Augustin v. Jablonsky

• Decision Date: 19 October 2011
• Docket Number: CV 99–4238 (DRH)(ARL).,Nos. CV 99–3126 (DRH)(ARL),CV 99–2844 (DRH)(ARL),s. CV 99–3126 (DRH)(ARL)
• Citation: 819 F.Supp.2d 153
• Parties: Gardy AUGUSTIN, Heidi Kane, Mary Katherine Pugliese, Gregg Wills, Steven Roth, Oscar Avelar, Ralph Diliello, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. Joseph JABLONSKY, individually and as Nassau County Sheriff, John and Jane Does No. 1–100, and County of Nassau, a municipal corporation, Defendants.Francis O'Day and Stuart Moskowitz, individually and on behalf of all others similarly situated, Plaintiffs, v. Nassau County, Nassau County Sheriff's Department, Division of Correction, Joseph Jablonsky, Nassau County Sheriff, and Jane/John Does Nos. 1–200, Defendants.John Iaffaldano, individually and on behalf of all others similarly situated, Plaintiff, v. The County of Nassau, The Nassau County Sheriff's Department, Division of Corrections, and Joseph P. Jablonsky, Sheriff of Nassau County, Defendants.
• Court: U.S. District Court — Eastern District of New York

819 F.Supp.2d 153

Gardy AUGUSTIN, Heidi Kane, Mary Katherine Pugliese, Gregg Wills, Steven Roth, Oscar Avelar, Ralph Diliello, et al., individually and on behalf of all others similarly situated, Plaintiffs,

v.Joseph JABLONSKY, individually and as Nassau County Sheriff, John and Jane Does No. 1–100, and County of Nassau, a municipal corporation, Defendants.Francis O'Day and Stuart Moskowitz, individually and on behalf of all others similarly situated, Plaintiffs,

v.Nassau County, Nassau County Sheriff's Department, Division of Correction, Joseph Jablonsky, Nassau County Sheriff, and Jane/John Does Nos. 1–200, Defendants.John Iaffaldano, individually and on behalf of all others similarly situated, Plaintiff,

v.The County of Nassau, The Nassau County Sheriff's Department, Division of Corrections, and Joseph P. Jablonsky, Sheriff of Nassau County, Defendants.

Nos. CV 99–3126 (DRH)(ARL)

CV 99–2844 (DRH)(ARL)

CV 99–4238 (DRH)(ARL).

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

Oct. 19, 2011.

Robert L. Herbst, Esq., Oren Giskan, Esq., Giskan Solotaroff Anderson & Stewart LLP, Vera M. Scanlon, Esq., Beldock Levine & Hoffman LLP, Matthew D. Brinckerhoff, Esq., Mariann Wang, Esq., Emery Celli Brinckerhoff & Abady LLP, Jeffrey G. Smith, Esq., Martin Restituyo, Esq., Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY, for Plaintiffs.

Dennis J. Saffron, Esq., Liora Ben–Sorek, Esq., John Ciampoli, Nassau County Attorney, Mineola, NY, for Defendants.

HURLEY, Senior District Judge:

Presently before the Court is a motion by defendants seeking “to decertify the class going forward now that the issue of common general damages upon which the Court based class certification has been resolved.” (Defs.' Mem. at 1.) ¹ Plaintiffs oppose the application, asserting that the Court can (and should) compensate class members for damages stemming from “garden-variety emotional distress, shame and humiliation that flow naturally from being unlawfully strip searched,” and that “these general damages for garden-variety emotional distress, shame and humiliation should be determined and awarded on a class-wide basis in a single trial in this class action as soon as possible.” (Pls.' Opp'n at 5.) For the reasons that follow, defendants' application is granted.

BACKGROUND

The background of this action is set forth in the prior decisions of this Court, familiarity with which is presumed. The Court will partially reiterate an abbreviated history in order to provide context for the Court's analysis and rulings, infra.

Class Certification

These consolidated actions were commenced in 1999 seeking damages due to the blanket policy of the Nassau County Correctional Center of strip searching newly admitted individuals arrested for misdemeanors or non-criminal offenses in Nassau County. Extensive pretrial motion practice ensued, including plaintiffs' numerous attempts to achieve class certification. In response thereto, defendants conceded liability. Based on that concession, this Court deleted liability from the certification analysis and denied class treatment. On appeal, the Second Circuit reversed and directed this Court “to certify a class on the issue of liability ... and consider anew whether to certify a class as to damages as well.” In re Nassau County Strip Search Cases, 461 F.3d 219, 231 (2d Cir.2006). Accordingly, the Court certified a class as to liability and entered summary judgment on liability in favor of the class and each of its members. (Jan. 16, 2007 Order at 2.) After the Court sought input from the parties concerning damages certification, plaintiffs filed an application to certify the class as to plaintiffs' entire claims, i.e., to extend class certification to include damages.

March 27, 2008 Memorandum and Order

In a Memorandum and Order dated March 27, 2008, 2008 WL 850268, the Court addressed the question of whether a damages class could be certified pursuant to Rule 23(b)(3). (Mar. 27, 2008 Mem. & Order at 4.) Having previously determined that Rule 23(a)'s requirements of numerosity, commonality, typicality and adequacy had been met in this case, the Court considered whether plaintiffs sufficiently demonstrated both (1) that the damages questions of law or fact common to the members of the class predominated over any damages issues affecting only individual members; and (2) that a class action was superior to other available methods for the fair and efficient adjudication of the damages controversy. ( Id.) Plaintiffs argued, and the Court agreed, that an injury to human dignity was necessarily entailed in being strip searched and thus was common to each member of the class as to its cause and the resulting general, or presumed—as distinct from the special—damages sustained. ( Id. at 6.)

Over the objection of defendants, the Court, relying heavily by analogy on the Second Circuit's decision in Kerman v. City of New York, 374 F.3d 93 (2d Cir.2004),² found that the issue of general damages due to the asserted injury to human dignity predominated ( Mar. 27, 2008 Mem. & Order at 7–11), and concluded that where, as here, “class members were aggrieved by a single, admittedly unlawful policy [resulting in] a strong commonality between the strip search violation and the harm,” there was “no reason [to believe] that a jury ... could not determine an amount of general damages awardable to each member of the class.” ( Id. at 12.) That comment, however, was coupled with the caveat that “care would have to be taken to ensure that the amount awarded for general damages excludes all elements of special damages that individual class member[s] might [later] pursue.” ( Id. at 12–13 (emphasis added).) The Court noted, in closing, that “Plaintiffs are not asking this Court to select a particular damages model or to certify any subclasses for special damages as to do so would be ‘premature.’ ” ( Id. at 13–14 (emphasis added).)

March 16, 2009 Memorandum and Order

Subsequently, the Court held a conference in advance of the upcoming trial for general damages and, by Memorandum and Order dated March 16, 2009, 2009 WL 706252, addressed several issues that arose during that conference. In particular, the issue of whether the trial witnesses would be permitted to testify not only “as to the details of the strip search that he or she experienced[,] ... but also any concomitant feelings of humiliation, embarrassment or other reaction experienced by the witness as a result of the process.” (Mar. 16, 2009 Mem. & Order at 2.) The Court recognized that if trial witnesses “were permitted to testify concerning the humiliation and other effects” of the strip search that he or she individually experienced as distinct from those which may be presumed to have been inflicted on all persons so victimized, “the amount determined by the jury would be less likely to be representative of the general damage sustained by each member of the class.” ( Id. at 5–6.) The reason for that is, “if provided a choice, plaintiffs' counsel surely, and legitimately so, would call to the stand those plaintiffs among the 17,000 plus class members they believed to be the most severely impacted from being strip searched.” ( Id. at 5–6.) The Court reasoned that “excluding such specific impact evidence from this part of the proceeding” would “essentially eliminate[ ]” the “problem of a non-representative per plaintiff amount being returned by the jury.” ( Id. at 6.) Accordingly, each party was permitted to “call up to ten fact witnesses from the class ... [to] testify solely concerning the details of the search without any information concerning the effect that the search had upon them” personally. ( Id.)

The Court continued that “[t]his line of demarcation as to the parameters of permissible testimony will not negatively effect any individual plaintiff because to the extent such individual did sustain humiliation, embarrassment or emotional distress [beyond those presumed from being unlawfully strip searched], those items may be pursued during the special damages portion of the proceeding which will be held before another jury.” ( Id. at 7.) The March 16, 2009 decision concluded with the observation that the Court had “thus far only addressed general damage class certification; at the conclusion of this phase of the proceeding, the court and the parties will discuss what further damage subclasses should be certified, if any, and how the remainder of the case will be resolved.” ( Id. at 7 n. 2.)

The Award of General Damages

The parties subsequently waived the right to a jury trial and submitted the issue of a general damages determination to the Court. A bench trial was held over eleven days, ending on December 16, 2009, with all post-trial submissions being filed by April 14, 2010. By decision dated September 22, 2010, 742 F.Supp.2d 304, general damages in the amount of $500 per strip search were awarded,³ coupled with the observation that “the special damages sustained by class members is a subject for another day.” ( Sept. 22, 2010 Mem. & Order at 332.)

On October 2, 2010, a status conference was held to discuss, inter alia, “how to handle the second phase of the case, the special damages.” (Tr. of Oct. 1, 2010 Status Conf. (“Tr.”) at 21.) Specifically, the Court sought input from the parties regarding “whether the special damage part of the case should be bifurcated between what the attorneys call garden-variety ... [and] some heightened type of special damage.” ( Id.) Plaintiffs expressed their view that for the “second phase” “there ought to be a single trial, either before a Judge or a jury, to try to fix an aggregate class award for the garden-variety emotional distress damage.” ( Id. at 34.) Plaintiffs contended that “[w]e have been defining special damages as those subjective feeling damages that are different from the general human dignity damages ... And everybody in the [c]lass has those, or those can be determined on a class-wide basis for those.” ( Id. at...