The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge
Jacqueline Fegan brought suit against four officers of the Chicago Police Department, Denis Doherty, Michael Drew, Richard Reid, and James Young, related to a May 18, 2006 incident in which she was arrested for jaywalking.*fn1 After a three week trial, a jury found in Fegan's favor and against Reid on Fegan's unlawful seizure, excessive force, and intentional infliction of emotional distress ("IIED") claims. Reid, Doherty, Drew, and Young were found liable on Fegan's federal and state conspiracy claims. The jury awarded Fegan $1,553,000 in compensatory damages. Defendants moved for judgment as a matter of law and a new trial. The facts surrounding the case are well-known to the parties and will only be repeated here as necessary. For the following reasons, defendants' motions [#184, 185] are denied.
Under Rule 50(b), judgment as a matter of law may be entered where "there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [an] issue." Kossman v. Ne. Ill. Reg'l Commuter R.R. Corp., 211 F.3d 1031, 1036 (7th Cir. 2000) (quoting Fed. R. Civ. P. 50) (internal quotation marks omitted) (alterations in original). After reviewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party, the court must determine whether the verdict is supported by sufficient evidence. Id.; Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1129 (7th Cir. 1997). While the court will overturn a jury verdict only if it concludes that "no rational jury could have found for the plaintiff," Collins v. Kibort, 143 F.3d 331, 335 (7th Cir. 1998) (citation omitted) (internal quotation marks omitted), "a mere scintilla of supporting evidence will not suffice." Millbrook v. IBP, Inc., 280 F.3d 1169, 1173 (7th Cir. 2002) (quoting Futrell v. J.I. Case, 38 F.3d 342, 356 (7th Cir. 1994)) (internal quotation marks omitted).
Under Federal Rule of Civil Procedure 59(a), "[t]he court may, on motion, grant a new trial on all or some of the issues--and to any party-- . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a). The district court is to consider whether the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party. McNabola v. Chi. Transit Auth., 10 F.3d 501, 516 (7th Cir.1993)(citations omitted) (internal quotation marks omitted). The court may grant a new trial based on substantial errors in the admission or rejection of evidence. 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Practice and Procedure § 2805 (2d ed. 1995) (citing cases). In considering a motion for a new trial, the court is entitled to weigh the evidence for itself, Thomas v. Stalter, 20 F.3d 298, 304 (7th Cir. 1994) (citing 11 Charles Alan Wright & Arthur R. Miller, Fed. Practice and Procedure § 2806, at 44-45 (1st ed. 1973)),*fn2 and to assess the witnesses' credibility. Id. (citing Whalen v. Roanoke County Bd. of Supervisors, 769 F.2d 221, 226 (4th Cir.1985), overruled on reh'g on other grounds,797 F.2d 170, 171 (4th Cir. 1986) (per curiam) (en banc)). The court should not grant a new trial based on the weight of evidence unless "the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience." Latino v. Kaiser, 58 F.3d 310, 315 (7th Cir. 1995). This rule stems from the Seventh Amendment's limitations on the judge's power to re-examine the jury's verdict. Id. at 314. "The district judge can take away from the jury testimony that reasonable persons could not believe. However, that exception is a narrow one, and can be invoked only where the testimony contradicts indisputable physical facts or laws." Id. at 315 (citations omitted).
I. Judgment as a Matter of Law
Defendants assert that judgment should have been entered in their favor as a matter of law on Fegan's unlawful seizure, IIED, and federal and state conspiracy claims, as no reasonable jury could have found for her on these claims. They argue that the testimony elicited at trial established that Reid had probable cause to arrest Fegan. Defendants further contend that Fegan did not establish the degree of severity required for conduct to be found so extreme as to establish IIED. If the adverse unlawful seizure and IIED findings are reversed, defendants posit that the conspiracy claims also fail. Even if this is not the case, defendants contend that the evidence did not establish the elements of a conspiracy. Finally, defendants argue that they are entitled to qualified immunity on the federal claims.
To prevail on her unlawful seizure claim, Fegan had to establish the absence of probable cause for her arrest and detention. See Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998). Probable cause exists if "at the moment the arrest was made . . . the facts and circumstances within [the police officer's] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [plaintiff] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed. 2d 142 (1964); see also Thompson v. Wagner, 319 F.3d 931, 934 (7th Cir. 2003). Probable cause is evaluated "not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the position of the arresting officer -- seeing what he saw, hearing what he heard." Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992). "[P]robable cause demands even less than probability; it requires more than bare suspicion but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false." Woods v. City of Chi., 234 F.3d 979, 996 (7th Cir. 2000) (citations omitted) (internal quotation marks omitted); see also Maryland v. Pringle, 540 U.S. 366, 370--71, 124 S.Ct. 795, 157 L.Ed. 2d 769 (2003) ("The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.").
Sufficient evidence existed for the jury to find against Reid on the unlawful seizure claim. Drawing all reasonable inferences in Fegan's favor, the jury could reasonably have concluded that a reasonable person in Reid's position, knowing that Fegan was a Traffic Management Authority ("TMA") supervisor engaged in the duties of that position, would not have believed that Fegan was committing or about to commit an offense when she started to cross the street to consult her supervisor.*fn3 The jury was entitled to conclude that arresting Fegan for jaywalking while on duty was, rather, a pretext used to punish Fegan for not acquiescing to his demand to nullify his parking ticket. A TMA supervisor has authority to exercise the same powers as police officers to direct and regulate traffic, which admittedly would include entering roadways in places other than crosswalks, and the jury was so instructed. See Municipal Code of Chicago Sec. 9-4-101 ("'Traffic control aide' means any person designated by the superintendent of police or the executive director of emergency management and communications to exercise the power of a police officer to direct or regulate traffic or to issue citations for violation of parking and compliance ordinances."). Certainly the defense had no evidence of any other instance of a police officer or TMA officer having been arrested for jaywalking while on duty. Any reasonable construction of the municipal ordinance would permit a TMA supervisor to cross safely into the street to the median where she had lawfully parked her car to consult with her co-supervisor who had lawfully parked in the median. Because there was sufficient evidence from which to find that there was no probable cause to arrest Fegan, the court will not disturb the jury's verdict.
Defendants also argue that no reasonable jury could have found for Fegan on her IIED claim. They, however, did not request judgment as a matter of law on this claim in a pre-verdict motion. Thus, they have waived their argument related to this claim. See Fed. R. Civ. P. 50 & advisory committee notes; Exxon Shipping Co. v. Baker, --- U.S. ----, 128 S.Ct. 2605, 2617 n.5, 171 L.Ed. 2d 570 (2008) ("A motion under Rule 50(b) is not allowed unless the movant sought relief on similar ...