Warr v. Liberatore
| Decision Date | 20 March 2020 |
| Docket Number | 13-CV-6508P |
| Parties | Benny T. WARR and Nina M. Warr, Plaintiffs, v. Anthony R. LIBERATORE, et. al, Defendants. |
| Court | U.S. District Court — Western District of New York |
Charles Francis Burkwit, Burkwit Law Firm, PLLC, Rochester, NY, for Plaintiffs.
Spencer L. Ash, City of Rochester Law Department, Rochester, NY, for Defendant.
AMENDED DECISION & ORDER
Plaintiffs Benny T. Warr ("Warr") and his wife Nina M. Warr (collectively, "plaintiffs") commenced this action on September 19, 2013, against three Rochester Police Department ("RPD") officers, Anthony R. Liberatore ("Liberatore"), Joseph M. Ferrigno, II ("Ferrigno"), and Mitchell R. Stewart, II ("Stewart"), and the City of Rochester (collectively, "defendants") asserting claims pursuant to 42 U.S.C. § 1983 and New York State law for injuries arising from Warr's May 1, 2013 arrest for disorderly conduct.2 (Docket # 1).
On December 4, 2017, the parties consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Docket # 116).
Following an eleven-day jury trial, during which plaintiffs were represented by Charles F. Burkwit, Esq. ("Burkwit") and defendants were represented by Spencer L. Ash, Esq. ("Ash"), and after more than a day of deliberations, the jury returned a verdict in favor of all individual defendants on Warr's claims for unlawful arrest, assault, and battery, and in favor of defendants Ferrigno and Stewart on Warr's claim for excessive force.3 (Docket # 148 at ¶¶ 1-3, 5-11). The jury determined that Liberatore was liable on Warr's Section 1983 claim for excessive force against him. (Id. at ¶ 4). Currently pending is plaintiffs' motion to set aside the verdict, grant a new trial, and impose sanctions. (Docket ## 158, 170).4 Also pending is an Order to Show Cause issued by this Court on March 3, 2020. (Docket # 172). For the reasons discussed below, the Court denies plaintiffs' motion to set aside the verdict and for a new trial and grants in part the motion for sanctions.
As explained in previous decisions in this matter, familiarity with which is assumed (see , e.g. , Docket ## 102, 117, 166, 169), this lawsuit arises out of the May 1, 2013 arrest of Warr, a heavyset man who uses a wheelchair and a left leg prosthesis as a result of an above-the-knee amputation, at the intersection of Jefferson Avenue and Bartlett Street in the City of Rochester. During the trial, the jury heard testimony from Warr, the defendant officers, and eyewitnesses, including Derrick Latham ("Latham"), Tache Young ("Young"), and Mary Adams; plaintiffs and defendants also presented testimony from several expert witnesses. The jury viewed two video recordings of the events leading up to the arrest and the arrest itself, one of which was recorded by a blue light camera near the location of the arrest (the "blue light video"), and the other of which was recorded by Young on a cellular phone (the "cellphone recording"). (Plaintiffs' Exhibits ("Exs.") 1 and 2). The cellphone recording contains audio; the blue light video does not.
While the parties' versions of events conflicted in several meaningful respects, including whether the officers informed Warr that he was under arrest, whether Warr resisted the officers' efforts to arrest him, and whether Warr used profanities or refused to comply with the officers' orders, the parties generally agreed that the officers used force against Warr in connection with his arrest for disorderly conduct. In relevant part, the evidence demonstrated that at some point during the altercation between the officers and Warr, Ferrigno deployed pepper spray into Warr's face. (Tr. A 257).5 Shortly thereafter, Liberatore pushed over Warr's wheelchair, causing Warr to fall to the ground. (Tr. A 258). While Warr was on the ground, the officers attempted to pull Warr's arms behind his back in order to apply handcuffs, Ferrigno delivered at least three knee strikes to Warr's abdominal area, and Liberatore delivered an elbow strike to Warr's head. (Tr. A 257-59; Tr. B 24-25). Stewart arrived at the scene after Warr was already on the ground and assisted Liberatore and Ferrigno to handcuff Warr. (Tr. A 260-61).
For his part, Warr testified that his encounter with the officers began after he overheard them order a group of individuals to disperse from the area in front of a store on Jefferson Avenue. (Tr. A 246). According to Warr, without conversing with or responding to the officers, he crossed the street in order to catch a bus. (Tr. A 247). While waiting for the bus, Warr was approached by Ferrigno and Liberatore, and Ferrigno ordered Warr to move. (Tr. A 257). Warr explained that he was waiting for the bus, at which point Ferrigno deployed pepper spray into his face. (Tr. A 257). According to Warr, the officers pushed over his wheelchair, causing his head and left side of his body to strike the ground. (Tr. A 258-59). While he was on the ground, Warr felt kicks, knee strikes, and an elbow to his head. (Tr. A 259-62). Warr testified that at no point was he told that he was under arrest and he never attempted to resist arrest or to strike the officers. (Tr. A 257-58, 262, 264).
Warr testified that he suffered various injuries as a result of the incident: specifically, three fractured ribs
, injury to his residual limb, preventing him from wearing a prosthetic leg, exacerbation of his chronic back pain, a neck injury, a traumatic brain injury characterized by headaches and memory loss, and post-traumatic stress disorder ("PTSD"). (Tr. A 268-78). Warr also offered testimony from several medical experts in support of his claimed injuries. Clifford Ameduri ("Ameduri"), MD, opined that Warr indeed suffered the identified physical injuries and that they were caused by the May 1, 2013 arrest. (Tr. A 614, 638, 640-46, 650). Michael Kuttner ("Kuttner"), Ph.D., testified that in his opinion Warr suffered from PTSD with dissociative symptoms as a result of the arrest. (Tr. A 721). Kenneth Reagles ("Reagles"), Ph.D., a rehabilitation psychologist, testified that he developed a life care plan for Warr to identify and value the future health-related goods and services Warr would require as a result of his injuries. (Tr. A 120-33). Reagles also provided an opinion regarding the value of the household work that Warr is no longer able to perform as a result of the incident. (Tr. A 118-20). Finally, Ronald Reiber ("Reiber"), Ph.D., an economist, estimated the future cost of Warr's life care plan, as well as the cost to replace the household services Warr can no longer perform. (Tr. A 330).
Ferrigno and Liberatore testified that when they initially encountered Warr on May 1, 2013, they ordered him to disperse from the area. (Tr. A 1152-54, 1255). Warr refused and responded with profanities. (Tr. A 1154, 1206, 1255-56). At that time, Ferrigno told Warr that he was under arrest, but Warr left the immediate vicinity and crossed the street to the area of the bus stop. (Tr. A 1154, 1206, 1256). Ferrigno and Liberatore continued to disperse people from the street and then approached Warr to arrest him for disorderly conduct. (Tr. A 1162-64, 1213, 1256-57). According to the officers, Warr refused to comply with their instructions to place his hands behind his back; when they attempted to gain control of his wrists, Warr began flailing his arms. (Tr. A 1165, 1258). Ferrigno testified that as he continued to attempt to obtain control of Warr's wrist, Warr struck him in his groin area. (Tr. A 1166, 1239). At that time, Ferrigno deployed pepper spray to Warr's face. (Tr. A 1166, 1258-59). The officers continued to attempt to gain control of Warr's hands, and Liberatore pushed Warr's wheelchair over, causing Warr to fall to the ground. (Tr. A 1167-68, 1259-60). The officers testified that Warr continued to resist arrest while on the ground. (Tr. A 1168-69, 1260-62). Ferrigno testified that he delivered knee strikes to Warr's abdomen, and Liberatore testified that he delivered an elbow strike to Warr's head. (Tr. A 1231, 1234, 1263-64). Stewart testified that Warr was already on the ground when he arrived on scene. (Tr. A 1305-06). He assisted in the arrest by attempting to pull Warr's arm behind his back and by using two sets of handcuffs to secure Warr's hands. (Tr. A 1306, 1316-17, 1323).
Defendants also introduced the testimony of two experts, Ralph Benedict ("Benedict"), Ph.D., a neuropsychologist, and Robert W. Molinari ("Molinari"), MD, an orthopedic surgeon, both of whom reviewed Warr's medical records and conducted independent medical examinations of him. (Tr. A 420-89). Benedict testified that Warr suffered from several health issues prior to the May 1, 2013 arrest, including chronic pain, depression, and substance abuse. (Tr. A 424). According to Benedict, an MRI of Warr's brain did not demonstrate any trauma-related injury, and he found no evidence that Warr suffered a severe concussion
. (Tr. A 428, 449). Benedict agreed that Warr had suffered a concussion and PTSD as a result of the arrest, but disagreed that he had suffered resulting post-traumatic encephalopathy. (Tr. A 436, 444-46, 453). Benedict testified that his evaluation of Warr depended, in part, upon Warr's self-report of his symptoms. (Tr. A 429-30). According to Benedict, he found that Warr engaged in some degree of exaggeration during the examination, and he could not exclude the possibility that "secondary gain factors," including the pending litigation, had influenced the results of the examination. (Tr. A 429-30).
Molinari testified that Warr suffered from several pre-existing conditions, including obesity
, hypertensive heart disease, type 2 diabetes, and significant arthritis in his neck and back. (Tr. A 462-63). Molinari opined that Warr did not suffer a...
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