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September 15, 1989

RAYMOND GREENWOOD, et al., Defendants

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR



 This Court has scheduled this case, regularly assigned to the calendar of its colleague Honorable Charles Norgle, for trial as part of the Civil Task Force calendar recently established by our District Court. At the final pretrial conference held earlier this week to discuss procedural and other arrangements for trial, Assistant Corporation Counsel Sharon Baldwin tendered a previously-prepared motion in limine asking that a standard of proof higher than preponderance of the evidence should be applied by the jury in determining whether punitive damages are to be awarded in this 42 U.S.C. § 1983 ("Section 1983") lawsuit.

 As chance would have it, that identical question was considered by our Court of Appeals just three weeks ago in Coulter v. Vitale, 882 F.2d 1286 (7th Cir. 1989). There an Oak Park police officer was found by the jury to have imposed seriously unreasonable and excessive force against the plaintiff while he was in police custody, therefore awarding $ 10,000 in compensatory and $ 20,000 in punitive damages. Only the punitive damages award was challenged on appeal.

 After reconfirming the substantive standard that controls the award of punitive damages in Section 1983 actions ("conduct motivated by evil intent or callous indifference to the federally-protected rights of plaintiffs"), Coulter, at 1289 confirmed that the issue of standard of proof was an open one:


To date, this circuit has not taken a position on the standard of proof required for punitive damages in a § 1983 case.

 It adverted to an earlier dictum in Spanish Action Committee of Chicago v. City of Chicago, 766 F.2d 315, 318 n. 2 (7th Cir. 1985) as somehow casting some doubt on the use of the preponderance-of-the-evidence standard. *fn1" But the ultimate result in Coulter, slip op. at 7-10 (as it had been with respect to the very different issue dealt with in Spanish Action Committee) was to find that the issue of the proper jury instruction on punitive damages was waived because it had not been properly raised at the trial-court level.

 What we are confronted with in light of Coulter is a still-open question -- moreover, a question on which there is certainly room for differences of view. This Court has always been mindful of the consideration that underlies Fed. R. Civ. P. ("Rule") 51, the Rule on which the Court of Appeals relied in Coulter. As Coulter, at 1289 put it:


We apply this Rule to allow trial judges the opportunity to correct any errors in charging the jury and to avoid costly and time-consuming appellate proceedings.

 In this instance there can be no assurance that "errors in charging the jury" can be avoided, given the possibility that the Court of Appeals might differ with the standard this Court decides to adopt. But this Court has devised a means that will (a) minimize the risk inherent in that possibility and (b) maximize judicial economy if that possibility were to become a reality. It has concluded that under the circumstances prudence dictates the following procedure, which the parties are directed to reflect in their instructions tendered for trial:


1. In addition to the general verdict form, the jury will be provided with interrogatories requiring that it answer separately whether the substantive conduct that would be a prerequisite to any possible award of punitive damages has been proved as to each defendant (a) by a preponderance of the evidence or (b) by clear and convincing evidence. *fn2"


2. Relatedly the jury will be instructed that it should not go on to consider the award of punitive damages unless it answers either or both of those interrogatories "Yes." *fn3"


3. In the instruction dealing with what is meant by burden of proof, the jury will be instructed as to the definition and meaning of both "preponderance of the evidence" and "clear and convincing evidence."


4. To avoid the quite understandable jurors' confusion about just what's going on, this Court sees no reason why they should not be told as part of the instructions that the law is not yet settled on the standard of proof for purposes of awarding punitive damages.

 This procedure will assure that the open burden-of-proof question will have to be confronted by this Court (and hence the Court of Appeals, if necessary) in only one possible circumstance: the jury's finding that the requisite conduct has been proved by a preponderance but not by clear and convincing evidence. Every other permutation will simply moot the issue. And given what would seem to be the comparative improbability of a "Yes" answer to the preponderance interrogatory and a "No" answer to the clear-and-convincing interrogatory, this procedure will most likely foster the Rule 51 purpose of "avoid[ing] costly and time-consuming appellate proceedings," advancing the important interest of "judicial economy" (Coulter, 1289). Finally, if the unlikely does come about -- if the jury does give different answers to the two interrogatories and thus awards damages to plaintiff, the record will be such that an appeal will end the matter no matter which way the Court of Appeals rules on the burden of proof, avoiding any potential for a remand and retrial.

 Date: September 15, 1989

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