Alla v.

979 F.Supp.2d 349

John Gad ALLA, Plaintiff,

v.New York City Police Department Officer (“P.O.”) Brian VERKAY (Shield No. 2055), P.O. Tanisha Dorson (Shield No. 03481), Sergeant (“Sgt.”) Domagoj Anticev (Shield No. 14), P.O. Ansari Kalil (Shield No. 11189), Defendants.

No. 11–CV–892 (FB)(RLM).

United States District Court, E.D. New York.

Oct. 30, 2013.

Michael L. Spiegel, Esq., New York, NY, for Plaintiff.

Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, New York, NY, By: Raju Sundaran, Esq., Senior Counsel, for Defendants.

MEMORANDUM AND ORDER

BLOCK, Senior District Judge:

After an eight-day trial, the jury in this § 1983 action found that police officer Brian Verkay (“Verkay”) used excessive force in the course of arresting John Gad Alla (“Gad Alla”) for a crime he did not commit. The jury further found that Verkay and fellow officer Tanisha Dorson (“Dorson”) subsequently falsely arrested Gad Alla for resisting arrest and obstructing governmental administration.

The jury awarded a total of $2.5 million in damages. On the excessive force claim, it awarded $1.9 million against Verkay: $1.5 million in compensatory economic damages, $250,000 in compensatory non-economic damages and $150,000 in punitive damages. On the false arrest claim, it awarded $300,000 in compensatory damages against Verkay and Dorson, jointly and severally, and $150,000 in punitive damages against each officer, for a total of $600,000. ¹

Now before the Court are the parties' various post-trial motions. Gad Alla moves for judgment as a matter of law pursuant to Federal Rule 50(b), arguing that there was no probable cause for his initial arrest.

As for the defendants, Verkay and Dorson move for judgment as a matter of law under Rule 50(b) or, in the alterative, for a new trial under Rule 59. Both Dorson and Verkay argue that they are entitled to qualified immunity, while Dorson alone argues that she was not personally involved in the second arrest. With respect to damages on the false arrest claim, Dorson and Verkay argue that the award for compensatory damages should be reduced, and that the award for punitive damages should be vacated or, in the alternative, reduced. With respect to damages on the excessive force claim, Verkay argues that each element of the award should be vacated or, in the alternative, reduced.

For the reasons set forth below, Gad Alla's motion is denied. Defendants' motions are granted in part and denied in part. More specifically, the Court orders a new trial limited to economic damages on the excessive force claim. The remainder of the jury's award—totaling $1 million—stands.

TABLE OF CONTENTS

I

A.

Facts Relating to Liability

356

1.

Overview

356

2.

The 911 Call

356

3.

The Police Response

356

4.

The First Arrest

357

a.

Gad Alla

357

b.

Anticev and Kalil

358

c.

Dorson

358

d.

Verkay

359

e.

Summary

359

5.

The Show–Up Identification

360

6.

Police Reports of the Incident

360

7.

The Second Arrest

360

B.

Facts Relating to Damages

361

1.

Gad Alla's Background

361

2.

Immediate Aftermath of the Punch and Arrest

361

3.

Long–Term Impact

362

a.

On Gad Alla's Mental and Physical Health

362

b.

On Gad Alla's Employment Prospects

364

4.

Expert Testimony

364

a.

Oral Maxillofacial Experts

364

b.

Psychology and Psychiatry Experts

365

c.

Life–Care Plan Expert

366

d.

Economic Expert

366

II

A.

Probable Cause for the First Arrest

367

B.

Dorson's Participation in the Second Arrest

368

C.

Qualified Immunity

368

1.

Excessive Force (Verkay)

369

2.

False Arrest (Verkay and Dorson)

371

D.

Damages

371

1.

False Arrest: Compensatory Damages

371

2.

False Arrest: Punitive Damages

372

a.

Vacatur

372

b.

Reduction

373

3.

Excessive Force: Compensatory Damages

375

a.

Economic Damages

375

b.

Non–Economic Damages

377

4.

Excessive Force: Punitive Damages

378

a.

Vacatur

378

b.

Reduction

378

III

Conclusion

379

I

Because the nature of these motions requires a full appreciation of the underlying facts, they must be explored in some detail.

A. Facts Relating to Liability1. Overview

Although many facts were disputed at trial, certain matters are not in dispute. Gad Alla was initially arrested for assaulting someone who lived in his building. In the course of executing the arrest, Verkay punched Gad Alla in the face. Gad Alla was released at the scene after the assault victim stated that Gad Alla was not the perpetrator. However, Verkay later returned to the scene with Dorson to arrest Gad Alla for resisting arrest and obstructing governmental administration. Gad Alla, severely injured from the earlier incident, was held in custody for roughly nine hours before being released.

2. The 911 Call

In September 2010, Gad Alla was sharing a bedroom on the second floor of a Brooklyn residence with his friend Said Said. Other bedrooms were occupied by Tamer Botros (“Botros”) and Wael Beshay (“Beshay”). The second-floor occupants shared a living area, kitchen and bathroom; all were Egyptian men.

On the night of September 10th, Gad Alla was sitting in his room when he heard Botros yelling. Opening the bedroom door, Gad Alla saw Botros and Beshay fighting in the kitchen:

So Wael [i.e., Beshay] had this knife and it was hidden in his hand, like that, so he actually tried to attack him [i.e., Botros]. The guy ran, and my door was opened, that was the only door opened in front of him, so he jumped on ... my roommate's bed. He jumped on the bed, and this guy's after him, and he actually hit him with the back of the knife on his head. I was ascared [sic]. I was standing at a distance just a few feet I'm like please, for God's sake, please for God's sake, don't do it, don't do it. But I couldn't interfere, this guy is huge, I can't really do anything about it. And then I start seeing the blood running all over his face.

The guy went back to his room and the bleeding guy ran downstairs, so I put on my slippers and I ran after him and I—just wait for me, I'm going to take you to the hospital, and he was happy, I don't know why. Apparently he meant to do something to him, and then he grabbed his phone and he just walked away, so I assumed he called 911. It just happened, all this in probably two minutes, the whole thing, so I walked up to my room and I just sat there.

Trial Tr. 57–58.

Gad Alla's hunch that Botros had called 911 was correct. At 10:57 pm, a New York Police Department (“NYPD”) dispatcher reported the call over police radio, stating that a man had been stabbed by an Egyptian male wearing a white t-shirt.

3. The Police Response

Sergeant Domagoj Anticev (“Anticev”) and Office Ansari Kalil (“Kalil”) were the first to respond. They met Botros, who was bleeding from his face, outside the residence. Botros stated that he had been stabbed by a male Egyptian who was wearing a white t-shirt and was inside the residence. Anticev and Kalil then went into the building.

Verkay and Dorson arrived at the scene shortly thereafter. Botros, still outside, told Verkay that his attacker “was an Egyptian man wearing a white shirt, that he was on the second floor and that the cops were with him.” Trial Tr. 1026. Verkay ran inside after hearing someone repeatedly shouting “show me your hands.” Trial Tr. 1025.

4. The First Arrest

It is at this point that the participants' stories diverge. Each witness's version of events is presented in turn.

a. Gad Alla

Gad Alla testified that he was in his room when the officers entered the residence:

I sat there on my bed and I had my laptop with me. And then just a few minutes, you know, I heard this scream, “police,” “police.” So I stood up, and then in a second I heard it in front of my room. They're like, “police, open the doors,” “open the doors.”

So I opened the door for my room and then there is a gun, right there, to my left, there is an officer with a gun, and then there are a bunch of them over there and everybody is saying something, so I'm just focused on this gun right there in my face. “Put your hands up,” so I do this.

Trial Tr. 59. Gad Alla identified Anticev as the officer holding the gun.

Gad Alla testified to what happened next:

And then two of them grab my arms and then they push me backwards in the room. It was a coffee table down there, and then somehow I came down on the coffee table chest first, that's where I hit my chest at that time. I was only concerned about my arms. As you can see, I have very skinny arms. So I was just randomly going, “do whatever you want, but don't hurt me,” “do whatever you want, but don't hurt me.”

Trial Tr. 60. Gad Alla explained that the side of the coffee table broke and “came down on the floor.” Trial Tr. 70.

Gad Alla's narrative continues with the following description:

After I came on the table, then on the floor, and I remember that feeling because the carpet was not very clean in that room, so I remember my cheek was on that carpet. And then all of a sudden they lift me up and then on the bed, which is to the left, they put me down pressing on me. Somebody, I remember his hand, still in my back. He was just pressing so hard, and then my arms behind me.

Trial Tr. 60.

According to Gad Alla, he was not handcuffed on the carpet, but “[t]hey were holding my hands behind my back.” Trial Tr. 71. When asked how many officers were holding him down, he stated: “I have no idea. I was down on my face, so I don't really know. But I remember somebody had [a] very strong fist right in the middle of my back and pressing.” Trial Tr. 76. He also testified that “[t]here was a police officer next to me on the bed, but I don't really remember who was that at that time.” Trial Tr. 76. Gad Alla, who is small in stature, testified that he was not “resist[ing] them in any way.” Trial Tr. 71; see also id. at 72 (“They are like giant cops, four or five of them maybe in my room, how could I resist all of that?”).

Gad Alla was placed face-down on a bed and handcuffed. He testified that he was punched at that point:

I was down on my face this way with my hands behind me. And then I'm looking out of the side of my eye, I see the door of the room, and I just saw legs up to maybe the...