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Fletcher v. Tomlinson

United States Court of Appeals, Eighth Circuit

July 13, 2018

Calvin Fletcher, Sr. Plaintiff - Appellee
v.
Joseph Tomlinson Defendant Nicholas Martorano; John Moton Defendants - Appellants Jonathan Carroll; City of St. Louis; St. Louis City Metropolitan Police Department; Board of Police Commissioners; Corizon, Inc.; Dr. Jane Doe; Jane Doe, 1; Jane Doe, 2; Richard Gray, in his capacity as police commissioner; Thomas Irwin, in his capacity as police commissioner; Erwin Switzer, in his capacity as police commissioner; Bettye Battle-Turner, in her capacity as police commissioner; Francis G. Slay, in his capacity as police commissioner; Paul Geiger; April Scott; Rhalashondra Straughter; Joyce Sanchez; Blake Leadbetter; Jane Doe, 3; Jane Doe, 4; John Doe, 1; John Doe, 2 Defendants

          Submitted: December 12, 2017

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.

          SMITH, Chief Judge.

         St. Louis Police Department (SLPD) Officers Nicholas Martorano and John Moton appeal from the district court's[1] judgment, entered upon a jury verdict, finding that they used excessive force in their apprehension and arrest of Calvin Fletcher and awarding damages to Fletcher totaling $600, 000. They raise three issues on appeal: (1) the district court erred in allowing Fletcher to read deposition testimony of a medical expert who was not subject to cross-examination at trial; (2) the district court erred in allowing the jury to award punitive damages against Officer Moton without evidence that Officer Moton engaged in any excessive force against Fletcher; and (3) the district court erred in failing to deduct from Fletcher's judgment the amounts that he received from his settlements with other defendants. We affirm.

         I. Background

         "We view the facts relevant to the controlling issue of law in the light most favorable to the jury's verdict." Hagen v. Siouxland Obstetrics & Gynecology, PC, 799 F.3d 922, 924 (8th Cir. 2015).

         One evening, Fletcher, a 5'8" African-American male who weighs 155 pounds, was walking to a gas station in St. Louis, Missouri. Fletcher was unarmed and carried no drugs or other contraband. Fletcher saw a marked patrol car leaving the gas station's parking lot. SLPD Officers Joseph Tomlinson, Martorano, and Moton were in the patrol car. Fletcher continued walking. He saw the patrol car stop at a stoplight. Fletcher was standing at the corner of the street where the patrol car stopped.

         Upon seeing Fletcher, the officers radioed at 8:21 p.m. that they were about to perform a "pedestrian check" on Fletcher. According to the officers, they initiated contact with Fletcher based on his behavior in a vacant lot at the corner of the street. Officer Tomlinson claimed that Fletcher "seemed to be adjusting something in his waistband," which is "[g]enerally . . . a sign of someone carrying a weapon or something on them." Jury Trial Proceedings Transcript, Vol. II, at 166-67, Fletcher v. Tomlinson, No. 4:14-cv-00999-RLW (E.D. Mo. Aug. 9, 2016), ECF No. 221. Officer Tomlinson also testified that Fletcher was "visibly startled" by the patrol car. Id. at 167. Fletcher walked quickly away from the police, and Officer Tomlinson testified that Fletcher then discarded some type of package from his pockets. Officer Tomlinson described the package as "a chunk of off-white rock-like substance wrapped in plastic, tied at the end. The plastic was knotted." Id. at 154. Fletcher, however, testified that he was not in a vacant lot that evening and never threw anything out of his pockets after he noticed the patrol car. In any event, the officers stopped their patrol car, and Officer Tomlinson got out to retrieve whatever Fletcher had allegedly discarded.

         Thereafter, the officers sought to detain Fletcher. All the officers left the patrol car and rapidly approached Fletcher. From the patrol car to where Fletcher stood was a few feet. The officers were armed and wearing armored vests. Each was over six feet tall and weighed at least 200 pounds. Startled, Fletcher began backpedaling. He tried to maintain eye contact with the officers, but he glanced back once or twice to see where he was going and to see if something behind him was drawing the officers' attention. Officer Martorano fell as he neared Fletcher, cutting his hand. Officer Moton reached Fletcher first, and Officer Martorano jumped to his feet and ran to Fletcher, too. Fletcher testified that as he was backing up, one of the officers (not Officer Martorano) caught up with him, and Fletcher fell on his bottom. After Fletcher fell, the officer came up behind Fletcher and put his hands behind Fletcher's back.

         While Fletcher sat on the ground, Officer Martorano, appearing angry, rushed toward Fletcher with his hands up and carrying something in his hand. According to Fletcher, Officer Martorano "smacked [Fletcher] across [his] face" with something that "felt like a brick." Id. at 20-21. Fletcher identified "Officers Tomlinson, Martorano[, ] and Moton" as the officers who then "started kicking and punching and hitting [him] all over [his] body" as he sat there. Id. at 21. Fletcher did not resist the officers. According to Fletcher, "it felt like [the officers were hitting him with] something hard, like a pole or something." Id. at 24. He described it as "some kind of rod." Id. He felt this object "[o]n [his] lower back, [his] legs." Id. According to the police report, Officer Moton was the officer who hit Fletcher with a baton. Officers Moton and Martorano then handcuffed Fletcher and placed him in the backseat of the patrol car.

         While in the patrol car, Fletcher saw some bags, a jacket, and a cell phone. He began "screaming and yelling and saying that . . . this stuff is not mine. 'What's going on? What's going on?'" Id. at 25. Fletcher feared that the officers were "trying to set [him] up." Id. at 26. Fletcher yelled but did nothing to damage the patrol car. Fletcher testified that he yelled briefly. Then, the officers got him out of the patrol car, cursed at him, told him to shut up, and started beating him again. To Fletcher, the beating seemed like it lasted a long time. Fletcher remained handcuffed throughout the encounter. He testified he did not fight back in any way. Fletcher believed there were more than three officers involved in the beating because he "saw . . . a lady [who] had her foot on [his] neck." Id. at 27. Toward the end of the beating, Fletcher recalled trying to look back. One of the officers got a jacket and put it over Fletcher's head to block his sight. Then, Fletcher felt an electric shock. Fletcher recalled the officers hitting him while the female's foot was on his neck. Fletcher believed that he probably lost consciousness because he "can't remember a whole lot." Id. at 31.

         Not surprisingly, the officers described events from that evening differently than the way Fletcher described them. Once placed in the patrol car, Fletcher, according to the officers, remained combative, thrashing and kicking in the patrol car. This prompted the officers to request a paddy wagon[2] at 8:26 p.m. Officer Jonathan Carroll arrived driving the paddy wagon at 8:29 p.m.[3] According to the officers, they put Fletcher in the paddy wagon soon after it arrived and his "same combative behavior continued." Jury Trial Proceedings Transcript, Vol. III, at 18. Fletcher categorically denied behaving that way.[4]

         Fletcher does not recall how he got to the paddy wagon. Officer Carroll testified that Fletcher "had to be dragged a little" to the paddy wagon. Jury Trial Proceedings Transcript, Vol. I, at 138. According to Officer Carroll, Fletcher's body was "[p]robably" limp. Id. Officer Carroll confirmed that "the officers laid Mr. Fletcher on his side in the pa[dd]y wagon and just sort of pushed him in [it]." Id. at 139. Fletcher recalled lying in the paddy wagon and hearing someone talking to him; however, Fletcher was unable to open his eyes. Fletcher then felt another electric shock, [5] which woke him up. He looked up and saw a big light in his face. He closed his eyes again but could still hear talking. Fletcher then looked up and saw a light shining in his face again. He then heard an officer say, "Watch your head." Jury Trial Proceedings Transcript, Vol. II, at 34. Then, according to Fletcher, the door was slammed on his head.

         By contrast, the officers reported that as they "were attempting to load [Fletcher] into the back of the [paddy wagon], he became combative once again and kicked [Officer Martorano] in the right knee." Jury Trial Proceedings Transcript, Vol. III, at 15. The officers then "subdued [Fletcher] and loaded [him] into the cruiser." Id.

         Fletcher was in the paddy wagon when EMTs arrived at 8:58 p.m. The EMTs asked Fletcher if he wanted medical treatment, and Fletcher did not respond. Fletcher does not remember any EMTs speaking with him. The EMT who assessed Fletcher testified that "the police signed the refusal [of transport]" to take Fletcher to the hospital. Id. at 83. The EMT identified Officer Tomlinson as "the witness to the refusal." Id. at 85. The EMTs left at 9:12 p.m.

         Officer Carroll then drove Fletcher to the city jail. On arrival, Officer Carroll testified that officers had to hold Fletcher up to enable him to walk inside the jail. According to Officer Carroll, "If they would have let him go, he probably would have just dropped to the ground." Jury Trial Proceedings Transcript, Vol. I, at 140. Fletcher was not under the influence of drugs or alcohol upon his arrival to the jail. Fletcher remained in handcuffs from his initial arrest until they were removed at the jail.

         Due to his injuries, Fletcher was in the jail's infirmary for six days. He had a swollen face, pain, abrasions, and bruising all over his body, including his lower back and head. While at the jail, the only medical test conducted was a chest x-ray. Fletcher was then taken to Perry County, Missouri, on a traffic warrant. Fletcher remained in Perry County jail for about a week. Perry County then transported Fletcher to Perry County Memorial Hospital because his condition worsened. Ultimately, Fletcher was taken to St. Louis University (SLU) Hospital. While there, skull x-rays were taken and his creatine levels were checked. A radiology report revealed he had a broken nose, broken eye socket, other facial fractures, and internal brain bleeding. The creatine levels revealed that Fletcher's kidneys were damaged and that he was nearing renal failure. He stayed in SLU Hospital's I.C.U. for two weeks.

         Fletcher was charged with drug possession, resisting arrest, and assault on an officer. The rock-like substance that Fletcher allegedly discarded was tested and proved not to be drugs. The prosecuting attorney's office dropped all charges against Fletcher.

         Fletcher filed a civil rights action against Officers Carroll, Martorano, Moton, and Tomlinson, the SLPD Board and its members, the City of St. Louis, the contractor operating the jail infirmary ("Corizon"), some of Corizon's employees, the Perry County Sheriff's Department, and the Perry County Memorial Hospital. Fletcher alleged federal and state-law claims of excessive force against each of the four defendant police officers. Fletcher also alleged a claim of conspiracy to violate his Fourth Amendment rights.

         On September 29, 2015, defendant Corizon disclosed pursuant to Federal Rule of Civil Procedure 26(a)(2) its retained medical expert Dr. Arnold Berns. Dr. Berns's cover letter revealed that he is board-certified in medicine and nephrology and is familiar with and experienced in all branches and aspects of clinical nephrology, including acute kidney injury, chronic kidney disease, end-stage renal disease, and dialysis. Dr. Berns resides and practices in Chicago, Illinois. Dr. Berns also included his educational, training, and professional experience. Dr. Berns opined that "[t]he proximate cause of Mr. Fletcher's acute kidney injury with associated metabolic complications was traumatic rhabdomyolysis.[6] The rhabdomyolysis occurred at the time of his arrest on March 6 and was due to direct muscle trauma." Plaintiff's Response to Defendant's Objection to the Admission of Any Testimony from the Deposition of Dr. Arnold Berns at 13, Fletcher v. Tomlinson, No. 4:14-cv-00999-RLW (E.D. Mo. Aug. 7, 2016), ECF No. 179.

         Fletcher's counsel paid for and took the deposition of Dr. Berns on January 13, 2016. Counsel for the officers cross-examined Dr. Berns during that deposition.

         Pursuant to the district court's order, Fletcher served his deposition designations, including the deposition designation for Dr. Berns, on the defendants on July 19, 2016. Twenty days before trial, per the pretrial order, Fletcher filed notice that he "may read the following deposition portions into evidence during his case-in-chief . . . [f]rom the deposition of Dr. Berns." Plaintiff's Designations of Discovery and Depositions at 1, 4, Fletcher v. Tomlinson, No. 4:14-cv-00999-RLW (E.D. Mo. July 19, 2016), ECF No. 165. Fletcher also filed a witness list, stating that he "may call . . . Arnold Berns, M.D." Plaintiff's Witness List at 1, Fletcher v. Tomlinson, No. 4:14-cv-00999-RLW (E.D. Mo. July 19, 2016), ECF No. 164. The district court's case management order required the defendants to make any objections to the deposition designations at least ten days before trial. The defendants filed no objections to designated parts of Dr. Berns's deposition and filed no cross-designation of the deposition parts.

         On August 4, 2016, the defendants learned that Fletcher intended to ask the court for leave to read from the deposition of Dr. Berns, an expert witness previously identified not by Fletcher, but by defendant Corizon, who was no longer a party to the case. On August 5, 2016, the defendants objected to the admission of any out-of-court testimony from Dr. Berns, making six arguments. Defendants argued that (1) Dr. Berns cannot qualify as an expert under the analysis required under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); (2) unless Dr. Berns appears live at trial, the defendants will be deprived of the opportunity to show that Dr. Berns's opinions are inadmissible under Daubert; (3) Fletcher did not identify Dr. Berns as an expert witness in his initial disclosures or in response to the discovery requests that the defendants submitted to Fletcher; (4) the defendants learned four days prior to trial that Fletcher had no intention of calling Dr. Berns to testify live at trial but instead intended to read portions of Dr. Berns's deposition transcript, which is inadmissible hearsay under Federal Rule of Evidence 803; (5) such deposition transcript testimony is not admissible under Federal Rule of Evidence 804 because Dr. Berns meets none of the criteria required to qualify as an "unavailable" witness; and (6) the defendants would be severely prejudiced by admission of the deposition transcript testimony because they have not had a chance to depose Dr. Berns as an expert for Fletcher.

         The morning of trial, defense counsel discussed its objection to the introduction of Dr. Berns's deposition testimony with the court. The court asked whether defense counsel was present during Dr. Berns's deposition and whether counsel had the opportunity to cross-examine Dr. Berns. Defense counsel answered yes. The court stated, "I'm going to allow Defendants to use the depo designations that were made to cross-examin[e] anything that Dr. Berns testifies in this trial." Jury Trial Proceedings Transcript, Vol. I, at 15.

         Fletcher's counsel then clarified that Fletcher would be relying on Dr. Berns's deposition testimony despite listing him as a "may call" witness. Based on a letter from Dr. Berns, Fletcher's counsel argued that Dr. Berns was "unavailable" under the federal rules. If unavailable, Dr. Berns's deposition would be admissible. In response, defense counsel stated that Dr. Berns had been on the "may call" list and that the defendants did not learn of Dr. Berns's alleged unavailability until four days prior to trial. The district court allowed Fletcher's counsel to present portions of Dr. Berns's deposition but required him to inform defense counsel which parts would be used. The court believed Dr. Berns qualified as an unavailable witness because he was more than 100 miles away and his absence had not been strategically arranged. The case proceeded to trial.

         At the close of evidence, the district court granted the defendants a directed verdict on the conspiracy claim. Fletcher then voluntarily dismissed all of his state-law claims, leaving only his federal § 1983 claims. Over the defendants' objection, the district court submitted an instruction to the jury permitting it to return a verdict for punitive damages against Officer Moton.

         The jury found in favor of Officers Tomlinson and Carroll and against Officers Martorano and Moton. On each of the claims against Officers Martorano and Moton, the jury awarded compensatory damages of $100, 000 and punitive damages of $200, 000.

         Officers Martorano and Moton filed various post-trial motions, including a motion for new trial based upon the alleged erroneous admission of Dr. Berns's deposition testimony; a motion for judgment as a matter of law based upon the alleged lack of evidence against Officer Moton; and a motion to amend the judgment based upon the alleged failure to deduct the amounts that Fletcher received from his settlements with Corizon and Perry County.

         Relevant to this appeal, the court found no basis for granting a new trial, concluding that Dr. Berns was disclosed as a witness by Corizon and was cross-examined thoroughly by defense counsel. The district court found that Dr. Berns was unavailable under Federal Rule of Civil Procedure 32(a) pursuant to the letter from Dr. Berns's Chicago office stating that he would be practicing medicine in Chicago. In addition, the court noted that Fletcher putting Berns on the "may call" list did not preclude Fletcher from using his deposition, which was clearly identified in Fletcher's deposition designations. The court also held that the defendants could not argue post-trial that Dr. Berns ...


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