In Re: Bayside

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit

6-15-2009

In Re: Bayside
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3913

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 07-3913
_____________

IN RE: BAYSIDE PRISON LITIGATION

LUIS MEJIAS
v.
THEODORE ROTH;
SCOTT FAUNCE;
GARY HILTON;
JOHN COUGHLIN;
WILLIAM FAUVER

Scott Faunce,
Appellant

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 97-cv-05127)
District Judge: Honorable Robert B. Kugler

Argued May 20, 2009

Before: RENDELL and GARTH, Circuit Judges,
and VANASKIE, District Judge*

(Filed: June 15, 2009)

*Honorable Thomas I. Vanaskie, Judge of the United States District Court for the
Middle District of Pennsylvania, sitting by designation.
Mark M. Roselli, Esq. [ARGUED]
Roselli, Griegel, Lozier & Lazzaro
1337 State Highway 33
Hamilton Square, NJ 08690
Counsel for Appellant

Paul J. Hirsh, Esq.
Suite 300
10 Madison Avenue
Morristown, NJ 07960

Lawrence W. Lindsay, Esq.
Justin T. Loughry, Esq. [ARGUED]
Loughry & Lindsay
330 Market Street
Camden, NJ 08102
Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

This appeal comes to us from a jury verdict in favor of plaintiff inmate Luis Mejias

and against the prison administrator Scott Faunce, awarding Mejias compensatory

damages of $45,000 and punitive damages in the amount of $200,000, arising out of

events following a lockdown in the prison after the death of one of the guards. We must

decide, first, whether Faunce is entitled to a new trial because plaintiff’s counsel engaged

in prejudicial misconduct during his summation and because the verdict was not

supported by sufficient evidence, and second, whether the District Court correctly

concluded that the amount of punitive damages awarded was appropriate under the case

2
law. We conclude that the claimed misconduct was harmless, and that adequate evidence

supported the verdict. However, we find that the District Court failed to give sufficient

consideration to the remittitur motion of defendant as to the punitive damages award,

requiring us to remand the case.

Because we write solely for the benefit of the parties, we confine our discussion to

the facts salient to this appeal. Mejias’s claims arose during a lockdown of Bayside State

Prison (“Bayside”), ordered after an inmate murdered a guard. Mejias alleges that he was

severely beaten by Special Operations Group (“SOG”) personnel deployed to secure the

facility during the lockdown. Mejias subsequently filed suit under 42 U.S.C. § 1983,

claiming that Faunce, Bayside’s administrator, was deliberately indifferent to a substantial

risk of serious harm to him, when Faunce failed to respond to numerous allegations of

inmate abuse. The jury awarded Mejias $45,000 in compensatory damages and $200,000

in punitive damages. Faunce requested a new trial on alternative grounds – that the

verdict was unsupported by insufficient evidence and was tainted by attorney misconduct.

Faunce also moved to vacate or reduce the punitive damages award. Judge Kugler denied

the motion in its entirety, and Faunce appealed.1

We first consider whether prejudicial misconduct occurred. At the conclusion of

plaintiff’s closing arguments, defense counsel, Mark Roselli, registered several

1
The District Court exercised jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. §
1334. We have jurisdiction under 28 U.S.C. § 1291.

3
objections: that plaintiff’s counsel, Jaime Kaigh, (1) improperly attacked his credibility,

(2) referred to SOG personnel as “thugs,” (3) speculated as to why Mejias fell asleep at

trial, (4) asserted that Faunce knew about inmate abuse, and (5) misstated the applicable

law. Roselli renews these objections, and raises several other improprieties, on appeal.

Where a motion for a new trial is based on attorney misconduct, we review a

district court’s disposition for abuse of discretion, reversing only if “no reasonable person

would adopt the district court’s view,” and if it is “reasonably probable” that the verdict

was influenced by the improprieties committed, viewed as a whole. Oddi v. Ford Motor

Co., 234 F.3d 136, 146 (3d Cir. 2000); Greenleaf v. Garlock, Inc., 174 F.3d 352 (3d Cir.

1999); Draper v. Airco Inc., 580 F.2d 91, 94, 97 (3d Cir. 1978). Moreover, where

objections are raised for the first time on appeal, we review for “plain error,” and only

“particularly egregious” errors that would result in a “miscarriage of justice” will warrant

a new trial. United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v.

Frady, 456 U.S. 152, 163 & n.14 (1982)).

First, Roselli argues that Kaigh improperly attacked his credibility, by accusing

him of “spinning” evidence, “selling” the jury on facts, and suggesting that Roselli had a

“bridge he’d like to sell you [the jury] in Brooklyn.” A. 757-58a, 760a. We reject

Faunce’s analogy of these statements to the “vituperative and insulting” references in

Draper, which we found tainted the verdict. 580 F.2d at 95. First, whereas the attorney in

Draper charged defense counsel with ethical and criminal violations, Kaigh merely

4
accused Roselli of zealous advocacy – a rather benign suggestion. Id. at 97 n.9. Second,

in Draper, the attorney invoked class issues, disparaging defense counsel’s extraordinary

wealth; here, by contrast, Kaigh avoided charged social issues. Id. at 97. Third, in

Draper, the attorney, referencing defense counsel’s personal wealth, violation of

discovery rules, and criminal conduct, invited the jury to consider extra-record

information. Id. Kaigh, however, confined his comments to facts in evidence. Finally,

whereas the curative instructions in Draper, delivered the day after the misconduct

occurred, were too little, too late, id., Judge Kugler promptly directed the jury to disregard

Kaigh’s statements. Hence, we conclude that Draper does not compel a new trial here.2

We summarily dispose of Roselli’s second objection – that Kaigh’s reference to

SOG personnel as “thugs,” utterance of the words “crap” and “damn,” and brief

comparison of Faunce to a fictional film character were prejudicial. Where punitive

damages are at issue, counsel has significant rhetorical leeway. Dunn, 1 F.3d at 1377; cf.

Gonzalez v. Carey, 58 Fed. Appx. 269, 270 (9th Cir. 2003) (finding characterization of

criminal defendant as “thug” to be within the permissible range of argument). Even

assuming, arguendo, that Kaigh’s comments were improper, they were isolated, were not

directed at Faunce, and were followed by a prompt curative instruction. There was no

2
We also reject Roselli’s related argument – that Kaigh improperly suggested that
Faunce was “in denial,” “hoodwinked” the jury, and suffered a “convenient memory
lapse.” A. 756a, 762a, 765a. These remarks, raised for the first time on appeal, were less
egregious than the accusation of “corporate lies” that we found harmless in Dunn v.
Hovic, where a timely objection was registered. 1 F.3d 1371, 1377 & n.3 (3d Cir. 1993).

5
error here.

Roselli’s next objection – that Kaigh’s suggestion that Mejias took medication was

prejudicial – is also unavailing. In his summation, Kaigh suggested that medication might

have caused Mejias to fall asleep during trial. Because Faunce fails to explain how

Mejias’s use of an unidentified medication was prejudicial, no reversible error occurred.

Roselli’s fourth objection is that there was no basis for Kaigh’s assertion that

Faunce received memos documenting inmate abuse. Citing Faunce’s contrary trial

testimony, Roselli maintains that Kaigh’s assertion was unsupported. Because prison

investigators testified that they sent memos documenting inmate abuse to Faunce, we

conclude that Kaigh’s assertion rested on an adequate evidentiary foundation and was

thus permissible. A. 664a, 667a, 669-670a.3

Roselli’s fifth objection is that Kaigh misstated the law by asserting that Faunce’s

failure to maintain a log book and to require SOG personnel to wear identifying

3
We also reject two related objections, urged for the first time on appeal. First, Roselli
contends that there was no basis for Kaigh’s assertion that Faunce was “getting
allegations of inmate abuse from “day one or day two” of the lockdown. A. 761a. To the
contrary, Faunce conceded precisely this fact on direct examination. A. 687a. Second,
Faunce argues that Kaigh misrepresented the contents of a memo transmitted by Lisa
Little, a prison official, to Faunce. In his summation, Kaigh noted that the memo contains
allegations of Eighth Amendment violations related to the lockdown. Faunce maintains
that the memo dealt, instead, with the prison’s failure to provide inmates their required
medications. Even assuming, arguendo, that Kaigh’s assertion was unfounded, no
“miscarriage of justice” resulted, since it was unlikely that the jury relied on Kaigh’s
characterization of the memo, which was not introduced into evidence and which
received only brief mention in Kaigh’s summation.

6
information established an Eighth Amendment violation. Roselli misconstrues Kaigh’s

argument: Kaigh identified the absence of a log book and identifying information as

probative, but not conclusive, of deliberate indifference. A. 687a. In any event, Judge

Kugler issued prompt curative instructions, informed the jury of the proper legal standard,

and repeatedly admonished the jury that counsels’ arguments were not authoritative

statements of the law. A. 745-46a, 748a, 764a. On these facts, we conclude that Kaigh’s

alleged misstatements were harmless.

Finally, Faunce contends that he was prejudiced when Mejias blurted, “[T]hey beat

our ass” during Roselli’s summation.4 Faunce did not request curative instructions.5 We

conclude, as the District Court did, that Mejias’s outburst was as likely to harm as to aid

him, and that, in any event, jurors heeded Judge Kugler’s instruction to confine their

deliberations to the evidence presented at trial. A. 745a, 764a.

In addition to these issues, Faunce identifies for the first time on appeal several

other improprieties, which we review for plain error. Faunce argues that Kaigh

improperly vouched for prison investigators, whom he variously described as “people of

honor that . . . told the truth,” who were “honest,” and who “kn[e]w what happened.” A.

4
In a sworn declaration, Roselli attests, but the record does not reflect, that Mejias also
called Roselli a “liar” immediately thereafter. A. 9a.
5
Although Judge Kugler admonished Mejias not to interrupt counsel, it is unclear
whether Judge Kugler acted sua sponte or pursuant to timely objection by defense
counsel. A. 756a. In either event, we conclude that the remark was not sufficiently
prejudicial to warrant a new trial.

7
762. We have generally prohibited counsel from “vouching” for witnesses – a tactic that

can “convey the impression that evidence not presented to the jury but known” to counsel

supports a witness’s credibility. See U. S. ex rel. Haynes v. McKendrick, 350 F.Supp. 990,

996-97 (S.D.N.Y. 1972); see also Lawn v. United States, 355 U.S. 339, 359 n.15 (1958).

Here, however, Kaigh did not assert personal knowledge of investigators’ integrity, but

rather relied on evidence in the record, including investigators’ substantial experience,

professional duty to be impartial, and the absence of an ulterior motive to report abuse. A.

758, 762. This was not improper.

Next, Faunce contends that Kaigh misstated the “deliberate indifference” standard

by suggesting that supervisory liability would attach if Faunce “should have known”

about allegations of inmate abuse. A. 760a. However, Kaigh properly articulated the

essential elements of the deliberate indifference standard set forth in Farmer v. Brennan,

511 U.S. 825, 837 (1994) (quoted in Kaucher v. County of Bucks, 455 F.3d 418, 427 (3d

Cir. 2006)). There, the Court stated that supervisory liability may be imposed when an

“official knows of and disregards an excessive risk to inmate health and safety; the

official must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.” Kaigh

appropriately emphasized the requirement of actual knowledge, arguing that Faunce was,

8
in fact, aware of allegations of inmate abuse.6 In any event, Faunce concedes that Judge

Kugler properly instructed jurors that proof of actual knowledge of inmate abuse was

necessary to impose liability, that they were required to follow the law as provided by

him, and that counsels’ arguments were just that – argument. A. 745-46a, 748a, 764a.

Hence, no miscarriage of justice resulted.7

Faunce’s final argument is that Kaigh urged the jury to consider the “lack of

proofs” – that is, to draw adverse inferences from his failure to adduce evidence in

Kaigh’s possession and probative on the particular issue. A. 760. However, we have

made clear that, “[w]here relevant information . . . is in the possession of one party and

not provided, then an adverse inference may be drawn that such information would be

harmful to the party who fails to provide it.” Riley v. Taylor, 277 F.3d 261, 283 (3d Cir.

2001) (quoting McMahan & Co. v. Po Folks, Inc., 206 F.3d 627, 632 (6th Cir. 2000)); see

Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226 (1939) (“The production of

weak evidence when strong is available can lead only to the conclusion that the strong

6
Kaigh stated, “Scott Faunce was deliberately indifferent to this and every other inmate
who risked injury in that time frame. He was indifferent because of the Wayne Zraski
memo because he got a memo that said an inmate alleged (sic) SOG hit me and beat me
for no reason. He was on notice from that moment. Wayne Z. Memo. And he was on
notice because of the conversation with Lebak.” A. 760a.
7
Faunce also argues that Kaigh violated the so-called “Golden Rule” by urging the jury
to put itself in Faunce’s shoes in assessing liability. Edwards v. City of Phila., however,
forecloses Faunce’s argument. 860 F.2d 568, 574 (3d Cir. 1988) (“[A] clear and complete
jury instruction on the elements of the claim asserted and on the allocation of the burdens
of proof, whenever given, is sufficient to cure harm caused by a ‘Golden Rule’
argument.”).

9
would have been adverse.”).

Hence, we conclude that Kaigh’s conduct during summation was not sufficiently

prejudicial to warrant a new trial.

Alternatively, Faunce seeks a new trial because the “the minimum quantum of

evidence” necessary to sustain the verdict was not presented. Buczek v. Continental Cas.

Ins. Co., 378 F.3d 284, 288 (3d Cir. 2004). Faunce singles out two facts as unsupported

by the record – that Mejias was actually beaten, and that defendant was aware, but chose

to disregard, a substantial risk of serious injury to plaintiff. We review a district court’s

decision whether to grant a new trial on the basis that the verdict is against the weight of

the evidence for abuse of discretion, drawing all reasonable inferences from the evidence

presented in favor of the non-moving party. Sheridan v. E.I. DuPont de Nemours and Co.,

100 F.3d 1061, 1072 (3d Cir. 2006); Greenleaf, 174 F.3d at 365-66; see Roebuck v.

Drexel Univ., 852 F.2d 715, 735 (3d Cir. 1988). “[N]ew trials because the verdict is

against the weight of the evidence are proper only when the record shows that the jury’s

verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to

be overturned or shocks our conscience.” Williamson v. Consolidated Rail Corp., 926

F.2d 1344, 1353 (3d Cir. 1991).

As to Faunce’s first contention, ample evidence, including Mejias’s testimony, the

testimony of Ombudswoman Jessie Rojas, and contemporaneous photographs,

substantiated plaintiff’s claimed injuries. A. 660-63a, 704a, 705a. Faunce’s second

10
argument is also unavailing. Ombudswomen Lebak and Rojas testified that they

communicated to Faunce, verbally and in writing, that they received numerous allegations

of inmate abuse. A. 645-47a, 659-67a, 669-70a. In fact, Faunce acknowledged that he

received one to two allegations of inmate abuse daily since the lockdown’s inception. A.

687a. Nonetheless, Faunce admits that he did not personally review videotapes of inmate

movement, and could not recall ever discussing with ombudsmen, or receiving memos,

regarding inmate abuse. A. 683-86a. Accordingly, a jury could rationally conclude that

Faunce was deliberately indifferent to a substantial risk of serious harm to plaintiff.

Faunce’s final contention is that the punitive damages award was excessive.8 The

jury awarded Mejias $45,000 in compensatory damages 9 and $200,000 in punitive

damages. Because the constitutional magnitude of a punitive damages award implicates

due process concerns, we review de novo a district court’s decision sustaining the amount

8
Faunce also maintains that punitive damages were improper because he did not act
with a “reckless disregard” of Mejias’s constitutional rights. Appellant’s Br. at 46-47. As
discussed, sufficient evidence supported the jury’s determination that Faunce acted with
deliberate indifference. Accordingly, the imposition of punitive damages was not
improper. See Farmer, 511 U.S. at 836 (“[A]cting or failing to act with deliberate
indifference to a substantial risk of serious harm to a prisoner is the equivalent of
recklessly disregarding that risk.”).
9
Faunce also contends that insufficient evidence supported the jury's compensatory
damages verdict. We will grant a new trial on the basis that the verdict was against the
weight of the evidence only where a miscarriage of justice would result if the verdict
were to stand. Williamson, 926 F.2d at 1353. Here, adequate evidence supported the
award: prison investigators testified to Mejias's extensive bruising, his distress during and
following the assault, and his fear of further reprisals if he filed a complaint. On the
record before us, we have no basis on which to disturb the jury verdict.

11
of a jury’s punitive damages award. See Cooper Industries, Inc. v. Leatherman Tool

Group, Inc., 532 U.S. 424, 436 (2001); Willow Inn, Inc. v. Public Service Mutual Ins. Co.,

399 F.3d 224, 230 (3d Cir. 2005). We must “determine whether the punitive damage

award is so ‘grossly disproportional’ to the defendant’s conduct as to amount to a

constitutional violation.” Id. Although Judge Kugler acknowledged that “the punitive

damages award against Faunce is more difficult to justify because he didn’t personally

assault anyone,” he upheld the punitive damages award, noting that “[c]learly he [Faunce]

did nothing to end the beatings,” that the jury was properly instructed on the law, and that

the sum awarded did not “violate[] the precepts set forth in recent Supreme Court cases.”

A. 7a.

Here, the sum awarded - $200,000 - was roughly 4.5 times the compensatory

award. In BMW of North America, Inc. v. Gore, the Court indicated that the punitive

damages award must bear a “reasonable relationship” to the “harm that actually has

occurred” and to the harm “likely to result in the future.” 517 U.S. 559, 581 (1996).

Although the Supreme Court has not adopted, or, for that matter, prohibited a particular

mathematical ratio of punitive to compensatory damages, Willow Inn, 399 F. 3d at 233, it

has indicated that “an award of more than four times the amount of compensatory

damages might be close to the line of constitutional impropriety.” State Farm Mut. Auto.

Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (citing Pac. Mut. Life Ins. Co. v. Haslip,

499 U.S. 1, 23-24 (1991)); see Gore, 517 U.S. at 581 (citing long legislative history of

12
double, treble, and quadruple damages to deter and punish wrongdoing). Cf. Exxon

Shipping Co. v. Baker, ___ U.S.___, 128 S. Ct. 2605, 2634 (2008) (holding that

maximum ratio of punitive to compensatory damages permitted under maritime common

law is 1:1). As we explained in Willow Inn, “the ratio of punitive damages to the harm

caused by the defendant is a tool to insure that the two bear a reasonable relationship to

each other.” 399 F.3d at 233-34. Where compensatory relief is substantial, a large ratio

of punitive to compensatory damages is especially likely to be excessive. See, e.g.,

Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir. 2005); Williams v.

ConAgra Poultry Co., 378 F.3d 790, 796-99 (8th Cir. 2004); Thomas v. iStar Fin., Inc.,

508 F.Supp.2d 252, 263 (S.D.N.Y. 2007). Accordingly, in such a case, several courts

have found a ratio between 1:1 and 2:1 to comport with constitutional restrictions.10

10
See, e.g., Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470, 487 (6th Cir.
2007) (“[A] ratio in the range of 1:1 or 2:1 is all that due process will allow” where the
compensatory damages award was already substantial-$366,939-and only one of the
reprehensibility factors was present); Williams, 378 F.3d at 796-99 (reducing punitive
damages award from an approximately 10:1 ratio to a 1:1 ratio because plaintiff received
substantial compensatory damages-$600,000); Thomas, 508 F.Supp.2d at 263 (“[T]he
Court believes the [3:1 to 4:1] ratio in this case is excessive because Thomas was
awarded a very substantial amount in compensatory damages [$443,500], making a
punitive award equal to the compensatory damage award more appropriate.”); Zakre v.
Norddeutsche Landesbank Girozentrale, 541 F.Supp.2d 555, 565 (S.D.N.Y. 2008)
(reducing a punitive damages award, where the ratio was 2:1, because compensatory
damages were substantial-$1.65 million).

13
Although we do not establish a maximum ratio of punitive to compensatory damages, we

believe these precedents provide helpful guidance to district courts.11

Here, the jury awarded Mejias $45,000 in compensatory damages – substantial

relief given the extent of plaintiff’s injuries. While punitive damages of greater than four

times this significant compensatory award might be justified, the district court did not

seem to consider this a close case. We, however, believe that it is, and that the motion to

reduce the award deserves close scrutiny in light of the Supreme Court’s jurisprudence.

We are cognizant of facts supporting a punitive damages verdict here: that Mejias

suffered physical rather than solely economic harm; that Faunce, as Bayside’s

administrator, occupied a unique position of authority and responsibility; and that punitive

damages might be necessary to deter administrative complacency and ensure inmate

safety. Thus, we do not second guess the District Court’s determination in this regard.

However, given the foregoing precedents, we believe that the precise amount of damages

merits a hard look.12 Accordingly, we will AFFIRM the jury’s verdict but will VACATE

11
Judge Garth would hold that the maximum constitutional limit for punitive damages
is a ratio of 1:1. He relies among other opinions on Justice Souter’s recent opinion in
Exxon Shipping v. Baker, ___ U.S. ___, 128 S. Ct. 2605 (2008), which establishes a 1:1
ratio, albeit in a maritime context.
12
The District Court’s review of punitive damages must ensure that the amount
awarded “not be disproportionately excessive to the degree of reprehensibility of the
defendant’s conduct and the harm that conduct visited upon the plaintiff, and the award
must not exceed the state legislature’s judgment of the appropriate sanctions for the
conduct.” Willow Inn, 399 F.3d at 230. In carrying out this directive, the Court could
consider, for instance, other such awards in the Bayside Prison cases (although,
admittedly, each case must be judged on its own facts, and on the evidence presented) as

14
the punitive damages award and REMAND the case to the District Court for further

consideration of the amount of the punitive damages award, consistent with these principles.

well as the legislature’s judgment as to appropriate punishment for similar conduct--if any
is comparable--in the way of criminal fines. See Gore, 517 U.S. at 583-84. In any event,
some consideration and discussion as to the propriety of the amount is in order, given the
relatively large award in this case.

15