Calvin Fletcher, Sr. Plaintiff - Appellee
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
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
Louis Police Department (SLPD) Officers Nicholas Martorano
and John Moton appeal from the district
court's 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.
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).
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.
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.
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.
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.
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.
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 at 8:26 p.m. Officer Jonathan Carroll
arrived driving the paddy wagon at 8:29 p.m. 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
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,
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
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."
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.
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.
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.
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
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.
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. 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.
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.
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.
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.
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,
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.
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.
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
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.
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