Remittitur — the R-word — is one of the most dreaded terms in Black’s Legal Dictionary.
This week, the Second Circuit Court of Appeals dropped an R-bomb in an excessive force lawsuit, reducing a punitive damages award by $200,000. The reason? The defendant cop’s behavior was reprehensible, but not reprehensible enough to warrant a $300,000 punitive damages award.
James Payne is a decorated Vietnam War veteran who suffers from severe post-traumatic stress disorder (PTSD) as a result of his military service.
While at a hospital emergency room in 2007, Officers Brandon Jones and John Abel arrested Payne -- who was combative and disoriented -- under a New York law that authorizes the arrest of a person who appears to be mentally ill and acts in a manner likely to result in serious harm.
Payne was transported by ambulance to St. Elizabeth Medical Center, the nearby hospital assigned to receive such arrestees. As Jones was placing Payne on the bed at St. Elizabeth, he noticed Payne's Marine Corps tattoos and allegedly said "Marines are pussies." In response, Payne kicked Jones in the groin area. Jones reacted by punching Payne in the face and neck 7 to 10 times, and kneeing him in the back several times. The attack lasted 30 seconds or less.
Payne sued Jones, alleging excessive force under the Fourteenth Amendment and state battery claims. The jury found in Payne's favor, and awarded him $60,000 in compensatory damages and $300,000 in punitive damages.
Jones argued that the damages were excessive and should be set aside. The district court upheld the judgment, but the Second Circuit Court of Appeals ruled that the award was excessive. The appellate court offered Payne the option of a new trial on punitive damages or a reduced award of $100,000.
Even though there is no such thing as a correct amount of punitive damages, the legal system has an obligation to ensure that such awards for intangibles be fair, reasonable, predictable, and proportionate. In BMW of North America, Inc. v. Gore, the Supreme Court identified three guideposts for determining whether a punitive damages award is reasonable:
- Degree of reprehensibility of the defendant's conduct,
- Relationship of the punitive damages to the compensatory damages, and
- Criminal and civil penalties imposed by the state's law for the misconduct in question.
The Gore decision described the degree of reprehensibility of the defendant's misconduct as "perhaps the most important indicium of the reasonableness."
Here, the court decided that remittitur was appropriate because Jones' behavior, while reprehensible, was provoked. The panel wrote, "Jones became violent only after Payne kicked him in the groin. While it is true that Payne's kick in Jones' groin was in response to Jones' inappropriate verbal taunt, it was nonetheless a kick in the groin."
Like Jones, the Second Circuit is sensitive groin kicks. Was remittitur as outrageous a reaction as the beatdown Jones gave Payne?