United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION FOR NEW TRIAL AND MOTION FOR EVIDENTIARY
Lawrence L. Piersol, District Court Judge
Plaintiff, Tamra Welbig, has filed a Motion for New Trial
pursuant to Federal Rule ot Civil Procedure 59 (doc. 65), and
a Motion for Evidentiary Hearing Regarding Potential Juror
Misconduct (doc. 82). Defendants Jordan Hansen, Jordan
McCaskill and Justine Hilmoe oppose both motions. For the
reasons stated below, the motions will be denied.
5, 2012, Welbig was arrested by Defendant police officers. In
the course of the arrest, Welbig suffered injuries to her
face and toe. Welbig alleges that Defendants violated 42
U.S.C. § 1983 by 1) conspiring to deprive her of her
Fourth Amendment right to be free from unlawful arrest, 2)
unlawfully arresting her in retaliation for exercising her
First Amendment right to freedom of speech, 3) depriving her
of her Fourth Amendment right to be free from the use of
excessive force, and 4) using excessive force in retaliation
for exercising her First Amendment right to freedom of
speech. A jury trial was held from June 29, 2016 to July 1,
2016. The jury returned a verdict in favor of Defendants on
all of Welbig's claims.
has now filed a Motion for New Trial. In support of her
request for a new trial, Welbig argues that 1) the verdict
was against the clear weight of the evidence, and 2) improper
character evidence was admitted into evidence and referenced
by defense counsel in closing argument. In addition to her
motion for new trial, Welbig has moved for an evidentiary
hearing regarding potential juror misconduct, asserting that
a juror may have presented extraneous information to the jury
Rule of Civil Procedure 59 states in relevant part:
(1) Grounds for New Trial. The court may, on motion, grant a
new trial on all or some of the issues-and to any party-as
(A) after a jury trial, for any reason for which a new trial
has heretofore been granted in an action at law in federal
Fed.R.Civ.P. 59(a)(1)(A). Pursuant to Rule 59, the Court may
grant a new trial when the first trial resulted in a
miscarriage of justice, through a verdict against the weight
of the evidence, an excessive damage award, or legal errors
at trial. Trickey v. Kaman Indus. Technologies
Corp., 705 F.3d 788, 807 (8th Cir. 2013).
'"With respect to legal errors, a 'miscarriage
of justice' does not result whenever there are
inaccuracies or errors at trial; instead, the party seeking a
new trial must demonstrate that there was prejudicial
error." Id. Whether or not to grant a new trial
is almost entirely at the discretion of the trial court.
Allied Chem. Corp. v. Daijlon, Inc., 449 U.S. 33, 36
(1980); Tedder v. Am. Railcar Indus., Inc., 739 F.3d
1104, 1110 (8th Cir. 2014). The question is not whether the
Court would have reached the same verdict on this evidence.
"The key question is whether a new trial should have
been granted to avoid a miscarriage of justice."
Michigan Millers Mut. Ins. Co. v. Asoyia, Inc., 793
F.3d 872, 878 (8th Cir. 2015) (citation omitted).
New Trial Based on Sufficiency of the Evidence
reviewing a jury verdict to decide whether it is against the
weight of the evidence, the district court conducts its own
review of the evidence to determine whether a miscarriage of
justice has occurred. However, the trial judge may not usurp
the functions of the jury, which weighs the evidence and
credibility of witnesses." Boesing v. Spiess,
540 F.3d 886, 890 (8th Cir. 2008) (internal citations and
issue, Welbig focuses on her excessive force claim, which is
against defendants Hansen and McCaskill only. According to
her testimony, on the night of June 4, 2012, Welbig took a
mixture of medications that had the effect of making her
unable to function when she woke up on the morning of June 5,
2012. She asked her 13-year-old daughter, C.W., to find a
neighbor in the apartment building where they lived who could
drive her to the doctor. C.W.'s testimony supports
Welbig's account that she had taken a mix of medications
and could not dress herself or walk on her own. C. W. called
Arlene Mathiesen, who tried to help Welbig out to the car.
Mathiesen said that she and C.W. had to almost carry Welbig
to Mathiesen's car and place her on the passenger side
front seat. (Video Dep. 11:7-16.) Mathiesen, who had training
and experience as a nurse, decided to call an ambulance for
Welbig. She described Welbig's condition as they were
waiting for the ambulance to arrive:
A. I by that time Tamra was unresponsive. I couldn't get
her to talk to me. In fact, she was turning almost ashen, and
I was scared. I was afraid I was losing her, and I slapped
Q. All right. Let me ask you a little bit about that. Arlene,
do you have any medical training in your background?
A. Yes, I do.
Q. What kind of training have you had? A I'm a retired
LPN and- Q. That's a licensed practical nurse, correct?
A. Yes. And ages ago I drove ambulance at Lake Norden.
Q. Were you trained as an EMT in those days?
Q. So you've been around people who are losing
consciousness, who have substance problems, and that sort of
Q. And when you say you thought you were losing her,
regarding Tamra, what do you mean?
A. I thought - actually, I thought she was going to die just
because the pulse was so slow and the way she was turning
ashen and she wasn't responding at all.
Q. Were her eyes open?
Q. And when you say responding, were you asking her
A. I was asking her questions. I was trying to get her to
talk to me.
Q. Did she verbalize anything at all?
A. No. Nothing.
Q. And then you slapped her?
A. Yes, I did.
Q. And with an open hand?
A. I believe so, yes.
Q. And your purpose in doing that was just to revive her or
A. Yeah, to wake her up, to see if she was still with me.
Q. Did you have your cell phone with you then?
Q. What did you do?
A. Well, in the hallway I had called 911, and I do not