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Fletcher v. Tomlinson, et. al. aff'd by 8th Circuit

Phillip A. Tatlow
Phillip Tatlow, Phillip A. Tatlow, ERISA, Long-term disability, disability, wrongful death, Union attorney
Posted on Jul 14, 2018

Calvin Fletcher v. Tomlinson, Martorano, and Moton, was tried to a jury in St. Louis Missouri in the Eastern District of Missouri the week of August 9, 2016. Bollwerk & Tatlow's own Phillip A. Tatlow was lead attorney in the case and tried it with co-counsel.

The case involved numerous Defendants, claims and causes of actions, focusing upon the arrest and treatment of  Calvin Fletcher on the night of March 6, 2013.  The matters that were tried included excessive force claims and a conspiracy claim to deprive Mr. Fletcher of his civil rights.

Mr. Fletcher, a 5'8", 155 pound african american male, alleged that when he was walking along the sidewalk to go to across the street to the gas station, he saw a marked patrol car leaving the gas station's parking lot. St. Louis Police Officers, Joseph Tomlinson, Nicholas Martorano, and John Moton were in the patrol car. Fletcher continued walking and saw the patrol car stop at a stoplight. He was standing at the corner where the patrol car was stopped. Upon seeing Fletcher, the officers radioed at 8:21 that they were going to perform a pedestrian check on Fletcher.  They claimed he was adjusting something in his waistband and it could have been a weapon. Mr. Fletcher alleges this was false and he was waiting to cross the street to go the gas station to purchase merchandise. The three officers, all of whom were at least six (6) feet tall and all over 200 pounds were wearing tactical uniforms including bullet proof vests. Startled, Mr. Fletcher quickly back pedeled looking backwards to see if they were going after someone or something behind him. Officer Martorano, the largest of the officers tripped over a curb and fell down, cutting his hand. Mr. Fletcher stopped and tripped and ended up on his bottom. One of the officers came up behind him, placing his hands behind his back.

Officer Martorano quickly got up and was enraged and rushed towards him and smacked him across the face with something that felt like a brick. Fletcher testified the officers started kicking him, punching him and hitting him all over the body when he did nothing to deserve this cruel treatment. Officer Moton removed his baton from his belt and began hitting Fletcher in the legs and lower back. They took a coat and held it up so that members of the public that had gathered in the street would not see what they were doing to Fletcher. After this, the officers placed Mr. Fletcher in the patrol car and he noticed a bag, a cell phone and a jacket and yelled these were not his things and what was going on. He feared the officers were trying to set him up for something he did not do. They pulled him out of the car, while he was still handcuffed and began beating him again and dragged him into a paddy wagon. At that point, he could not walk and could not see very well due to fading in and out of consciousness. He felt an electric shock in his body and it woke him up.

One of the officers laughed and said watch your head and slammed the door of the paddy wagon on his head. The officers described the events much differently, and denied using any excessive force and claimed Mr. Fletcher was resisting arrest and assaulted Officer Martorano. Later they also charged him with resisting arrest, assault on a law enforcement officer and possession of a controlled substance, but the City Prosecutor refused to press charges. The Paddy Wagon driver, Thomas Carroll, was sued as well because when he got to the scene of the arrest he shut off the camera that was supposed to remain on to record the event. There were no allegations against him for excessive force, just shutting off the camera so that the vilolent assualt and battery against Mr. Fletcher would not be recorded.

 Mr. Fletcher's attorneys obtained through discovery the portion of the video of the paddy wagon when it was driving to the scene and it had arrived. The video went off after just a second or two when it was at the scene and Officer Carroll admitted to shutting it off. As the 8th Circuit pointed out, the video portion that did exist showed an entirely different scene than the officers testified to. It showed them talking as the paddy wagon arrives, with the patrol car's doors open and its emergency lights not on. Fletcher is not seen in the squad car. Sergeant Christopher Simeone testified that he recalled arriving at the scene prior to the paddy wagon's arrival. He testified that he observed Fletcher moving about aggressively in the back seat, thrashing about, yelling incoherently. He testified to seeing Fletcher taken out of the patrol car when he was conveyed to the paddy wagon. As the 8th Circuit pointed out, "Sgt Simeone was dispatched to the scene at 8:49 pm,  but the paddy wagon arrived at the scene at 8:29 p.m." with the camera momentarily on before it was shut off. The Paddy Wagon had arrived 20 minutes before the time that Sgt. Simeone had been dispatched to even go to the scene so he could not have physicially observed what he testifed to in trial.

The documents produced by the City showed that Sgt. Simeone's testimony was inconsistent with their own written and video records. Other evidence that was produced by the attorneys for the City Police Department was used to impeach the testimony of Defendant Martorano. This included taser records that he seemed to never have reviewed. He testified he only tased Mr. Fletcher before he was handcuffed during the initial altercation when Mr. Fletcher was resisting arrest. However, the records showed that the firing of the taser occurred at 6:40 pm when his shift began, as a test to make sure it worked, and again at 8:52 pm and 8:56 pm, 30 minutes after the pedestrian check that they had called in on the radio. The tasers would have been deployed at the time Mr. Fletcher was handcuffed laying in the van, despite what Martorano testified to. He was at a loss to explain why the records showed this information.

The jury found against two of the Defendants, including Officer Martorano and Officer Moton and awarded $100,000 against Martorano in compensatory damages, and $200,000 in Punitive Damages against Martorano. The jury awarded $100,000 in compensatory damages against Moton and $200,000 in Punitive Damages against Moton. The trial Judge also awarded Bollwerk & Tatlow expenses to try the case of $21,898.03 that they had expended for depostions and expert witness fees and $164,071.88 incurred in attorney's fees. The total verdict with attorney's fees and costs stands at $785,969.91 before the imposition of any interest on the verdict or for additional fees on appeal.  Incidentally, in Federal Court a Plaintiff must receive a unanimous verdict to win any case and that jury unanimously approved of this verdict.

The Defendants claimed several errors in the trial of the case including: 1) The district court erred in allowing Fletcher to read Dr. Bern's deposition testimony at trial; 2) the district court erred in allowing the jury to award punitive damages against Officer Moton with out evidence that Officer Moton engaged in any excessive force against Fletcher; and 3) the district court erred in failing to deduct from Fletcher's judgment the amounts the he received from settlements with other defendants before trial.

The court ruled that Judge Ronnie White properly admitted the deposition of the medical expert, Dr. Bern's into evidence and that Rule 32 (a)(4)(B) gave the district court discretion to admit Dr. Bern's deposition testimony because he was more than 100 miles away from the trial and Fletcher did not procure his absence. 

The court ruled that the district court properly submitted the issue of excessive force to the jury, and the jury found that the officers, including Officer Moton, violated Fletcher's constitutional right to be free from excessive force. The court explained first, the evidence sufficiently establishes that Officer Moton used excessive force against Fletcher. Fletcher specifically identified Officers Martorano and Moton as the officers who started kicking and punching and hitting him all over the body. Fletcher described being hit by some kind of rod on his lower back. and legs. Officer Moton was the officer that hit Mr. Fletcher with a baton, as confirmed in the police repor and his testimony. Second, the evidence sufficiently established that Officer Moton hit Fletcher with the baton and caused his injuries. Dr. Arkin testified that Fletcher had a lineal wond that could have been caused by a lineal object like a rod or baton. Fletcher's bruising of the back was noted by the medical professionals that examined him at the infirmary of the Jail upon his incarceration. Dr. Arkin testified that the trauma to Fletcher's torso and back caused his kidney failure.

The court pointed out that the purpose of punitive damages is to punish a defendant for outrageous, intentional, or malicious conduct, and deter similar extreme conduct in the future. The 8th Circuit agreed with the district court that "There was sufficient evidence of malice, recklessness or callous indifference to support this verdict based upon the extensive injuries suffered by Fletcher, as well as his testimony that he was beaten after he complied with the officers and after he was handcuffed. The jury also relied upon the expert witness testimony that Fletcher's injuries were caused by the actions of Officers Moton and Martorano.

Finally, the court ruled that the district court did not err in failing to deduct the prior settlement amounts with Defendants that had settled before trial with Fletcher. The counsel for the officers never brought this up during the trial or mentioned the offset issue to the court. It was only brought up later in a Rule 59 (e) motion to amend or alter the judgment. However, as the court pointed out this memo can't be brought to correct errors of counsel or something that they did not bring up at trial or to raise a new legal theory. Therefore the 8th Circuit affirmed the district court's denial of the Rule 59 (e) motion and to reduce the verdict.

In addition to the Defendants that went to trial, there were many more defendants that were involved as part of a claim for cruel and unusual punishment due to inadequate medical care in the jail. These Defendants included Dr. Paul Geiger, Pearl Scott, Rhalashondra Straughter, Joyce Sanchez,  and Corizon Medical Care, the company providing medical care to the jail. Also officer Blake Leadbetter from Perryville was a Defendant. These claims were settled prior to trial and the amounts remain subject to a confidentiality agreement. None of the amounts were introduced at trial but counsel for Defendants wanted to reduce the verdict by these settlement amounts but failed due to not bringing it up at trial.

The full case can be found at the United States Court of Appeals, 8th Circuit Web Site. The case is listed as 164399P.pdf  07/13/2018 Calvin Fletcher, Sr. v. Joseph Tomlinson, US Court of Appeals No: 16-4399.

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