Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Welbig v. Hansen

United States District Court, D. South Dakota, Southern Division

February 14, 2017

TAMRA WELBIG, Plaintiff,
v.
JORDAN HANSEN; JORDAN McCASKILL; and JUSTINA HILMOE, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL AND MOTION FOR EVIDENTIARY HEARING

          Lawrence L. Piersol, District Court Judge

         The 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.

         BACKGROUND

         On June 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.

         Welbig 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 during deliberations.

         DISCUSSION

         Federal 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 follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.

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).

         A. New Trial Based on Sufficiency of the Evidence

         "When 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 quotations omitted).

         On this 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 her.
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?
A. Yes.
Q. So you've been around people who are losing consciousness, who have substance problems, and that sort of thing?
A. Yes.
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?
A. No.
Q. And when you say responding, were you asking her questions?
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?
A. Yes.
Q. What did you do?
A. Well, in the hallway I had called 911, and I do not remember ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.