Bass v. Spitz, Civ. A. No. 78-71712.

• Court: United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
• Writing for the Court: James G. Gross, John J. McCann, Asst. Wayne County Corp. Counsel, Detroit, Mich., for defendants
• Citation: 522 F. Supp. 1343
• Parties: Millard BASS, Plaintiff, v. Werner SPITZ, Individually and as Wayne County Medical Examiner, and the County of Wayne, Defendants.
• Docket Number: Civ. A. No. 78-71712.
• Decision Date: 18 September 1981

522 F. Supp. 1343

Millard BASS, Plaintiff,
v.
Werner SPITZ, Individually and as Wayne County Medical Examiner, and the County of Wayne, Defendants.

Civ. A. No. 78-71712.

United States District Court, E. D. Michigan, S. D.

September 18, 1981.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Robert K. Tanenbaum, Jack Gruenstein, Philadelphia, Pa., Gerald I. Krafsur, Southfield, Mich., for plaintiff

James G. Gross, John J. McCann, Asst. Wayne County Corp. Counsel, Detroit, Mich., for defendants.

OPINION

FEIKENS, Chief Judge.

Dr. Millard Bass brought this suit against his former employer, Wayne County, Michigan, and the person who appointed him, Dr. Werner Spitz, Wayne County Medical Examiner.¹ In 1976, plaintiff was "indefinitely suspended" from his position as an assistant medical examiner for Wayne County, and prosecuted on criminal charges of mutilating dead bodies. The charges were dismissed at the preliminary examination. These facts are set forth more fully in my earlier Opinion. Bass v. Spitz, 510 F.Supp. 182 (E.D.Mich.1981).

Plaintiff presented both a federal and a state law claim to the jury. He contended that his "indefinite suspension" without hearing in the midst of adverse publicity deprived him of his liberty without due process of law (federal claim); he also contended that Wayne County, through Spitz and others, maliciously prosecuted him on charges of mutilation of dead bodies, a violation of Mich.Comp.Laws § 750.160 (Mich. Stat.Ann. § 28.357 (Callaghan 1962)). The jury awarded plaintiff damages of $600,000 for malicious prosecution, but found for Wayne County on the liberty interest claim.² The statute requires the trebling of the jury verdict.

Both parties have brought post-trial motions.

I. Defendant's motion for judgment notwithstanding the verdict

Judgment on the verdict was entered April 3, 1981. On April 10, defendant filed a motion for a new trial. On May 13, it filed a motion for permission to supplement the new trial motion. Permission was erroneously granted. The supplement, filed May 28, included a motion for judgment notwithstanding the verdict.

Federal Rule of Civil Procedure 50(b) states:

Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.

Federal Rule of Civil Procedure 6(b) states, "The court ... may not extend the time for taking any action under Rules 50(b)." Defendant's motion for a new trial and its motion for judgment notwithstanding the verdict must each have been brought within the prescribed period in order to be timely. The filing of one motion does not relieve defendant of its distinct obligation to file the other motion on time. See Johnson v. New York, New Haven & Hartford Railroad Co., 344 U.S. 48, 50-51, 73 S.Ct. 125,

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126-27, 97 L.Ed. 77 (1952). Thus, this motion must be denied.³

II. Defendant's motion to alter the judgment

In the May 28 supplement to its new trial motion, defendant argues that I erroneously trebled the jury verdict in the judgment. Mich.Comp.Laws § 600.2907 (Mich.Stat. Ann. § 27A.2907 (Callaghan 1980)) states:

Every person who shall, for vexation and trouble or maliciously, cause or procure any other to be arrested, attached, or in any way proceeded against, by any process or civil or criminal action ... shall be liable to the person so arrested, attached or proceeded against, in treble the amount of the damages and expenses which, by any verdict, shall be found to have been sustained and incurred by him.

The Michigan Court of Appeals has held that damages should not be trebled if the court has instructed the jury to include punitive damages in its verdict. LaLone v. Rashid, 34 Mich.App. 193, 203, 191 N.W.2d 98, 103 (1971). By analogy, defendant argues that damages should not be trebled if the court has instructed the jury to include damages for mental distress in its verdict. The Michigan Court of Appeals explicitly rejected this interpretation of the statute in Rivers v. Ex-Cell-O Corp., 100 Mich.App. 824, 838-40, 300 N.W.2d 420, 426-27 (1980), but defendant maintains that I am not bound by its decision.

I do not need to decide whether I have authority to disagree with the Michigan Court of Appeals on this issue, or the substantive issue itself.⁴ Defendant has presented this argument as part of its motion for a new trial. Nonetheless, it must be construed as a motion to alter the judgment, brought under Federal Rule of Civil Procedure 59(e). Dove v. Codesco, 569 F.2d 807, 809 (4th Cir. 1978); Seshachalam v. Creighton University School of Medicine, 545 F.2d 1147 (8th Cir. 1976) (per curiam), cert. denied, 433 U.S. 909, 97 S.Ct. 2974, 53 L.Ed.2d 1093 (1977); Maryland Tuna Corp. v. MS Benares, 429 F.2d 307, 317-18 (2d Cir. 1970). See Smith v. Hudson, 600 F.2d 60, 62-63 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). As such, it had to be served within ten days after entry of judgment. Federal Rule of Civil Procedure 6(b), 59(e). The pleading in which this motion is contained was not served on plaintiff until May 27, 1981, more than a month after judgment was entered. Thus, it must be denied.⁵

III. Defendant's motion for a new trial

Defendant moves for a new trial on three grounds. First, it contends that the jury's finding of liability was contrary to the great weight of the evidence. Second, it contends that my instructions to the jury were erroneous. Third, it contends that the jury's verdict on damages was excessive.

A. Weight of the evidence on liability

Defendant argues that the jury's finding of malicious prosecution is contrary to the

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great weight of the evidence⁶ because there is little evidence that Dr. Spitz initiated the prosecution of either complaint against plaintiff, or that he did so without probable cause.⁷ I find enough evidence in the record on these two issues to reject defendant's argument

Two criminal complaints were filed against plaintiff. In the first complaint, he was charged with decapitation of the body of a woman named Glenda Reed. On this charge, the strongest evidence against him was a group of three cervical vertebrae found in his desk at the Wayne County Medical Examiner's office. Spitz fit these three vertebrae with a fourth vertebra taken from the body. Patrick Foley, the assistant prosecutor who investigated the charges against plaintiff, testified that Spitz "told us they fit like a puzzle, and I believe his statement was that they came from the same body." (Tr. 2/23/81, at 2123). He admitted that he relied on Spitz as a medical expert, and saw no reason to consult other doctors. (Tr. 2/23/81, at 2123 and 2130).

Later, at plaintiff's preliminary examination, the degree of certainty in Spitz's identification began to erode. On direct examination, he stated, "My opinion is that they the vertebrae match so perfectly that I am bound to believe that they do come from the same person." (Tr. 2/9/81, at 926; 2/25/81, at 22). On cross-examination, however, he stated, "(I)t is my professional opinion that they could very well come from the same person.... Nobody can say that in fact, they come from the same body. There is no way this can be established." (Tr. 2/25/81, at 23-24). He explained that his opinion was derived only from fitting the vertebrae together, because there was no other method to determine if they came from the same body. (Tr. 2/25/81, at 26-28). At trial, it became clear that other identification techniques exist. (Tr. 2/24/81, at 2234-35, 2245-54).

A person "initiates" a prosecution if he makes false statements to prosecuting officials or wilfully conceals facts from them, causing them to recommend issuance of a warrant. Renda v. U.A.W., 366 Mich. 58, 86-87, 114 N.W.2d 343, 357 (1962). From this evidence, the jury properly could have concluded that Spitz intentionally overstated his ability to identify the vertebrae from plaintiff's desk as part of the body of Glenda Reed.⁸ Foley admitted that he relied on Spitz's medical expertise. Thus, the jury properly could have found that Spitz "initiated" the prosecution.

Similarly, the jury properly could have concluded that Spitz acted without probable cause to believe plaintiff committed a

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crime.⁹ When Spitz exhumed the body of Glenda Reed, he found that its condition did not match the description in her autopsy report. The report indicated that plaintiff had autopsied the body, and that the head was attached to the body at the time of the autopsy. Spitz found that the head was missing, and that no autopsy had been performed. The jury properly could have concluded that these discrepancies gave Spitz probable cause to believe that something unusual had occurred, but that there were too many other potential explanations for him to have probable cause to believe that plaintiff committed a crime.¹⁰ Clanan v. Nushzno, supra note 9, 261 Mich. at 427-28, 246 N.W. 168

Because the jury properly could have found defendant liable for malicious prosecution of this complaint, I do not need to consider its argument that a verdict based on the other complaint would be contrary to the great weight of the evidence. This ground for a new trial must be rejected.

B. Instructions on scope of defendant's liability

Defendant next contends that a new trial is necessary because I erroneously instructed the jury on the scope of defendant's liability for malicious prosecution. Defendant maintains that it was error for me to instruct the jury that defendant was liable if Spitz maliciously prosecuted plaintiff "either alone or in combination with others", (Tr. 3/3/81, at 119-20), and to refuse to give its proposed instruction on the status of the prosecutor's office.¹¹ It alleges that this permitted the jury to...