the criminal trial of Richard Odato, involving the charges brought by defendants, in the Court of Common Pleas of Allegheny County, Pennsylvania. The evidence was admitted under Federal Rule of Evidence 804(b)(1). Specifically, defendants contend that plaintiff was required to notify them that the witness was unavailable for trial, and that plaintiff's counsel intended to use the transcript of the former testimony. Defendants also argue that the evidence did not qualify as a hearsay exception under Rule 804(b)(1). We disagree.
There is no requirement under federal or local rule that a party notify an adversary that a witness has moved from the district. Local Rule 5 II requires plaintiff to supply the names and addresses of all witnesses in a pre-trial statement, and plaintiff complied on April 1, 1985. Miss Shontz moved from this jurisdiction thereafter but there was no duty to notify defendants' counsel of that fact. Moreover, the subpoena power of this court extends only 100 miles, see Fed.R.Civ.P. 45(e)(1), and Miss Shontz was beyond the power of this court to summon her, even if plaintiff's counsel had filed a formal motion.
Counsel is not required to perform a useless act.
We are also satisfied that the testimony of record concerning the present residence of Deborah Shontz, coupled with the side bar representations of an officer of this court, are sufficient to establish that the witness was unavailable for trial in this district, under Rule 804(a)(5), and that counsel made a good faith effort to obtain her attendance.
The admission of the testimony of Shontz from the criminal trial involving Richard Odato was neither erroneous nor unfair to the police officers, and the evidence was not barred by the hearsay rule. Odato was charged with disorderly conduct and criminal mischief and he was found not guilty after a bench trial before Judge Robert Dauer. Those charges were the genesis of the instant action, and the Assistant District Attorney of Allegheny County was afforded the right to "develop the testimony" of Miss Shontz through cross-examination. He apparently declined to do so, but that strategy does not bar former testimony. The testimony was given by a witness at another hearing involving the same incident, at which both sides were represented by counsel, and the police officers had the opportunity and motive to test the credibility of Deborah Shontz by cross-examination. We hold that the evidence meets the test of Rule 804(b)(1) and there was no surprise, prejudice or unfairness to defendants. Carpenter v. Dizio, 506 F. Supp. 1117, 1123-1124 (E.D.Pa. 1981); cf. Zenith Radio Corp. v. Matsushita Elec. Co., 505 F. Supp. 1190, 1252-1255 (E.D.Pa. 1980); Lloyd v. Amer. Export Lines, Inc., 580 F.2d 1179 (3d Cir.), cert. denied, 439 U.S. 969, 99 S. Ct. 461, 58 L. Ed. 2d 428 (1978).
Defendants next contend that the verdict was excessive. We disagree. There is evidence to support the jury's finding that a citizen was arrested without probable cause with neighbors present, assaulted at the scene, subjected to excessive force in a police car, and suffered injuries that required medical attention. Plaintiff also was required, according to the evidence, to pay counsel fees to defend the state court criminal charges. Actual damages totalled $ 1,364.00.
We cannot say that the award of $ 13,000 for compensatory damages against Officer Vargo, or the award of $ 8,000 against Officer Molzer, is shocking or unreasonable under the circumstances. Plaintiff presented evidence of pain, suffering and inconvenience, damage to his reputation, personal humiliation and mental anguish. The jury properly distinguished between the relative culpability of defendants and we hold that that award is not "so grossly excessive as to shock the judicial conscience." Black v. Stephens, 662 F.2d 181, 192 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 71 L. Ed. 2d 876, 102 S. Ct. 1646 (1982).
Defendants' motion for a new trial will be denied.
ORDER OF COURT
AND NOW, this day of January, 1988, IT IS ORDERED that the motion of defendant, John Vargo, for judgment not withstanding the verdict on the award of punitive damages in the sum of $ 2,000 be and hereby is granted.
IT IS FURTHER ORDERED that the motion of defendant, Fred Molzer, for judgment not withstanding the verdict on the award of punitive damages in the sum of $ 2,000 be and hereby is granted.
IT IS FURTHER ORDERED that the motion of defendants, John Vargo and Fred Molzer, for judgment not withstanding the verdict on all other issues be and hereby is denied.
IT IS FURTHER ORDERED that the motion of defendants, John Vargo and Fred Molzer, for a new trial be and hereby is denied.