Restivo v. Hessemann
2017 WL 218006, 2017 U.S. App. LEXIS 948, 846 F.3d 547 (2017)
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Rule of Law:
In a 42 U.S.C. Section 1983 action, federal law is deficient regarding the setoff of prior settlements from a state that is not a proper Section 1983 defendant and settled a no-fault claim; therefore, state setoff laws that are inconsistent with Section 1983's federal policies of compensation and deterrence of constitutional abuses will not apply to reduce the damages awarded against an individual state actor. Additionally, expert testimony may be admissible under Federal Rule of Evidence 702 as "technical or other specialized knowledge" even if not all aspects of the opinion meet a "reasonable degree of scientific certainty," provided the testimony is reliable and grounded in the expert's knowledge and experience.
Facts:
- In November 1984, sixteen-year-old Theresa Fusco was last seen leaving her job at a roller rink in Lynbrook, New York.
- On December 6, 1984, Ms. Fusco’s body was found naked near the Lynbrook railroad tracks, and an autopsy showed she had been raped and strangled with a rope; Nassau County Homicide Detective Joseph Volpe acted as lead detective.
- Around the same time, a man named John French reported his car stolen near Hot Skates and later found it with changed license plates, a missing rope, and women’s striped jeans not previously present in the car; Volpe's notes indicated a hair "more than 50% similar to deceased" was found in French's car.
- In March 1985, after an eight-hour interrogation, John Restivo signed a statement implicating Dennis Halstead in Ms. Fusco's murder.
- Later in March 1985, Joseph Volpe and another detective interrogated John Kogut, who, after being screamed at, threatened, and told details of the crime by Volpe, signed a written confession implicating himself, John Restivo, and Dennis Halstead in Ms. Fusco's rape and murder.
- Soon after Kogut’s confession, Restivo’s van was seized, and "questioned hairs" (Q hairs) later determined to be consistent with Ms. Fusco’s were allegedly found inside.
- Restivo, Halstead, and Kogut were all charged, tried separately, convicted of Ms. Fusco's rape and murder, and sentenced to lengthy prison terms.
- In 2003, DNA testing on a vaginal swab from Ms. Fusco definitively excluded Kogut, Halstead, and Restivo as the source of semen, and also excluded 86 other individuals known to Ms. Fusco; the sperm quantity and condition indicated it was deposited no more than 8-12 hours before death.
- Restivo and Halstead ultimately spent eighteen years in prison (two pretrial and sixteen following conviction) for crimes they did not commit.
Procedural Posture:
- John Kogut's, John Restivo's, and Dennis Halstead's criminal convictions were vacated in 2003 based on new DNA evidence.
- The State re-tried John Kogut, who was acquitted in December 2003.
- The State then moved to dismiss the indictments against John Restivo and Dennis Halstead, which were granted on December 29, 2005.
- John Kogut filed a civil suit on December 19, 2006, and John Restivo and Dennis Halstead filed a separate civil suit on December 21, 2006, in the United States District Court for the Eastern District of New York.
- The district court consolidated the suits, which alleged numerous constitutional claims under 42 U.S.C. Section 1983 and state law claims, including malicious prosecution and denial of fair trial, against Joseph Volpe and other detectives and Nassau County.
- Following a first jury trial, the jury found for the defendants on all counts.
- Restivo and Halstead moved for a new trial, which the district court granted, but denied Kogut's motion.
- The case proceeded to a second trial, with Restivo and Halstead as plaintiffs, narrowing their claims to Volpe and Fraas (a hair evidence technician) for unconstitutionally depriving them of a fair trial and maliciously prosecuting them.
- The jury at the second trial found that Volpe, but not Fraas, maliciously prosecuted Restivo and Halstead and deprived them of a fair trial.
- A separate damages trial was held, and the jury awarded each plaintiff $18 million.
- Volpe moved to reduce the jury's damages award (for remittitur and setoff) and challenged the grant of attorneys’ fees; the district court denied these motions.
- Volpe (through his estate's executrix, Carolann Hessemann) appealed the district court’s judgment to the United States Court of Appeals for the Second Circuit.
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Issue:
1. Does a state's statutory rule for setting off prior settlements apply to reduce a jury award in a 42 U.S.C. Section 1983 action when applying that state law would be inconsistent with federal policies of deterrence and full compensation for constitutional violations, particularly where the settling party (the State) is not a proper Section 1983 defendant and settled a no-fault claim? 2. Did the district court abuse its discretion in its evidentiary rulings concerning the admissibility of expert testimony on postmortem root banding or police practices?
Opinions:
Majority - Pooler, Circuit Judge
No, New York's state setoff law does not apply to reduce the jury award in this Section 1983 action, and the district court did not abuse its discretion in its evidentiary rulings regarding expert testimony or by affirming the jury's damages and attorney's fees awards. The Second Circuit affirmed the district court's decision to grant Restivo and Halstead a new trial following the first defense verdict, but on an alternative ground: the first trial's jury instructions were inadequate regarding the highly prejudicial Kogut confession, which was inadmissible against Restivo and Halstead, leading to jury confusion. The court clarified its previous ruling in Boyd v. City of New York, holding that merely inadmissible evidence in a criminal case is not irrelevant to probable cause, but rather, the central and potentially prejudicial nature of Kogut's confession warranted a clearer instruction. Regarding evidentiary rulings at the second trial, the court found no abuse of discretion. It affirmed the exclusion of Kogut’s confession and Restivo’s statement implicating Halstead for the fair trial claims because they were not relevant to the planting/suppression theories unless admitted for their truth, which they were not shown to be. The district court also properly admitted plaintiffs’ expert testimony on postmortem root banding (PMRB) under Federal Rule of Evidence 702, not as "scientific knowledge" with certainty on all timing aspects, but as reliable "technical or other specialized knowledge." Factors supporting reliability included the ability to distinguish PMRB from environmental banding, consistency with academic literature, and general acceptance of PMRB as a phenomenon, further supported by the Koch study. Any minor violations of the court’s instruction for experts not to testify to "scientific certainty" were harmless and cured by jury instructions. Conversely, the court affirmed the exclusion of Volpe's proposed defense expert on PMRB, Dr. Kadane, as he lacked the relevant expertise in hair microscopy and forensic science to opine on the issue. Similarly, the admission of plaintiffs’ police practices expert, Russell Fischer, was upheld as he appropriately testified to minimally accepted police practices and departures, rather than defining legal standards or witness credibility. The court found no actual and serious conflict of interest affecting Volpe's trial, distinguishing it from Dunton v. Suffolk County, because Nassau County was not a party facing a Monell claim and had agreed to indemnify Volpe. Crucially, the court held that Volpe was not entitled to a setoff for the $2.2 million each plaintiff received from New York State under the Unjust Conviction and Imprisonment Act (Court of Claims Act Section 8-b). The court determined that federal law was deficient on setoff in this specific context—where a state, immune from Section 1983 liability, settled a no-fault claim, was absent from the trial, and the full amount of loss was unknowable. Applying New York's setoff law (N.Y. Gen. Oblig. Law § 15-108), which aims to prevent non-settling tortfeasors from bearing more than their equitable share, would be inconsistent with Section 1983's federal policies of compensation and, critically, deterrence of abuses of power by internalizing the costs of violating federal rights to the wrongdoer. As the State was never found at fault and Volpe did not seek an instruction on the State’s proportionate share, there was no basis for a proportionate reduction. Even if a setoff were possible for state law claims, the Section 1983 award provided the most complete recovery. Finally, the court affirmed the denial of remittitur, finding the $18 million award per plaintiff ($1 million per year of wrongful incarceration) was not excessive under federal or state standards, and was consistent with other wrongful conviction awards. The court also affirmed the attorney's fees award, deeming the hourly rates and hours billed reasonable given the complexity and length of the litigation.
Concurring in part and dissenting in part - Debra Ann Livingston, Circuit Judge
Yes, the majority is correct on most issues, but the jury award should be set off by the amount plaintiffs already received in their prior settlement with New York State. Judge Livingston argued that federal law is not deficient on the issue of setoff in Section 1983 cases. She asserted that the common law rule against double recovery is a clear, long-standing federal principle applicable in this context. Citing Bender v. City of New York, she contended that where Section 1983 claims parallel state-law tort claims arising from the same operative facts and seeking identical relief (like compensation for wrongful conviction and imprisonment), double recovery is barred. New York's Section 8-b action, under which the state settlement occurred, was designed to compensate for the same harms central to the Section 1983 suit, acting as a "parallel avenue to recovery." Judge Livingston criticized the majority's argument that New York's Eleventh Amendment immunity from Section 1983 suits differentiates this case, arguing that this reasoning could discourage states from providing compensation avenues if no credit is given for such payments. She emphasized that the general rule against double recovery, as seen in United States v. Nucci and EEOC v. Waffle House, Inc., extends across jurisdictional bounds and applies to settlements, regardless of whether the jury considered the settling party's liability. She concluded that the jury's $18 million award was clearly targeted at making the plaintiffs whole for their imprisonment, an injury for which Section 8-b also seeks to compensate. Therefore, common law principles require offsetting the Section 1983 recovery by the amount received from the Section 8-b proceeding to prevent unjust enrichment and afford a single, full recovery.
Analysis:
This case significantly clarifies the interplay between federal civil rights litigation and state-level compensation mechanisms. It establishes a strong precedent that federal policies, particularly the deterrence objective of Section 1983, can override state setoff laws that would reduce the liability of individual state actors who violate constitutional rights, even when states provide independent no-fault compensation. This ensures that constitutional violators internalize the full cost of their wrongdoing, potentially increasing accountability. The decision also provides important guidance for the admissibility of expert testimony under Federal Rule of Evidence 702, affirming that specialized knowledge can be reliable and admissible even without meeting a "scientific certainty" standard for every aspect, provided the court acts as a careful gatekeeper to assess overall reliability. Furthermore, the affirmance of substantial damages for wrongful incarceration underscores the gravity of such injuries and the willingness of courts to uphold significant jury awards in these cases, contributing to the evolving landscape of civil rights remedies.
