UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FREDDIE MCCOLLUM, JR.; MARTHA
MCCOLLUM; RETANIA MELISSA
MCCOLLUM,
Plaintiffs-Appellees,
v.
ROBERT MCDANIEL; JAMES MURPHY,
Individually and as police officers
in the Prince George’s County,
Maryland Police Department; PRINCE
GEORGE’S COUNTY, MARYLAND, a
Body Politic, No. 01-1578
Defendants-Appellants,
MICHAEL HUBBARD,
Defendant-Appellee,
and
JAMES KLINE, individually and as a
police officer in the Prince George’s
County, Maryland Police
Department,
Defendant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Catherine C. Blake, District Judge.
(CA-98-824-CCB)
Argued: February 25, 2002
Decided: March 25, 2002
2 MCCOLLUM v. MCDANIEL
Before LUTTIG and GREGORY, Circuit Judges, and
Henry M. HERLONG, Jr., United States District Judge
for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Laura Jean Gwinn, Upper Marlboro, Maryland, for
Appellants. Michael McGowan, MCGOWAN, CECIL & SMA-
THERS, L.L.C., Laurel, Maryland, for Appellees. ON BRIEF: Sean
D. Wallace, John A. Bielec, Upper Marlboro, Maryland, for Appel-
lants.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Freddie McCollum ("McCollum"), his wife, and his daughter
brought suit against the defendants under 42 U.S.C. § 1983 and state
law alleging, inter alia, excessive use of force. The case proceeded
to trial. The jury returned a verdict of over $4.1 million against the
defendants. The district court denied the defendants’ motion for a new
trial, but remitted the jury’s damages award, which the plaintiffs
accepted. The defendants appeal from the district court’s order deny-
ing their motion for a new trial.
I.
On June 28, 1997, McCollum was signaled to pull over by Prince
George’s County police officer Robert McDaniel ("McDaniel").
MCCOLLUM v. MCDANIEL 3
McDaniel pulled McCollum over because of his failure to display a
tag on the front of his vehicle. At the time of the incident, McCollum
was a fifty-year old black male. Nearly every fact following McDan-
iel’s signaling McCollum to pull over was disputed at trial.
McDaniel testified that after he turned on his blue light, McCollum
continued driving for about one mile and pulled into a driveway.
McCollum testified that he pulled over immediately, told McDaniel
that he had left his wallet at home, and motioned for the officer to fol-
low him to his house. When they arrived at the house, McCollum told
McDaniel that he was going into the house to get his driver’s license.
McCollum testified that McDaniel kept putting his hand on his gun
as if to draw it. When McCollum started to enter his house, McDaniel
sprayed pepper spray at him, missed, but hit his daughter Retania.
McDaniel testified that there was a brief altercation on the porch of
the house, but that McCollum got away and ran into the house.
McDaniel states that he did try to use his pepper spray at that point,
but that the door was closed on his arm. Several neighbors testified
that there was no struggle on the porch and that the officer’s arm was
not closed in the door. McCollum testified that at that point he was
very frightened and climbed into his attic to hide.
McDaniel called for backup and Officer James Murphy
("Murphy") and K-9 Officer Michael Hubbard ("Hubbard") arrived
on the scene. The officers, with Hubbard’s dog, entered McCollum’s
house. Officers McDaniel and Murphy eventually made their way into
the attic where they found McCollum hiding under some insulation.
The officers testified that as they got close to McCollum, he tried
to lunge past them. The officers attempted to grab McCollum, but the
three men fell through the ceiling. The officers testified that they
landed on top of McCollum. The officers also testified that the dog
was released at that time to apprehend McCollum.
McCollum’s story differs dramatically from that of the officers.
McCollum testified as follows. When the officers approached him in
the attic, he got down on his hands and knees and surrendered. The
officers then kicked him and began stomping him. While stomping
him, Officer McDaniel’s foot went through the ceiling. Officer
McDaniel told McCollum to lower himself down through the hole,
4 MCCOLLUM v. MCDANIEL
which he did, and the officers followed him down through the same
hole. Once in McCollum’s living room, the officers began to beat him
again, using a metal "asp." Officer McDaniel told him that he would
teach him for trying to run and Officer Murphy called him "a dumb
nigger." While the officers beat McCollum, they released the dog on
him several times.
McCollum was severely injured in the incident. He suffered several
fractures to the bones in his face. His right eye was ruptured and had
to be surgically removed. His ribs were broken. His left hand and
right leg were broken. His left lung collapsed and he suffered numer-
ous lacerations from dog bites. The officers testified that McCollum
received all of his injuries in the fall. Neither McDaniel nor Murphy
were injured in any way from the same fall.
Before the civil trial began, McCollum faced criminal charges for
assaulting Officers McDaniel and Hubbard, resisting arrest, and sev-
eral traffic offenses. McCollum was found not guilty of the criminal
charges and was only convicted of two traffic offenses (fleeing and
eluding on foot and displaying registration plate issued to another).
McCollum underwent several surgeries immediately following the
incident. His right eye was removed, his nasal bones were reshaped,
and bones were realigned in his left hand. Following his discharge
from the hospital, McCollum had several more surgeries. Plates and
screws were removed from his hand, the orbital bones in his face
were reconstructed, and his eyelids were reconstructed. McCollum
had another surgery on the muscles in his eye socket because his arti-
ficial eye would repeatedly fall out of his head.
McCollum’s doctors testified that he has the following permanent
injuries: (1) sensory deficit in his left hand; (2) partial limitation of
motion of the fifth finger; (3) loss of his right eye; (4) complete loss
of the orbital floor; (5) concave cheek bone, which had to be built up
using medpore and titanium; (6) posterior displacement of the cheek
bone; (7) chronic sinus problems due to the fractures of his facial
bones; (8) loss of sensation in his face due to the nerves being
crushed; and (9) permanent loss of depth perception and field of
vision due to the loss of his right eye.
MCCOLLUM v. MCDANIEL 5
The jury found one of the defendants liable for an unlawful entry
into McCollum’s home and awarded McCollum $1.00. The jury also
found the defendants liable for excessive use of force and awarded
McCollum $67,670 for past medical expenses, $145,000 for past and
future lost wages, $3.5 million in non-economic damages, and puni-
tive damages totaling $400,000. The jury’s total award was
$4,112,670.
The defendants filed a motion for new trial and/or remittitur. The
district court denied the motion for a new trial, but granted a new trial
nisi remittitur. The district court reduced the non-economic damages
award to $1.25 million and the punitive damages award to $135,000.
The total award after remittitur was $1,597,670, which was accepted
by McCollum.
The defendants raised several issues in their motion for a new trial
which are now before us on appeal. First, the defendants assert that
they are entitled to a new trial because of misconduct by plaintiffs’
counsel. Second, the defendants argue that the district court erred in
admitting into evidence hospital records containing references to "as-
sault." Third, the defendants argue that the district court erred in
charging the jury on respondeat superior liability of the county.
Finally, the defendants claim that the district court was required to
further remit the jury’s award on non-economic damages. Finding no
error, we affirm.
II.
The defendants assert that certain misconduct by McCollum’s
attorney requires a new trial. During cross-examination of McCollum,
defense counsel tried to impeach McCollum’s testimony by using his
answers to interrogatories. Defense counsel asked McCollum whether
McDaniel ever pointed his gun at him. McCollum responded that he
had not. Defense counsel asked McCollum about his answer to an
interrogatory where the word "brandished" was used. McCollum
stated that "brandished" was not a word that he would use. Defense
counsel then stated that McCollum had signed the interrogatory under
oath, but McCollum responded that it was not his signature on the
interrogatories. McCollum’s attorney, Mr. Smathers, told the court
that he had prepared the answers to interrogatories, sent McCollum
6 MCCOLLUM v. MCDANIEL
a copy, and then asked McCollum if he could sign it for him because
of an oncoming deadline. McCollum agreed and Mr. Smathers signed
McCollum’s name.
The court discussed with the parties a possible stipulation regard-
ing the interrogatory answers outside of the presence of the jury. The
instruction the court eventually gave the jury is as follows:
There had been an issue about Mr. McCollum’s signature on
his answers to interrogatories immediately before the break
and I neglected to get back to that when we had [an inter-
vening witness]. Counsel have spoken and agreed that Mr.
Smathers— and counsel, correct me if I’m wrong— Mr.
Smathers as Mr. McCollum’s counsel spoke with Mr.
McCollum, prepared the answers, sent him a copy, asked
him if the answers were correct and because of a lack of
time, asked Mr. McCollum if, he, Mr. Smathers, could sign
the answers to interrogatories for him. Mr. McCollum
agreed. Therefore, counsel are stipulating or agreeing that
the interrogatory answers are Mr. McCollum’s answers, the
same as if he had signed them personally.
(J.A. at 510.)
The defendants state that they intended to impeach McCollum’s
testimony with inconsistent answers on his interrogatories. At trial,
McCollum testified that the reason he fled from the police was
because of an adverse experience he had with the Prince George’s
County police prior to the incident. In his answers to interrogatories,
McCollum denied any prior contact with the Prince George’s County
police. The defendants argue that McCollum "deftly escapes an accu-
sation of perjury since the answer [to interrogatories] is signed by
counsel." (Appellant’s Br. at 13.) The defendants also state that they
intended to impeach McCollum with the inconsistency between the
interrogatory answer that McDaniel "brandished" his weapon and
McCollum’s trial version that McDaniel only kept putting his hand on
his weapon. The defendants argue that they were unable to impeach
McCollum’s credibility because of Mr. Smathers’ misconduct in sign-
ing McCollum’s name on the answers to interrogatories.
MCCOLLUM v. MCDANIEL 7
McCollum argues that the defendants did not preserve this issue for
appeal. McCollum states that the defendants did not object to Mr.
Smathers’ execution of his client’s answers, and that the defendants
participated in formulating the stipulation to be read to the jury.
McCollum further states that in order to preserve the matter, the
defendants were required to move for a mistrial at the time of the inci-
dent.
In their reply brief, the defendants do not dispute that they failed
to make a timely objection. Instead, the defendants argue that the
court may review this issue under the "plain error" doctrine. The
Court of Appeals may use its discretion to correct a forfeited error in
a civil case if "(1) there is an error; (2) the error is plain; (3) the error
affects substantial rights; and (4) the court determines, after examin-
ing the particulars of each case, that the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings." In re
Celotex Corp., 124 F.3d 619, 630-31 (4th Cir. 1997).
First, it is not at all clear that the court erred. The defendants have
not cited any law demonstrating that the way the district court han-
dled the situation was incorrect. Furthermore, the court’s limiting
instruction cured any potential prejudice. Appellate courts presume
that jurors understand and are able to follow the trial court’s instruc-
tions. See United States v. Smith, 88 F.3d 1350, 1364 (4th Cir. 1996).
We also find that the defendants’ substantial rights were not
affected. The defendants argue that Mr. Smathers’ misconduct
deprived them of their right to a fair and complete cross-examination
of McCollum. The defendants also argue that the honesty and integ-
rity of the judicial system is impugned by Mr. Smathers’ misrepresen-
tations and that no instruction could cure this misconduct. However,
as we have already stated, the district court’s instruction, which the
defendants participated in formulating, removed any prejudice. The
inconsistencies on which the defendants state they intended to
impeach McCollum’s credibility were tangential to the ultimate issue
in the case— whether McCollum received his injuries in a fall or at
the hands of the defendants. The district court did not think these
answers were significant as it found that Mr. Smathers’ "lapse of pro-
fessional conduct did not significantly prejudice the defendants and
8 MCCOLLUM v. MCDANIEL
does not justify a new trial." (J.A. at 63.) We agree. Because there is
no plain error, the district court is affirmed.
III.
Several medical records were admitted at trial that referenced "as-
sault." The defendants argue that these records could be read as
implying that it was the medical provider’s opinion that McCollum’s
injuries were sustained as the result of an assault instead of in a fall.
For example, Dr. Albert S. Cytryn’s February 22, 1998, letter states,
"Mr. McCollum was referred to me after being beaten by the Prince
George’s Police Department." (J.A. at 1300.)
The defendants filed a motion in limine on this issue which was
denied by the district court. The defendants also raised this issue in
their motion for a new trial. The district court determined that the
records were admissible under Rule 803(4) of the Federal Rules of
Evidence. We review the district court’s decision to admit evidence
for abuse of discretion. See United States v. Robinson, 275 F.3d 371,
383 (4th Cir. 2002).1
Rule 803(4) of the Federal Rules of Evidence provides that the fol-
lowing hearsay statements are not excluded:
Statements made for purposes of medical diagnosis or treat-
ment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
Fed. R. Evid. 803(4). "The hearsay exception for statements made for
purposes of medical diagnosis or treatment is based on the rationale
that the declarant’s motive guarantees [the statements’] trustworthi-
ness since treatment will depend on what is reported." Morgan v.
Foretich, 846 F.2d 941, 949 (4th Cir. 1988) (internal quotations omit-
ted) (alteration in original). "The two-part test set forth for admitting
1
McCollum asserts several reasons why this issue was not preserved
for appeal. We find that these assertions are without merit.
MCCOLLUM v. MCDANIEL 9
these hearsay statements is (1) the declarant’s motive in making the
statement must be consistent with the purposes of promoting treat-
ment; and, (2) the content of the statement must be such as is reason-
ably relied on by a physician in treatment or diagnosis." Id. (internal
quotations and footnote omitted).
The United States Court of Appeals for the Eighth Circuit analyzed
this issue in Roberts v. Hollocher, 664 F.2d 200 (8th Cir. 1981). Rob-
erts, the plaintiff, was injured in a scuffle with police officers and
brought a section 1983 claim against them for excessive force. See id.
at 202. Roberts sought the admission of a hospital record that read,
"Multiple contusions and hematoma, consistent with excessive force."
Id. at 204. The Eighth Circuit held that statements relating to present
or past conditions made to aid diagnosis or treatment are admissible
under Rule 803(4). See id. The court also stated that "statements
regarding the cause of the condition, if pertinent to diagnosis or treat-
ment" are admissible. Id. "Statements regarding fault, however," are
not admissible. Id.
The Eighth Circuit ruled that the district court properly excluded
the reference to "excessive force" because the statement was "a con-
clusion going to fault rather than the cause of the condition and [did]
not serve to promote diagnosis or treatment." Id. at 205. The court
also reasoned that, "While a statement that the injuries resulted from
‘force’ or ‘trauma’ might be admissible in some circumstances, the
conclusion that ‘excessive force’ was used was properly excluded
here." Id.
In another case, the Seventh Circuit ruled that a district court erred
in disallowing similar evidence. See United States v. Pollard, 790
F.2d 1309, 1313 (7th Cir. 1986), overruled on other grounds by
United States v. Sblendorio, 830 F.2d 1382, 1393 (7th Cir. 1987). In
Pollard, the voluntariness of a confession was a key issue in a crimi-
nal trial. The defendant, who had a deformed arm containing a steel
plate, claimed that before he gave his confession, police officers
twisted his arm behind his back, breaking the steel plate. See id. at
1311. The medical records contained statements that, "‘[t]he patient
claims that he was manhandled by the police officers, who hand-
cuffed him and twisted his arm.’" Id. at 1312 n.1. If the defendant was
in pain from the broken arm during his confession, the court found
10 MCCOLLUM v. MCDANIEL
that the defendant’s pain would bear on the issue of whether he volun-
tarily confessed. See id. at 1314.
Examining Rule 803(4), the Seventh Circuit stated the rule the
same way as the Eighth Circuit in Roberts, as quoted above, but
reached a different conclusion. The court stated:
The part of these records identifying one of the arresting
officers as the person who twisted defendant’s arm relates
to fault and is clearly inadmissible hearsay unless one of the
hearsay rule exceptions in Rule 803 applies. The remaining
statements relate to cause (defendant’s arm was twisted and
placed behind his back) and other matters . . . pertinent to
diagnosis and therefore are admissible under Rule 803(4).
Id. at 1314. See also Ramrattan v. Burger King Corp. 656 F. Supp.
522, 530 (D. Md. 1987) (holding that cause of injury in an automobile
accident was admissible, but portion of medical record stating which
party ran red light was statement of fault and was inadmissible under
Rule 803(4)).
The statements referencing "assault" in the medical records in this
case support an inference of both cause and fault. The key issue at
trial was not who assaulted McCollum, but whether he received his
injuries in an assault or in a fall. The defendants’ chief objection is
that the jury could have inferred from the medical records that it was
the medical provider’s opinion that McCollum received his injuries in
an assault rather than in a fall. The simplest and most logical infer-
ence to be drawn from the "assault" references is that this is what
McCollum told his doctors was the cause of his injuries.
Furthermore, in Pollard, the Seventh Circuit partially relied on the
fact that the defendant’s statements to the doctor were consistent with
his testimony throughout the case. See Pollard, 790 F.2d at 1314.
McCollum’s testimony is consistent with the statements in the medi-
cal records. A natural question from a doctor would be how McCol-
lum received his injuries. A statement as to the cause of injury would
be consistent with the purposes of promoting treatment. Assuming his
version is truthful, McCollum’s natural answer would not be "an inci-
dent" or "trauma," but "I was assaulted." McCollum’s statements
MCCOLLUM v. MCDANIEL 11
relate more to cause than fault, are consistent with the purposes of
promoting treatment, and are in response to information reasonably
requested and relied on by a physician. Under these facts, we cannot
say that the district court abused its discretion in admitting these
records under Rule 803(4).
IV.
The defendants contend that the district court erred in charging the
jury on respondeat superior. The district court gave the following
charge to the jury:
You are also instructed that the defendants’ employer,
Prince George’s County is responsible as a matter of law for
injuries caused by county employees who violate a plain-
tiff’s state constitutional rights while acting in the scope of
their employment. Accordingly, Prince George’s County
will be liable for any actual damages awarded to the plain-
tiffs for a violation of the Maryland Constitution.
(J.A. at 875.) Unlike federal law under section 1983, Maryland law
allows respondeat superior liability for constitutional torts. See
DiPino v. Davis, 729 A.2d 354, 372 (Md. 1999).
The defendants objected to the charge, arguing that because they
had stipulated to the county’s liability, the instruction was unneces-
sary and confusing to the jury. The defendants liken the court’s
instruction to the mention of insurance in a case. In its denial of the
defendants’ motion for a new trial, the district court dismissed this
objection stating, "The plaintiff sued the County and was entitled to
have the jury instructed on the theory of law under which the County
would be held liable. This is not a question of statutory indemnifica-
tion such as those involved in the cases cited by the defendants." (J.A.
at 64.)
"We review challenges to jury instructions for abuse of discretion."
Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th Cir. 1999). "The test
of the adequacy of jury instructions is whether the jury charge, con-
strued as a whole, adequately states the controlling legal principle
without misleading or confusing the jury." Id.
12 MCCOLLUM v. MCDANIEL
We agree with the district court’s determination of this issue. First,
the district court’s statement of the law was correct. See DiPino, 729
A.2d at 372. Second, as the district court held, the defendants’ anal-
ogy with statutory indemnification cases is inapposite. In the statutory
indemnification situations cited by the defendants and discussed
below, the municipalities were not parties and were not before the
jury. See Lawson v. Trowbridge, 153 F.3d 368, 370 (7th Cir. 1998);
Larez v. Holcomb, 16 F.3d 1513, 1518-20 (9th Cir. 1994); Griffin v.
Hilke, 804 F.2d 1052, 1056-57 (8th Cir. 1986). Here, the county is
named as a party and was before the jury. The district court noted that
"The County’s argument in this regard is no different from that which
might be made by any employer who would prefer not to be held
accountable for the torts of its employees." (J.A. at 64.) Because the
rationale advanced by the defendants does not apply to this case, the
district court did not abuse its discretion in giving this instruction.
V.
The jury awarded McCollum more than $4.1 million in total dam-
ages. The district court remitted the total award to $1,597,670, signifi-
cantly reducing the jury’s award of non-economic damages and the
jury’s punitive damages award. The district court reduced the jury’s
award of non-economic damages from $3.5 million to $1.25 million.
The defendants argue that the trial judge erred in not further remitting
the compensatory damages award of the jury.2
"We review a district court’s denial of a Rule 59(a) motion for a
new trial based upon the alleged excessiveness of the jury’s compen-
satory damage award for abuse of discretion, giving ‘the benefit of
every doubt to the judgment of the trial judge.’" Konkel v. Bob Evans
Farms, Inc., 165 F.3d 275, 280 (4th Cir. 1999) (quoting Gasperini v.
Center for Humanities, Inc., 518 U.S. 415, 438-39 (1996)). Under
Gasperini, the trial court must apply state law standards in determin-
ing whether to grant a new trial nisi remittitur, but the appellate court
applies the federal abuse of discretion standard of review to a trial
judge’s decision on both the state and federal law claims. See
Gasperini, 518 U.S. at 438.
2
The defendants did not argue in their brief that the trial court should
have further remitted the punitive damages award.
MCCOLLUM v. MCDANIEL 13
As to the federal claims, a court should grant a motion for a new
trial if "(1) the verdict is against the clear weight of the evidence, or
(2) is based upon evidence which is false, or (3) will result in a mis-
carriage of justice, even though there may be substantial evidence
which would prevent the direction of a verdict." Cline v. Wal-Mart
Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (internal quotations
omitted). As to the state law claims, a trial judge may grant a new trial
on the ground of excessiveness of the verdict if the verdict is grossly
excessive, shocks the conscience of the court, is inordinate, outra-
geously excessive, or even simply excessive. See Banegura v. Taylor,
541 A.2d 969, 976 (Md. 1988).
The district court did not abuse its discretion in its application of
federal and state principles of remittitur in this case. The district court
stated that under both federal and state law standards, McCollum’s
case supported "at the outermost" a non-economic damages award of
$1.25 million and granted McCollum a new trial nisi remittitur at that
amount. The defendants argue that there was no testimony or evi-
dence relating to ongoing physical or emotional injuries, and no evi-
dence that McCollum’s life had been permanently altered because of
the incident. However, the district court took those facts into account
in its opinion. (J.A. at 66). The district court had before it evidence
of the severity of the beating and the full extent of the injuries McCol-
lum suffered. There was evidence before the court of McCollum’s
numerous surgeries and the loss of his eye. The district court properly
weighed these considerations and did not abuse its discretion in refus-
ing to further remit the jury’s award of non-economic damages.
AFFIRMED