973 F.2d 526 (7th Cir. 1992), 91-1534, Niehus v. Liberio

Docket Nº:91-1534, 91-1635.
Citation:973 F.2d 526
Party Name:James E. NIEHUS and Denise Niehus, Plaintiffs-Appellees, Cross-Appellants, v. Vince LIBERIO and Frank Vittorio, Defendants-Appellants, Cross-Appellees.
Case Date:August 20, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 526

973 F.2d 526 (7th Cir. 1992)

James E. NIEHUS and Denise Niehus, Plaintiffs-Appellees,



Vince LIBERIO and Frank Vittorio, Defendants-Appellants,


Nos. 91-1534, 91-1635.

United States Court of Appeals, Seventh Circuit

August 20, 1992

Argued Feb. 18, 1992.

Page 527

Gary L. Starkman (argued), Ross & Hardies, Marc C. Smith, Arvey, Hodes, Costello & Burman, Timothy J. Touhy (argued), Ronald A. Stearney, Chicago, Ill., for plaintiffs-appellees.

Robert L. Shuftan, Kathy P. Fox (argued), Georgia L. Vlamis, Wildman, Harrold, Allen & Dixon, M. Jayne Rizzo, Mary K. Periolat, Kelley, Drye & Warren, Chicago, Ill., for defendants-appellants.

Before POSNER and KANNE, Circuit Judges, and VAN SICKLE, Senior District Judge. [*]

POSNER, Circuit Judge.

James Niehus was arrested on suspicion of drunk driving and brought to a police station in Berkeley, Illinois, a suburb of Chicago. He got into an argument with the police, and a fight ensued in the course of which--he testified--officers Liberio and Vittorio kicked him in the face, breaking his left cheekbone, as a consequence of which he suffered brain damage that has caused significant although not totally disabling mental and emotional injury. He sued the officers under 42 U.S.C. § 1983, charging that they had used excessive force against him in violation of his rights under the due process clause of the Fourteenth Amendment, and adding pendent state law claims of conspiracy and malicious prosecution, which however the judge dismissed. The jury awarded Niehus $336,320.59 in damages (all compensatory). The officers appeal, arguing that there was no credible evidence that they had caused his injuries and also complaining about two of the trial rulings. Niehus cross-appeals, arguing that the judge should not have withdrawn the conspiracy and malicious prosecution counts from the jury. His ex-wife also appeals. She was a plaintiff in the district court, arguing that the psychological injury inflicted by the defendants on her husband ruined her marriage and caused her to obtain a divorce from him. She claims that loss of consortium is a deprivation of liberty within the meaning of the due process clause. The district judge disagreed.

The evidence regarding the cause and consequences of Niehus's broken cheekbone was vigorously contested and far from wholly satisfactory, but we cannot say that the judge should have taken the case away from the jury. Mr. Niehus, a conductor for a commuter rail line, got off work late one night and repaired immediately to a bar, where he played cards and drank beer until daylight. Well tanked, he got into his car and drove home. En route, after a ten-minute interlude in a coffee shop where he had gone to sober up, he turned into a lane of oncoming traffic and was struck. His car was propelled off the road and through a chain link fence, but it did not turn over and since he was wearing his shoulder-harness seatbelt he emerged from the car without apparent injury. His face was red and puffy, but that may have been due to his heavy drinking. He did not complain of any injury, and the officers and paramedic at the scene noted no signs of injury.

At the station house Niehus became obstreperous, in part he says because he was afraid that an arrest for drunk driving would jeopardize his status with his employer and with the army reserves, in which he is a sergeant. The police handcuffed one of his arms to the chair in which they had told him to sit. He demanded to be allowed to call his lawyer and to this end tried to slide his chair across the room to the telephone. The defendant officers tried to stop him. Niehus says that they started hitting him and that he fell on the floor and curled up with the left side of his face on the floor and his right arm over his head to protect him. He says they kicked him between five and fifteen times in the head while he was lying there and some of the kicks struck the left side of his face even though it was resting on the floor. They deny kicking him but of course that was an issue for the jury. They add that it was physically impossible for them to kick him in the left side of the face because that side of his face was against the floor, but

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that is nonsense. Imagine kicking a soccer ball. The foot goes under the ball. And so with a head: a sharp kick to a face lying on the floor is quite likely to go under the face and, as all the medical witnesses agreed, can break a man's cheekbone. The defendants reply that the bone was broken in the car accident, and they point out that Niehus himself said so when he went to the hospital after being released from the station house on bond. But Niehus testified--not implausibly and certainly not incredibly--that he didn't want to reveal to the hospital that he had been arrested, because he was afraid that his employment and military-reserve status would be jeopardized. Niehus was in fact prosecuted for battery and drunk driving, but acquitted.

Niehus was sufficiently drunk when his car was struck that he mightn't have felt the pain of a broken cheekbone. But at least according to the defendants' lawyer he had (though this seems improbable) sobered up a lot by the time the altercation in the station house began several hours later, yet still he said nothing about a pain in his cheek until after the fight. The doctors testified as we said that the break was consistent with a kick though it could of course have been caused by Niehus's striking his head against the door of the car in the accident. If the jury believed, as it had every right to do, that Niehus was kicked in the left side of his face by the defendants, the fact that the cheekbone might have been broken already would not help the defendants. If you kick a person's freshly broken cheekbone you are likely to aggravate the injury substantially, and the "eggshell skull" or "thin skull" rule, Stoleson v. United States, 708 F.2d 1217 (7th Cir.1983); Pieczynski v. Duffy, 875 F.2d 1331, 1336 (7th Cir.1989); Jordan v. Atchison, Topeka & Santa Fe Ry., 934 F.2d 225, 228-29 (9th Cir.1991); Casey v. Fredrickson Motor Express Corp., 97 N.C.App. 49, 387 S.E.2d 177 (1990), would make the officers liable for the full consequences of their kicks even if, had it not been for a preexisting injury, the consequences would have been much less injurious. Oddly, the leading "eggshell skull" case also involved a kick. Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891).

One does not associate a fractured cheekbone with permanent mental and psychological impairments, but reputable doctors testified that this fracture had injured Niehus's brain, precipitating cognitive and emotional disorders. The defendants did not contest this evidence directly. Nor did they exercise their right to have the plaintiff examined by a physician of their own choosing. Fed.R.Civ.P. 35. Instead they presented evidence that Niehus really hadn't changed much after the accident. They emphasized that he retained his job with the railroad and his reserve status--which includes a top secret clearance--and even passed with flying colors the proficiency tests that the railroad administers to its employees from time to time. They point out that the conductor is in charge of the entire train crew and it is hardly likely that the railroad would permit a man as impaired as the plaintiff's evidence suggests he was to remain in a position in which he was responsible for the safety of passengers as well as of other crew members.

Niehus's medical experts riposted that he had recovered to the point of being...

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