Maj. Peale and Harrell-Reid seek remittitur on the $ 5,000 in punitive damages assessed against each of them. "Where the verdict is so large as to shock the conscience of the court ... [the court may] order plaintiff to remit the portion of the verdict in excess of the maximum amount supportable by the evidence or, if the remittitur [is] refused, to submit to a new trial." Kazan v. Wolinski, 721 F.2d 911, 914 (3d Cir. 1983) (citing Perzeproski v. American President Lines, Ltd., 319 F. Supp. 1329, 1330 (E.D. Pa. 1970)). The verdict must be "'so grossly excessive as to shock the judicial conscience.'" Keenan, 983 F.2d at 472 (quoting Gumbs v. Pueblo Int'l Inc., 823 F.2d 768, 771 (3d Cir. 1987)).
The award of $ 5,000 in punitive damages against Maj. Peale and $ 5,000 against Harrell-Reid is not large enough to "shock the judicial conscience" of this court. Id. The evidence presented at trial established that Maj. Peale and Harrell-Reid recklessly, if not intentionally, kept Wilson in segregation for ten days before determining his innocence. The award of punitive damages was not "shocking, unfair or biased." Frankel v. United States, 466 F.2d 1226, 1228 (3d Cir. 1972). The court will not reduce the amount of punitive damages assessed against Maj. Peale and Harrell-Reid.
V. Exclusion of C.O. Nolan's Testimony Concerning His Absence From Court
Defendant C.O. Nolan seeks a new trial on the grounds that the court erred in preventing him from testifying via trial deposition regarding his absence from court throughout the entire trial. He argues this error was prejudicial and warrants a new trial on both liability and damages.
The court notified C.O. Nolan by Order dated May 20, 1997, that Wilson's trial would begin on July 7, 1997. Defense counsel did not inform the court that C.O. Nolan would not attend the trial until the day voir dire began: July 7th. Defense counsel stated C.O. Nolan was attending training to become a deputy sheriff in Carlisle, Pennsylvania. See N.T. (7/7/97) at 13.
Defense counsel requested permission to read C.O. Nolan's discovery deposition into the record at trial, in lieu of C.O. Nolan's live testimony, pursuant to Federal Rule of Civil Procedure 32(a)(3)(B) (allowing the use of depositions at trial if the witness is more than 100 miles away).
Wilson's counsel objected to the use of C.O. Nolan's discovery deposition at trial because C.O. Nolan had "procured" his own absence. The court agreed. See N.T. (7/7/97) at 16-18. The court agreed to allow defense counsel to present C.O. Nolan's testimony through a trial deposition as an accommodation to C.O. Nolan, even though Rule 32(a)(3) did not require it.
When counsel took C.O. Nolan's trial deposition, defense counsel asked C.O. Nolan about the reasons for his absence from trial. Defense counsel later tried to read those portions of the deposition into the trial record. Wilson's counsel objected, and the court sustained the objection. See N.T. (7/9/97) at 95-96. The court, explaining to the jury the reasons for offering testimony via a deposition rather than live testimony, stated that "if for some reason, a person can't be present and is excused by the Court or unavailable, because they are too far away ... we permit their testimony to be read by deposition, as if it had been here." Id. at 96.
C.O. Nolan voluntarily made himself unavailable; he was not compelled to be absent from the courtroom during the trial. C.O. Nolan had ample opportunity to inform the court of the conflict between the trial date and his deputy sheriff training in Carlisle. Evidentiary rulings are left to the sound discretion of the trial judge. See, e.g., In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 453 (3d Cir. 1997); Barker v. Deere & Co., 60 F.3d 158, 161 (3d Cir. 1995); Glass v. Philadelphia Electric Co., 34 F.3d 188, 191 (3d Cir. 1994) (citing In re Japanese Electronic Products, 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds, Matsushita Electronic Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)); Pfeiffer v. Marion Center Area Sch. Dist., 917 F.2d 779, 781-82 (3d Cir. 1990). The court did not have to allow C.O. Nolan to testify at all via deposition; there was no error in limiting the scope of his deposition testimony at trial.
VI. The Special Verdict Sheet
C.O. Nolan argues the court erred in using a special verdict form that did not allow the jury to allocate compensatory damages among defendants on Wilson's two separate causes of action. C.O. Nolan asserts the court must grant him a new trial on both liability and damages, if the court enters judgment as a matter of law in favor of defendants Maj. Peale and Harrell-Reid. Because the court is not entering judgment as a matter of law in favor of Maj. Peale and Harrell-Reid, it need not address this argument.
Defendants Maj. Peale, Harrell-Reid and C.O. Nolan have not carried their burden of establishing they are entitled to judgment as a matter of law on the jury's verdict on liability or punitive damages; they have not convinced the court that the jury's verdict was so "contrary to the great weight of the evidence" that a new trial is appropriate. See Roebuck, 852 F.2d at 735. The award of punitive damages was not "shocking" enough to justify remittitur. See Keenan, 983 F.2d at 472. Defendant C.O. Nolan is not entitled to a new trial based on the court's exclusion of the portion of his trial deposition explaining his absence from court.
An appropriate order follows.
AND NOW, this 9th day of October, 1997, upon consideration of defendants Maj. George Peale's, Carolyn Harrell-Reid's and C.O. Gerard Nolan's renewed motion for judgment as a matter of law, for a new trial and/or for remittitur, plaintiff Jerry Wilson's response thereto, and in accordance with the attached Memorandum, it is hereby ORDERED that:
The renewed motion for judgment as a matter of law, for a new trial and/or for remittitur filed by defendants Maj. George Peale, Carolyn Harrell-Reid and C.O. Gerard Nolan is DENIED.
Norma L. Shapiro, J.