Andrews v. Neer

• Decision Date: 16 November 2000
• Docket Number: Nos. 99-4063,99-4065,s. 99-4063
• Citation: 253 F.3d 1052
• Parties: (8th Cir. 2001) BRANDY ANDREWS, APPELLEE, v. DAVID C. NEER, ROY MIRELES, KIRK FORGY, STEVEN LANCE NEWMAN, RAYMOND MARION BAKER, DAVID CHILDS, RALPH ANDERSON, AARON COLE, DAVID SUMMERS, PAUL HARPER, APPELLANTS. BRANDY ANDREWS, APPELLANT, v. DAVID C. NEER, ROY MIRELES, KIRK FORGY, STEVEN LANCE NEWMAN, RAYMOND MARION BAKER, DAVID CHILDS, RALPH ANDERSON, AARON COLE, DAVID SUMMERS, PAUL HARPER, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1052

253 F.3d 1052 (8th Cir. 2001)

BRANDY ANDREWS, APPELLEE, v. DAVID C. NEER, ROY MIRELES, KIRK FORGY, STEVEN LANCE NEWMAN, RAYMOND MARION BAKER, DAVID CHILDS, RALPH ANDERSON, AARON COLE, DAVID SUMMERS, PAUL HARPER, APPELLANTS.

BRANDY ANDREWS, APPELLANT, v. DAVID C. NEER, ROY MIRELES, KIRK FORGY, STEVEN LANCE NEWMAN, RAYMOND MARION BAKER, DAVID CHILDS, RALPH ANDERSON, AARON COLE, DAVID SUMMERS, PAUL HARPER, APPELLEES.

Nos. 99-4063, 99-4065

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: November 16, 2000

Filed: June 7, 2001

Appeals from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Bowman, Fagg, and Bye, Circuit Judges.

Bowman, Circuit Judge.

Brandy Andrews (Andrews) brought this 42 U.S.C. § 1983 action against a broad array of defendants for damages arising from the death of her father, Bobby Andrews, while he was an involuntary patient at Fulton State Hospital in Fulton, Missouri. Her case proceeded to trial and judgment in her favor only against the defendants who are here the appellants. The claim tried was that these defendants--all security aides at the hospital--used constitutionally excessive force during the takedown and restraint that resulted in Bobby Andrews's death. The jury found these defendants liable and awarded damages to Andrews.

The defendant security aides, namely, David Neer, Roy Mireles, Kirk Forgy, Lance Newman, Raymond Baker, David Childs, Ralph Anderson, Aaron Cole, David Summers, and Paul Harper (hereinafter appellants) appeal from the District Court's partial denial of their motion for judgment as a matter of law or, in the alternative, a new trial. Appellants argue that Andrews lacks standing in her individual capacity to assert any claim under § 1983, that the District Court improperly instructed the jury, that the court abused its discretion by awarding punitive damages and failing to vacate the general punitive damages award after vacating Andrews's individual damages award, and that the jury rendered a verdict against the weight of the evidence. Appellants also allege error in numerous evidentiary rulings.

Andrews cross-appeals, challenging the District Court's adverse grant of judgment as a matter of law as to her claim under § 1983 for damages based on her own injuries. We affirm on the cross-appeal. On the appeal, we vacate the judgment and remand to the District Court for a new trial.

I.

The state of Missouri committed Bobby Andrews to Fulton State Hospital in 1983 after he was found not guilty of murder by reason of insanity. On the evening of April 24, 1995, security aide Raymond Baker was distributing cigarettes in the ward where Bobby Andrews resided. Bobby Andrews wished to purchase a cigarette, but lacked enough tokens. When Baker refused to give him the cigarette, he became agitated and angry, backing into a corner and swinging a book at those who tried to approach him and calm him down. Baker pushed the emergency code button, calling an "Orange Code" to which other aides at the hospital responded. The group of security aides responding to the Orange Code included all of the other appellants.

The appellants surrounded Bobby Andrews and pulled him to the floor. Once he was on the floor, various members of the Orange Code team grabbed each of Bobby Andrews's limbs to subdue and restrain him until they could apply leather cuff restraints. During the restraint, which lasted from five to possibly twenty minutes, various code team members were in a position to compress Andrews's neck and chest and thus impede his ability to breathe.¹ Paul Harper, one of the last aides to arrive at the scene, testified that so many aides surrounded Bobby Andrews that Harper could not see him. Also, despite testimony that Bobby Andrews, a large man who was difficult to subdue, strenuously fought to escape the hold of the security aides, almost all the witnesses to the takedown testified that they do not remember him making any noise after he hit the floor.

Once the code team had the leather restraints in place, the team got up off Bobby Andrews and attempted to move him to a seclusion room. At that point, team members testified they first noticed that he had stopped moving, his lips were blue, and he did not appear to be breathing. Despite efforts to revive him, he died after being transported to the local community hospital.

Bobby Andrews's autopsy revealed a small amount of blood in the tissue surrounding the thyroid gland and distention of the veins in his eyes and cranium. The pathologist interpreted these findings as consistent with compression of the airway during the takedown. An expert witness for the plaintiff concurred.

Andrews's theory of the case was that the security aides used a choke hold or otherwise compressed Bobby Andrews's airway during the takedown, and as a result he suffered a fatal cardiac arrhythmia caused by a lack of oxygen. She sought damages on behalf of her father for the injury he suffered as a result of the appellants' allegedly unconstitutional use of force. She also requested damages for her own injuries as authorized by the Missouri wrongful death statute. Mo. Rev. Stat. § 537.080-.090 (1994). Finally, she requested punitive damages. The jury returned a verdict in favor of Andrews, awarding $250,000 to Andrews for injuries suffered by her father, $150,000 to Andrews for her own injuries, and $180,000 in punitive damages. The District Court subsequently vacated the award of damages to Andrews for her own injuries, holding that the compensable injuries were limited to those suffered by her father and that § 1983 did not incorporate state wrongful death remedies that would allow Andrews to recover damages for her own injuries.

II.

Appellants argue the District Court erred when it held that Andrews has standing to pursue a § 1983 action to recover damages for injuries suffered by her father. Under § 1983, state actors who infringe the constitutional rights of an individual are liable "to the party injured." 42 U.S.C. § 1983 (1994 & Supp. IV 1998). The appropriate plaintiff is obvious when a party survives his injuries, but the language of § 1983 makes no mention of permissible plaintiffs when the injured party dies. Under 42 U.S.C. § 1988(a) (1994), in this situation we look to state law to determine who is a proper plaintiff, as long as state law is not inconsistent with the Constitution or federal law. See Robertson v. Wegmann, 436 U.S. 584, 588-90 (1978). Generally state survival statutes govern survival of personal injury actions. Appellants argue that Andrews cannot pursue a § 1983 action in her individual capacity because the Missouri survival statute, Mo. Rev. Stat. § 537.020 (1994), requires that all suits for personal injury be brought by the personal representative of the decedent's estate, and Andrews has not been so appointed. We hold, however, that under Missouri law the Missouri survival statute is inapplicable in the current case. As the District Court correctly determined, the Missouri wrongful death statute applies and provides Andrews standing to pursue a § 1983 action on behalf of Bobby Andrews.

The Missouri survival statute provides that "[c]auses of action for personal injuries, other than those resulting in death, . . . shall not abate by reason of [the injured party's] death" and it allows the action to survive "to the personal representative of such injured party." Mo. Rev. Stat. § 537.020(1).² The statute unambiguously authorizes the survival of claims that arise from non-fatal personal injuries where the injured party later dies of unrelated causes. Such claims must be pursued by the personal representative of the decedent's estate. On the other hand, the statute's language clearly limits its application to cases where the personal injury did not cause the decedent's death. See id. ("Causes of action for personal injuries, other than those resulting in death, . . . shall not abate by reason of his death . . . .") (emphasis added); Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 685 (Mo. 1992) ("The language of the survivorship statute and the wrongful death statute are mutually antagonistic. The survivorship statute applies when the injury alleged did not cause death, and the wrongful death statute applies when the injury did cause death."). In the present case, even if Andrews had been appointed as the personal representative of her deceased father, she would not have standing under the Missouri survival statute to pursue a § 1983 claim for injuries caused by the appellants to Bobby Andrews. Those injuries resulted in his death and, consequently, the Missouri survival statute does not apply.³

It is the Missouri wrongful death statute that addresses the survival of injury claims that result in death. See Wollen, 828 S.W.2d at 685. The statute provides that

[w]henever the death of a person results from any act . . . which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who . . . would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By the spouse or children or the surviving lineal descendants. . . .

Mo. Rev. Stat. § 537.080. The Missouri Supreme Court has declared the wrongful death statute to be the sole source of a cause of action in Missouri where the injuries sustained by the decedent caused the decedent's death. In Sullivan v. Carlisle, the court warned that the wrongful death statute "should not be confused with the so-called 'survival statutes,' which ensure that pre-existing claims will not abate upon the death of the plaintiff or defendant." 851 S.W.2d 510, 514 & n.6 (Mo. 1993) (describing section 587.808 as a combined "death and survival" statute). The Missouri Supreme Court has made it plain that in ca...