600 F.3d 819 (7th Cir. 2010), 08-3736, Fox v. Hayes

Docket Nº:08-3736.
Citation:600 F.3d 819
Opinion Judge:EVANS, Circuit Judge.
Party Name:Kevin FOX and Melissa Fox, Plaintiffs-Appellees, v. Edward HAYES, Michael Guilfoyle, Scott Swearengen, Brad Wachtl, and Will County, Defendants-Appellants, v. American Alternative Insurance Corporation and Essex Insurance Company, Intervenors-Appellants.
Attorney:Kathleen T. Zellner, Attorney (argued), Kathleen Zellner and Associates, P.C., Oak Brook, IL, Michael W. Rathsack, Chicago, IL, for Plaintiffs-Appellees. James R. Troupis, Attorney (argued), Michael Best & Friedrich, Madison, WI, for Defendants-Appellants. Robert J. Bates, Jr., Bates & Carey LLP,...
Judge Panel:Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.
Case Date:April 07, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 819

600 F.3d 819 (7th Cir. 2010)

Kevin FOX and Melissa Fox, Plaintiffs-Appellees,

v.

Edward HAYES, Michael Guilfoyle, Scott Swearengen, Brad Wachtl, and Will County, Defendants-Appellants,

v.

American Alternative Insurance Corporation and Essex Insurance Company, Intervenors-Appellants.

No. 08-3736.

United States Court of Appeals, Seventh Circuit.

April 7, 2010

Argued Sept. 9, 2009.

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Kathleen T. Zellner, Attorney (argued), Kathleen Zellner and Associates, P.C., Oak Brook, IL, Michael W. Rathsack, Chicago, IL, for Plaintiffs-Appellees.

James R. Troupis, Attorney (argued), Michael Best & Friedrich, Madison, WI, for Defendants-Appellants.

Robert J. Bates, Jr., Bates & Carey LLP, Edward M. Kay, Clausen Miller, Chicago, IL, for Intervenors-Appellants.

Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.

EVANS, Circuit Judge.

The central event underlying this case evokes what is surely every parent's most visceral fear. In the early morning hours of June 6, 2004, three-year-old Riley Fox was taken from her home in Wilmington, Illinois. She was bound with duct tape, sexually assaulted, and drowned in a creek. Riley's parents, Kevin and Melissa Fox, claim that in the midst of their efforts to cope with this trauma, local detectives subjected them to a whole new nightmare. According to the Foxes, the defendants framed Kevin for Riley's murder, coerced him until he agreed to a " confession" that the detectives concocted, and caused him to be jailed (and facing the death penalty) on a charge of first-degree murder. The prosecutor eventually dropped the charge after DNA testing excluded Kevin as the donor of DNA found on Riley's body. In the meantime, Kevin spent eight months in jail, separated from his grieving wife and seven-year-old son, while his reputation in the small community where they lived was thoroughly smeared. To this day, no one else has been charged with Riley's murder.

Almost immediately after his arrest, Kevin and Melissa brought this multi-count, multi-party lawsuit under 42 U.S.C. § 1983 and Illinois law, claiming that Will County detectives Edward Hayes, Michael Guilfoyle, Scott Swearengen, Brad Wachtl, John Ruettiger (who died before the trial), and several other parties who have since settled or been dismissed from the suit, arrested and prosecuted Kevin without probable cause and in violation of his due process rights. The complaint also includes counts of conspiracy, false imprisonment, intentional infliction of emotional distress (IIED), and (for Melissa) loss of consortium. It sought both compensatory and punitive damages. Three years and multiple dispositive motions later, the case went to trial. After six weeks, the jury returned verdicts in favor of the Foxes against the five named defendants on all but the conspiracy and false imprisonment claims.

In its assessment of damages, the jury's verdict in favor of Kevin looked like this:

Defendant Due Process False Arrest Malicious Prosecution IIED Punitive Damages Totals
Hayes 500000 500000 300000 500000 1500000 3300000
Swearengen 500000 500000 300000 500000 1500000 3300000
Guilfoyle 300000 500000 0 200000 400000 1400000
Wachtl 300000 100000 0 200000 100000 700000
Estate of Ruettiger 100000 100000 0 200000 200000 600000
Total 1700000 1700000 600000 1600000 3700000 9300000

Page 826 On Melissa's claims the jury found:

Defendant Loss of Consortium IIED Punitive Damages Totals
Hayes 1000000 1000000 1000000 3000000
Swearengen 1000000 1000000 2000000
Guilfoyle 300000 200000 500000
Wachtl 300000 200000 500000
Estate of Ruettiger 100000 100000 200000
Totals 2700000 1000000 2500000 6200000

The grand total of the damages awarded to the Foxes was $15.5 million. On motions after verdict, the district court struck all of the punitive damages awarded to Melissa ($2.5 million) and the punitive damages assessed against Wachtl ($100,000) on Kevin's claims. In addition, the district court entered an order memorializing the parties' agreement that the judgment against the Estate of John Ruettiger was satisfied and the case against it was dismissed. All of this has left the remaining tab at $12,200,000. It is that sum that is in play as the four named defendants-Hayes, Swearengen, Guilfoyle, and Wachtl-appeal. Over the course of the long trial, the defendants and the Foxes presented drastically different versions of the events surrounding Kevin's arrest and prosecution. In broad strokes, this is the defendants' version. From day one, Kevin's behavior raised red flags that made the defendants suspect he was involved in Riley's death. After investigating for four months, Kevin was their only suspect. In October they brought Kevin in for questioning, hoping that he could resolve their concerns. Instead, he made statements that further heightened their suspicions. When Kevin nonetheless denied involvement, the detectives suggested he take a polygraph examination. He did so voluntarily and failed. Their suspicions further raised, the defendants questioned him for several more hours, until Kevin admitted that he accidentally killed Riley. Kevin explained that on the night of Riley's death he accidentally hit her in the head with the bathroom door. Thinking he had killed her, he panicked. Instead of calling the police or an ambulance or a family member, Kevin bound Riley with duct tape to make it look like a murder and left her in the creek, where she drowned. The defendants had Kevin memorialize his statement on video and then arrested him for the murder of his daughter. Because at this stage we review the evidence in the light most favorable to the Foxes, see Staub v. Proctor Hosp., 560 F.3d 647, 651 (7th Cir.2009), what follows are more particular details of their version of these events. In June 2004, Kevin and Melissa were living with their children, Riley and six-year-old Tyler, in Wilmington, a small town located in a rural area about 60 miles southwest of Chicago. Page 827 Kevin was a union painter and Melissa stayed home with the kids. Kevin took pride in his abilities as a dad, and he and Riley were particularly close. Melissa and Kevin both grew up in Wilmington and had an extended network of family and friends in town. Wilmington is the kind of place where crime is rare and people regularly leave their homes and cars unlocked. The Foxes were no exception. They often left their front door unlocked, and although the lock on their back door had been broken for months, they never bothered to fix it. Instead, they kept a stack of laundry baskets in front of the back door to keep it closed. On June 5, 2004, a Saturday, Melissa was in Chicago with some friends to participate in a two-day walk to raise money for breast cancer research. Kevin took care of the children that afternoon and then dropped them off at the Wilmington home of Melissa's mother, who had agreed to watch the kids while he attended a concert in Chicago with Melissa's brother, Tony Rossi. Kevin and Tony drove the Foxes' Ford Escape to the concert, where Kevin drank about six beers. After the concert was over, around 10:30 p.m., Kevin and Tony went to a local restaurant with another friend. Kevin was sober when he and Tony left for Wilmington an hour later. Around 12:50 a.m. they arrived back at the Rossis' house, where Tyler and Riley were sleeping in the living room. Kevin wanted to bring the children home so he could get them up early the next morning and travel to Chicago in time to see Melissa finish her participation in the walk. Apparently the kids were looking forward to the trip to Chicago: they had gone to an art supply store with their father that Saturday afternoon, where he purchased three poster boards and other supplies; they went home and made signs to hold up while watching their mother finish the walk. At the Rossi home later that night, Tony helped Kevin get the children into the car, and Kevin drove them home. Before leaving for Chicago, Melissa had left the children's bed sheets in the dryer. When Kevin brought the kids in that night he was too tired to make their beds, so he put Tyler to sleep on an ottoman and Riley on the couch. They were within a few feet of each other in the living room. This wasn't an uncommon sleeping arrangement-the Foxes sometimes let the children fall asleep watching TV in the living room. After the children were sleeping, Kevin went outside and smoked a cigarette on the porch. He returned inside, watched TV in his bedroom, turned his fan on high, and fell asleep around 2:30 a.m. Kevin awoke around 7:50 the next morning when Tyler came into his room and told him that Riley was gone. The kids often played hide-and-seek, so Kevin didn't panic. He went to the living room, where he saw Riley's blanket still on the couch and the front door open (he assumed Tyler opened it looking for Riley). He started calling Riley's name and looked carefully in her room, which was overrun with toys and had ample hiding spots. After searching the bedroom, he spent several more minutes searching the children's toy room. He then went back to the living room and kitchen and looked out the back window to see if she was in the backyard. She wasn't. After about 15 minutes, his sense of alarm growing, Kevin started walking to his neighbor's house, but he decided it was too early to ring the doorbell. Instead, he returned home and called the neighbor on the telephone. They hadn't seen Riley. Kevin started...

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