, mitigate any resulting mental anguish.

. I note also that the complaint includes, unlike the ordinary prayer for relief, a specific request for $50,000 in compensatory damages. App. 35. An award over four times greater than the amount requested strikes me as excessive on its face. See McDermott v. Severe, 202 U.S. 600, 612 , 26 S.Ct. 709, 713 , 50 L.Ed. 1162 (1906) (approving jury instruction that damages verdict should not exceed specific amount claimed); see also Chesapeake & Ohio Ry. Co. v. Carnahan, 241 U.S. 241, 244-45 , 36 S.Ct. 594, 595 , 60 L.Ed. 979 (1916) (same); cf. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 22 , 111 S.Ct. 1032, 1045-46 , 113 L.Ed.2d 1 (1991) (holding due process requires, inter alia, that punitive damages "have some understandable relationship to compensatory damages").

.In order to avoid further burdening the judiciary with this already superannuated case, the district court should instead order a new trial nisi remittitur. See, e.g., Hutchinson, 952 F.2d at 1423 n. 5.