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Testa v. Village of Mundelein

July 15, 1996

VINCENT TESTA,

PLAINTIFF-APPELLANT,

v.

VILLAGE OF MUNDELEIN, ILLINOIS, MUNDELEIN POLICE, LIEUTENANT PENDER, ET AL.,

DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 2316 Rebecca R. Pallmeyer, Magistrate Judge.

Before BAUER, RIPPLE, and MANION, Circuit Judges.

BAUER, Circuit Judge.

ARGUED FEBRUARY 5, 1996

DECIDED JULY 15, 1996

On an October evening in 1991, a fight erupted outside Vincent Testa's home in Mundelein, Illinois. Testa did not participate in the initial skirmish, but that did not stop him from getting into an argument with the Mundelein police officers who arrived on the scene. The officers eventually arrested Testa for disorderly conduct and obstructing a police officer. Although an Illinois Circuit Court acquitted Testa on July 7, 1992, the October altercation would not be his last dispute with the Village of Mundelein.

This being a litigious society, Testa brought a claim under 42 U.S.C. sec. 1983 against the Village and the police officers for unlawful arrest and a state law claim for malicious prosecution. Both parties consented to trial before a magistrate judge, and Testa presented his claims to a jury, which returned a verdict in favor of the defendants on the sec. 1983 claim, but awarded Testa $1,500 on his malicious prosecution claim. Testa considers this a Pyrrhic victory; the magistrate judge ordered all parties to bear their own costs. The district court also denied Testa's motion for a new trial under Federal Rule of Civil Procedure 59(a). On appeal, Testa claims: 1) that the magistrate judge should have declared a mistrial because of improprieties in the defense's opening statement; 2) that the jury should have received an "eggshell skull" instruction; and 3) that the award on the malicious prosecution claim entitled him to reasonable litigation costs. Testa would like a new trial on damages (not surprisingly, he is content with the jury verdict on liability) or, at a minimum, an award of attorney's fees and costs. Because the district court acted within its discretion on all of the above issues, we affirm.

BACKGROUND

Testa cites numerous alleged errors that occurred at trial, beginning with the defense's opening statement. Testa's counsel twice objected to subjects that the defense raised in its opening. The first objection was to the defense's representations about a July 1991 incident between Testa and Lieutenant Donald Hansen, one of the defendant police officers who arrested Testa after the October argument.

The July incident involved another fight in front of Testa's house. During that altercation, Testa allegedly cursed Lieutenant Hansen and another police officer, and threatened the mayor of Mundelein. In the defense opening, counsel suggested that the July incident was the starting point for the animosity that ultimately boiled over in October. Defense counsel described the incident in great detail, including the expletives that Testa shouted at Officer Hansen and the profanity he directed at the watch commander over the telephone later that evening. The opening statement also noted that the records from Dr. Leo Jacobs, Testa's psychiatrist, did not include any mention of the July incident, despite the fact that Dr. Jacobs treated Testa between July and October. Eventually, plaintiff's counsel interrupted and objected to what he perceived as "closing argument stuff." The magistrate judge, without ruling on the objection, instructed counsel to move on.

Following this interruption, defense counsel continued to refer to the records of Doctors Berger and Jacobs, the physician and psychiatrist, respectively, who had treated Testa. The defense concluded its opening statement by inviting the jury to ask questions and draw inferences from the evidence that would be presented. The following excerpt from the transcript indicates how plaintiff's counsel and the district court responded:

[DEFENSE COUNSEL]: When you hear the testimony about how horrible this was, how Mr. Testa became a basket case, ask yourself why it was that Mr. Testa saw Dr. Jacobs eight times, 30-minute sessions, eight 30-minute sessions over a two-year period. That's how severe this supposed psychiatric condition of Mr. Testa was. Ask yourself why Dr. Jacobs -- he doesn't have any knowledge or recollection of ever being told any of the events, any of the facts underlying the arrest.

[PLAINTIFF'S COUNSEL]: Judge, this is closing argument again.

[DEFENSE COUNSEL]: Judge, I believe this is all testimony that Dr. Jacobs has already ...


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