Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 1 of 24
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`Plaintiff,
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`15cv2206(DLC)
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`OPINION & ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`HECTOR GARCIA ORTIZ,
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`THE CITY OF NEW YORK, POLICE OFFICER
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`EDWIN VAZQUEZ, AND POLICE OFFICER
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`STEPHANIE HANNA,
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`-------------------------------------- X
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`APPEARANCES:
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`For the plaintiff:
`Ameer Benno
`410 E. Jericho Turnpike
`Mineola, NY 11501
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`For the defendants:
`Melanie Speight
`Corporation Counsel of the City of New York
`100 Church Street
`New York, NY 10007
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`Defendants.
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`DENISE COTE, District Judge:
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`This 42 U.S.C. § 1983 case was tried to verdict before a
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`jury in December 2017. At the conclusion of the four-day trial,
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`the jury returned a mixed verdict. The jury found in favor of
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`defendants with respect to the plaintiff’s unlawful seizure
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`claim. The jury found in favor of plaintiff with respect to the
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`excessive force claim, and awarded the plaintiff $118,000 in
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`compensatory damages. Defendants have moved for post-verdict
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 2 of 24
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`relief. For the following reasons, judgment as a matter of law
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`is entered in the defendants’ favor.
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`BACKGROUND
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`Plaintiff Hector Garcia Ortiz (“Ortiz”) commenced this
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`action on March 24, 2016 against the City of New York (“City”)
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`and John Does 1-5. Defendants Officer Edwin Vazquez (“Vazquez”)
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`and Officer Stephanie Hanna (“Hanna”) were named in Ortiz’s
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`Amended Complaint, filed on March 21, 2006. He alleged claims
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`of false arrest and imprisonment in violation of 42 U.S.C. §
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`1983 and New York law, the use of excessive force in violation
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`of 42 U.S.C. § 1983, assault and battery in violation of New
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`York laws and negligence and gross negligence. On November 30,
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`2016, summary judgment was granted in favor of defendants as to
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`the plaintiff’s claims of negligence and his claim of excessive
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`force against Hanna. At a pretrial conference held on July 6,
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`2018, the parties agreed that the City was a defendant only with
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`respect to respondeat superior liability, if applicable. Trial
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`began on December 11, 2017, and the case was submitted to the
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`jury on December 14. Ortiz withdrew his battery claim prior to
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`the jury’s deliberations.
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`2
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 3 of 24
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`At trial, the plaintiff asked the jury to accept the
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`following version of events.1 He had had five or six beers at a
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`friend's house on June 1, 2014. As he was walking alone on his
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`way home in the early evening, Vazquez stared at him intently.
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`Ortiz walked up to Vazquez, held up his hands and shouted
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`"what's happening" at the officer.
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`As Ortiz walked away, Vazquez viciously attacked him from
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`behind without warning. Vazquez grabbed his right hand,
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`twisting it behind his back, and ferociously kicked at the
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`inside of his right knee, cracking a knee bone and sending Ortiz
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`to the ground. Vazquez then descended on Ortiz, sitting on his
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`back, grinding Ortiz's face into the pavement and driving his
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`knee into Ortiz's back. Vazquez then tightly handcuffed Ortiz,
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`wrenching his wrist. Hanna and Vazquez called for an ambulance
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`and sent Ortiz to St. Luke's Hospital. He contends that surgery
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`will be required to mend a medial meniscus tear in his knee, for
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`his back and his wrist. He may also need knee replacement
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`surgery.
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`The hospital records reflect that Ortiz was ambulatory when
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`he arrived, but intoxicated, agitated, abusive, and a danger to
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`hospital staff. Hospital staff sedated Ortiz and treated him
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`for his intoxication. The chief complaint on his triage notes
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`1 This version of events is based on Ortiz’s testimony at trial.
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`3
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 4 of 24
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`from his arrival at St. Luke’s on June 1 was "intox." The next
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`day, after he was initially set to be discharged from the
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`hospital, a tibial plateau fracture injury to his knee was
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`discovered after he complained of pain as he walked. He was
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`later discharged with instructions to “not put any weight” on
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`his left leg, which had been bound in a cast. The medical
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`records do not reflect any injury to the knee's meniscus, to the
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`back, or to the wrist.
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`The two defendant officers, Hanna and Vazquez, provided the
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`jury with an entirely different description of the events of
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`June 1. Hanna and Vazquez are patrol officers and were handing
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`out community safety fliers to store owners along St. Nicholas
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`and Lenox Avenues in upper Manhattan, seeking information about
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`a recent BB gun shooting. Over the course of forty or so
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`minutes they encountered Ortiz four different times in a two or
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`three block stretch of their route. Vazquez first saw Ortiz
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`emerging from a liquor store. Twice the officers saw Ortiz
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`slumped against the side of a building with a companion standing
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`next to him. Each time they approached Ortiz and told him to
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`get up and move along. They saw his companion help him get up,
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`but did not watch as they moved away. They never saw him
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`4
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 5 of 24
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`walking steadily on his own. Finally, they saw Ortiz lying down2
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`and his companion walking away further down the sidewalk, saying
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`"I have had enough."
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`When Officer Hanna approached Ortiz on this final occasion,
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`she discovered that he was highly intoxicated. When she spoke
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`to him, he appeared to be sleeping, but as he livened, she
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`realized that he was heavily intoxicated: he was incoherent and
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`smelt of alcohol. When defendants told Ortiz to get up off the
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`ground, Ortiz became more and more agitated and angry. He got
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`up, without assistance, and tried to stagger away. At some
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`point, Hanna called for an ambulance. She decided to send Ortiz
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`to a hospital for his own safety and the safety of others.
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`Hanna could not recall if she called the ambulance immediately
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`after perceiving Ortiz’s level of intoxication, or if she did so
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`after he attempted to walk away from her and Vazquez,
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`staggering. Hanna stood in front of Ortiz to prevent him from
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`leaving. Vazquez stood on Ortiz’s other side, so that Ortiz was
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`between the two officers. Ortiz began to stumble in circles in
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`between the officers, getting angrier and angrier, hurling
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`abusive comments at them and at himself. At that point, Hanna
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`2 Hanna testified that they found Ortiz lying on the street,
`right off the sidewalk pavement, between two parked cars.
`Vazquez testified that they found him lying on the sidewalk
`pavement.
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`5
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 6 of 24
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`used her radio to ask for an estimated time of arrival of the
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`ambulance.
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`Ortiz continued to pace around in a tight area, between the
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`officers, spouting expletives and shouting. At some point he
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`raised his fists in the air. He threw a speaker he was holding
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`to the ground with such force that it broke. He was not
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`addressing the officers directly, nor did he throw the speaker
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`at them. According to Hanna, “he was in his own space ranting
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`and raving.” Hanna again called for an ambulance and was told
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`that there would be a wait before it arrived. It was then that
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`the officers decided to handcuff Ortiz for his safety.
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`The officers grabbed Ortiz’s arms, handcuffed him, placed
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`their hands on his shoulders, and brought him down to a seated
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`position on the pavement. He did not resist the handcuffing,
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`but, once he was on the ground, he shouted and kicked the air
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`with one of his legs, tumbling over to his side. (Officer Hanna
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`likened him to a turtle who has been turned over on his shell
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`and thrashes his limbs to get up.)
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`The ambulance finally arrived, and the officers accompanied
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`Ortiz to the hospital. Hanna rode in the ambulance with Ortiz,
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`while Vazquez drove the police vehicle. When Ortiz arrived at
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`the hospital, he was placed in the trauma room, an area where
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`patients who need immediate attention are placed. He was so
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 7 of 24
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`agitated and combative that medical staff sedated him. It was
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`only safe to remove the handcuffs after he had been sedated.
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`Ortiz's treating physician, Dr. Gabriel Dassa, testified on
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`his behalf at trial. He first saw Ortiz in late October 2014,
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`about five months after the incident. Ortiz only went to Dr.
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`Dassa for an evaluation after he had filed a notice of intent to
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`sue the officers and the City of New York. Plaintiff's counsel
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`had referred Ortiz to Dr. Dassa. The doctor explained to the
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`jury that the fracture to the knee could only have been caused
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`by extreme force -- like a blow -- from the inside of the leg,
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`causing the knee to bend outwards. He explained that such an
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`injury could not result from an accidental fall. Dr. Dassa also
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`testified that Ortiz suffered from a “tear of the medial
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`meniscus,” the cartilage in the knee, and concluded that the
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`force that caused the fracture also caused that tear. He also
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`treated Ortiz for a wrist injury, which he testified could only
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`be the result of a significant amount of force, and observed
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`disc herniations in Ortiz’s lower back, which he explained could
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`have been caused by trauma.
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`Throughout the trial, the Court sought to clarify
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`plaintiff’s position on the relationship between the claims of
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`excessive force and illegal seizure. On December 12, counsel
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`for the plaintiff was asked the following:
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 8 of 24
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`So the plaintiff is only seeking damages, is only claiming
`there was an excessive use of force and seeking damages as
`a result of that excessive use of force if the jury finds
`that he was unlawfully seized on June 1st. If they find --
`if they believe the defendants that they placed handcuffs
`on the plaintiff after they found him, encountered him
`lying on the pavement, the plaintiff is not seeking damages
`for an excessive use of force. Do I have this straight?
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`Counsel for the plaintiff responded, “Yes, your Honor.”
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`The next day, however, plaintiff took a different position:
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`I would just submit to your Honor that there is not a
`binary choice that the jury has in accepting plaintiff’s
`account in total or the defendant’s. You were correct if
`they believe his account that must . . . mean they
`disbelief [sic] the defendant. If they believe the
`defendants’ account they’re obviously [unintelligible
`reporter code] the plaintiffs. As your Honor is aware, the
`jury can find some common ground in-between. They can take
`some, credit some testimony from the defense and some from
`the plaintiff and they may find that, in fact, the truth
`lies somewhere in between.
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`When the defendants acknowledge that they brought Mr.
`Vazquez to the ground, they claim he was in handcuffs and
`they had to bring him down to the ground, perhaps they find
`at that moment in time, despite the fact placing him in
`handcuffs was proper, they could it was lawful but they did
`that with a degree of excessive force. So it is not
`mutually exclusive, the false arrest and the excessive
`force. As I understood you earlier and if I misunderstand,
`I apologize, but I had the impression that you were viewing
`this more as sort of a binary, one or the other. I think
`it could potentially be, the jury finds there is -- the
`truth lies . . . in-between.
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`A draft jury charge was presented to counsel on December
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`13. The draft jury charge included the presentation of an
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`“Additional Question,” after the jury was charged on the
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`elements of unlawful seizure:
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`8
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 9 of 24
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`As you are aware, the plaintiff contends that Officer
`Vazquez attacked and then handcuffed him as he was walking
`down the street. The defendants contend that they
`handcuffed him after they saw Mr. Ortiz down on the
`pavement. If you find that one or both of the defendants
`unlawfully seized the plaintiff on June 1 2014, there is an
`additional question you must answer.
`Did the defendants prove, by a preponderance of the
`evidence, that they handcuffed the plaintiff after the
`officers observed him down on the pavement on June 1, 2014?
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`At a charging conference on the morning of December 14,
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`plaintiff’s counsel objected to the additional question
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`“entirely.” The Court explained that the question was included
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`“because of the qualified immunity defense.”
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`At the close of evidence on December 13, defendants moved
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`for judgment as a matter of law. With respect to the excessive
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`force claim, defendants argued that
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`no reasonable juror would believe plaintiff’s version of
`events. There has been no evidence put forth that on the
`defendants’ version of events any type of excessive force
`was used [on] the plaintiff. [According to] defendants’
`version at most they handcuffed him and sat him down on the
`ground . . . .
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`The defendants added, “[i]n any case, the officers would be
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`entitled to qualified immunity.” Decision on the motion was
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`reserved, and, on December 14, the jury was charged and given a
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`Special Verdict Form. The Special Verdict Form included the
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`“Additional Question” from the charge, but the jury was
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`instructed to answer that question only if it found that either
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`9
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 10 of 24
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`or both defendants unlawfully seized the plaintiff.3 The jury
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`was not instructed to answer the question if it found that
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`Vazquez used excessive force against Ortiz.
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`On December 15, the jury returned its verdict. The jury
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`returned a verdict in favor of defendants with respect to the
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`the unlawful seizure claim. The jury returned a verdict in
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`favor of Ortiz with respect to his unlawful force claim against
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`Vazquez, and awarded Ortiz compensatory damages totaling
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`$118,000. The damages total reflected an award of $30,000 for
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`past physical pain and suffering, $10,000 for future pain and
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`suffering, and $78,000 for future medical expenses. The jury
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`awarded Ortiz no damages for “conscious pain and suffering from
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`the time of his first encounter with the defendants until the
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`time he was placed in the ambulance” and no punitive damages.
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`Before returning its verdict, the jury submitted multiple
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`notes to the Court. One note requested the “[t]ranscript of Dr.
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`Dassa's estimate for all future surgical / medical costs for
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`31. Did the plaintiff establish by a preponderance of the
`evidence that he was unlawfully seized by
`a. Officer Vazquez?
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`YES _____
`b. Officer Hanna?
`NO _____
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`YES _____
`[Only answer sub-question i. if you answered “yes” for
`either of the defendants for question 1.]
`i. Did the defendants prove, by a preponderance of the
`evidence, that they handcuffed the plaintiff after the
`officers observed him down on the pavement on June 1, 2014?
`YES _____
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`NO _____
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`NO _____
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`10
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 11 of 24
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`plaintiff.” Dr. Dassa testified that he believed the cost of
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`surgery for Ortiz’s wrist injury would be between $30,000 and
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`$35,000; the cost of spine surgery for a herniated disc would be
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`between $75,000 and $100,000; and the cost of a total knee
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`replacement would be between $65,000 and $70,000.
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`After the jury returned its verdict, the Court spoke with
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`counsel, explaining that it would pose the Additional Question
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`to the jury in a Supplemental Verdict Form.
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`So counsel, as you all remember, the plaintiff shifted its
`position at one point as to whether or not the excessive
`force charge was tethered or not to the false arrest claim,
`and I prepared this verdict sheet and talked through these
`issues at the time at which plaintiff’s counsel said they
`were tethered.
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`The next day, plaintiff’s counsel clarified that he
`believes they were not tethered and didn’t want to submit
`them as tethered to the jury. Therefore, the verdict sheet
`that the jury filled out only required them to answer the
`factual question if they found there was a false arrest.
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`Given that the legal claims became untethered, they have
`not been instructed to answer the factual question. I need
`them to answer the factual question, and therefore, I plan
`to bring them in, give them this supplemental verdict form,
`ask them to answer that single question.
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`The Court added that it believed that the jury’s verdict
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`indicated that it had rejected the plaintiff’s version of
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`events, and that the Supplemental Verdict Form would clarify the
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`jury’s verdict.
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`I think, from the verdict the jury has returned, one could
`infer quite comfortably from it that the jury has not found
`the plaintiff’s version of facts to have been credible and
`that they find that any excessive force that could be said
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`11
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 12 of 24
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`to have occurred here only occurred at the time the
`defendants were approaching the plaintiff after they
`observed him down on the pavement.
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`Plaintiff’s counsel objected to the use of the Supplemental
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`Verdict Form. Counsel argued that the question was “irrelevant
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`to excessive force and it bears on qualified immunity. There’s
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`an objective standard for excessive force. Under qualified
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`immunity, the inquiry isn’t relevant to that.” Plaintiff’s
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`counsel declined to offer alternative wording for the
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`Supplemental Verdict Form. Defense counsel did not object.
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`Subsequently, the jury was presented with the Supplemental
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`Verdict Form, asking “Did the defendants prove, by a
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`preponderance of evidence, that they handcuffed the plaintiff
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`after the officers observed him down on the pavement on June 1,
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`2004?” When the Supplemental Verdict Form was presented, the
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`jury was told the following:
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`We have just one brief question for you to answer. I'm
`going to give you another verdict form with that one
`question on it. It's a question you've seen before. I
`should have had you answer it already, but you didn't have
`to because of the sequence of questions.
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`But let me begin by asking you to turn to page 11 of the
`jury charge. And I'm just going to read this to you.4 The
`heading is Additional Question.
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`"As you are aware, the plaintiff contends that Officer
`Vazquez attacked and then handcuffed him as he was walking
`down the street. The defendants contend that they
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`4 Each member of the jury had been given a copy of the jury
`charge to read along as the Court read it aloud to them. They
`retained their copies during deliberations.
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`12
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 13 of 24
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`handcuffed him after they saw Mr. Ortiz down on the
`pavement. If you find that one or both of the defendants
`unlawfully seized the plaintiff on June 1, 2014, there is
`an additional question you must answer: Did the defendants
`prove, by a preponderance of the evidence, that they
`handcuffed the plaintiff after the officers observed him
`down on the pavement on June 1, 2014?"
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`Now my charge only requires you to respond to that question
`if you had found there was an unlawful seizure. I realize
`I should have asked you to respond to that question even if
`you found there was no unlawful seizure but there was an
`unlawful use of force, okay? So it's the same question,
`the same contrasting set of facts.
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`
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`After brief deliberations, the jury returned the Supplemental
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`Verdict Form. The jury answered, “Yes.” The jury was
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`dismissed.
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`After the jury was dismissed, the defendants moved, in
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`light of the jury's verdict and the jury's response to the
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`Supplemental Verdict Form to “set aside the verdict with respect
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`to force with respect to Officer Vazquez, and ask[ed] that the
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`Court enter judgment as a matter of law in favor of Officer
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`Vazquez.” The defendants renewed their Rule 50 motion, and
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`added that they intended as well “to seek qualified immunity.”
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`The defendants were instructed to submit the request in writing.
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`The defendants’ motion for judgment as a matter of law became
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`fully submitted on February 23, 2018.
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`13
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 14 of 24
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`DISCUSSION
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`The standard for granting judgment as a matter of law under
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`Rule 50, Fed. R. Civ. P., is well-established. “Judgment as a
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`matter of law may not properly be granted under Rule 50 unless
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`the evidence, viewed in the light most favorable to the opposing
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`party, is insufficient to permit a reasonable juror to find in
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`h[er] favor.” Stevens v. Rite Aid Corp., 851 F.3d 224, 228 (2d
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`Cir. 2017) (citation omitted). This standard “mirrors the
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`standard for” summary judgment under Rule 56, Fed. R. Civ. P,
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`except based on the trial record rather than the summary
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`judgment record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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`250 (1986); see Piesco v. Koch, 12 F.3d 332, 341 (2d Cir. 1993).
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`Rule 50 “imposes a heavy burden on [the] movant, who will
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`be awarded judgment as a matter of law only when a party has
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`been fully heard on an issue during a jury trial and the court
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`finds that a reasonable jury would not have a legally sufficient
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`evidentiary basis to find for the party on that issue.” Cash v.
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`Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (citation
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`omitted). Rule 50’s “burden is particularly heavy where . . .
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`the jury has deliberated in the case and actually returned its
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`verdict in favor of the non-movant.” Id. (citation omitted).
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`In such circumstances, a court may set aside the verdict only
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`if, viewing the evidence in the light most favorable to the non-
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`movant, “there exists such a complete absence of evidence
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 15 of 24
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`supporting the verdict that the jury’s findings could only have
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`been the result of sheer surmise and conjecture, or the evidence
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`in favor of the movant is so overwhelming that reasonable and
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`fair minded persons could not arrive at a verdict against it.”
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`Id. (citation omitted).
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`In reviewing a Rule 50 motion, a court “must give deference
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`to all credibility determinations and reasonable inferences of
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`the jury, and may not weigh the credibility of witnesses or
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`otherwise consider the weight of the evidence.” Brady v. Wal-
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`Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008) (citation
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`omitted). Judgment as a matter of law should be granted only if
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`the moving party shows “such a complete absence of evidence
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`supporting the verdict that the jury's findings could only have
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`been the result of sheer surmise and conjecture.” In re Joint
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`E. & S. Dist. Asbestos Litig., 52 F.3d 1124, 1131 (2d Cir.
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`1995).
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`“[J]udgment may not be entered pursuant to inconsistent
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`special verdicts.” Lavoie v. Pacific Press & Shear Co., A Div.
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`of Canron Corp., 975 F.2d 48, 53 (2d Cir. 1992) (citation
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`omitted). Rule 49(b) of Federal Rules of Civil Procedure
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`permits a jury to make written findings of fact and to enter a
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`general verdict. See Fed. R. Civ. P. 49(b). Under Rule 49(b)
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`“[w]hen answers to special interrogatories are . . .
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`inconsistent with the general verdict, the court may either
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 16 of 24
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`enter judgment in accordance with the interrogatories or return
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`the issue to the jury for further consideration.” Armstrong ex
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`rel. Armstrong v. Brookdale Univ. Hospital and Medical Center,
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`425 F.3d 126, 135 (2d Cir. 2005). “Rule 49(b) does not,
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`however, authorize the court to enter judgment based on the
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`general verdict despite answers to interrogatories that conflict
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`with that verdict.” Id. A “district judge is in the best
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`position to determine whether the [jury’s] answers reflect
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`confusion or uncertainty.” Kerman v. City of New York, 261 F.3d
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`229, 244 (2d Cir. 2001) (citation omitted).
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`“[A] party waives its objection to any inconsistency in a
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`jury verdict if it fails to object to the verdict prior to the
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`excusing of the jury.” Kosmynka v. Polaris Industries , Inc.,
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`462 F.3d 74, 83 (2d Cir. 2006) (citation omitted). But,
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`[T]here is no authority to support [the] contentions that,
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`when faced with an inconsistent verdict, the onus is on the
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`dissatisfied party to ensure that the court keep the
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`jury . . . . A litigant preserves the issue . . . by
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`exposing the inconsistency before the jury is dismissed, so
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`that the court has available to it the option of re-
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`submitting the questions to the jury after some further
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`instruction.
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`
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`Id. at 83-84 (emphasis in original).
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`
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`1. The Jury Rejected Ortiz’s Version of Events.
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`Judgment as a matter of law in favor of Vazquez on the
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`excessive force claim is appropriate here. As made clear by
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`their verdict, including their answer to the supplemental
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 17 of 24
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`question, the jury rejected plaintiff's version of events. In
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`rejecting Ortiz’s unlawful seizure claims, and in answering
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`“Yes” to the question on the Supplemental Verdict Form, the jury
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`found both that there was no unlawful seizure by either officer
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`and that the officers had not seized Ortiz as he was walking
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`along his way home, but only after they had encountered him
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`lying on the pavement. This precludes a finding that Vazquez
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`attacked him as he walked along the sidewalk and used excessive
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`force in doing so. Based on the evidence at trial, a reasonable
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`juror could find either that there was both an unlawful seizure
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`and excessive force in making that seizure, or that there was
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`neither.5 A verdict finding no seizure but nevertheless
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`excessive force is wholly inconsistent with the evidence and
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`with the respective cases the parties presented.
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`The jury’s refusal to award Ortiz damages for any conscious
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`pain and suffering provides further support for this conclusion.
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`The jury awarded Ortiz no damages for “conscious pain and
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`5 The plaintiff is correct that, in theory, unlawful seizure and
`the use of excessive force need not be inextricably linked.
`Here, however, the plaintiff’s version of events made them so.
`Ortiz’s testimony at trial, and the evidence he offered, was
`that the altercation between him and Vazquez was so sudden and
`quick that any unlawful seizure and use of excessive force were
`simultaneous: according to his testimony, as he walked away,
`Vazquez grabbed him, attacked him from behind, forced him to the
`ground, and placed him in handcuffs. Ortiz could not recall
`precisely when handcuffs were placed on him but that it was
`shortly after the attack, when Vazquez was using force, holding
`him down, and driving his knee into Ortiz’s back.
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 18 of 24
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`suffering from the time of his first encounter with the
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`defendants until the time he was placed in the ambulance.” It
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`follows, then, that the jury believed the defendants’ testimony
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`that they encountered Ortiz lying on the ground, intoxicated
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`beyond full comprehension of his surroundings. This justified
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`their seizure of him as necessary for his protection and the
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`safety of the community due to his intoxication. At such a
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`degree of intoxication, Ortiz could not possibly have
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`experienced conscious pain and suffering.6
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`It is true that Ortiz had a tibial plateau fracture to his
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`left knee on June 2. Dr. Dassa testified that the injury could
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`only have occurred by use of direct applied force, because
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`falling could not cause that particular kind of damage. But,
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`without Ortiz’s description of an unprovoked attack by Vazquez,
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`there is no basis in the evidence to attribute that injury to
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`Vazquez. There is no evidence that any unreasonable force of
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`that kind was ever used by either officer after they encountered
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`Ortiz lying abandoned by his companion. Ortiz did not call any
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`witnesses to corroborate his story, despite the fact that the
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`6 The jury also denied the plaintiff any punitive damages, which
`they were instructed were appropriate if they believed “that
`[Vazquez] should be punished for conduct that was motivated by
`an evil motive or intent, or that involved callous disregard or
`indifference to Mr. Ortiz’s rights.” The unprovoked vicious
`attack described by Ortiz would have, if credited, supported an
`award of punitive damages.
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 19 of 24
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`events occurred in broad daylight in the middle of a busy area,
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`St. Nicholas Avenue, in front of multiple storefronts. There is
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`simply an absence of evidence of how the injury occurred. It
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`would be entirely speculative to attribute it to Vazquez.
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`Ortiz argues that Vazquez’s Rule 50 motion is deficient
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`because defense counsel never specifically articulated the basis
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`for a motion for judgment as a matter of law on the claim of
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`excessive force. He argues that, until briefing, defendants
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`only argued that plaintiff’s version should be rejected, not
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`that there was “no evidence of excessive force adduced at
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`trial.” This argument is unavailing. First, when moving for
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`judgment as a matter of law on the excessive force claim,
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`defendants argued that “no reasonable juror would believe
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`plaintiff’s version of events.” There is no meaningful
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`distinction between an argument that plaintiff’s version of
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`events was incredible and an argument that there was no evidence
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`of force adduced at trial. In this context, these are the same
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`argument, because they both support the broader, principal
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`point, which is that no reasonable jury could find that Vazquez
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`attacked Ortiz from behind, using excessive force.
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`Second, even if there were a meaningful distinction, when a
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`party does not properly “specify the judgment sought and the law
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`and facts that entitle the movant to the judgment,” Fed. R. Civ
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`P. 50(a)(2), a court may nevertheless grant a Rule 50 motion in
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 20 of 24
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`order to prevent “manifest injustice.” Fabri v. United Techs.
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`Int’l Inc., 387 F.3d 109, 119 (2d Cir. 2004). Here, entering a
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`general verdict contrary to the evidence the jury found credible
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`would create a manifest injustice.
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`2. The Jury Returned an Inconsistent Verdict.
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`
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`The jury answered a special interrogatory that was
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`inconsistent with the general verdict of excessive force, and
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`thus a judgment consistent with the special interrogatory may be
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`entered pursuant to Rule 49. That judgment is for defendant
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`Vazquez.
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`First, the answers on the Special Verdict Form were
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`inconsistent with each other: the jury could not have reasonably
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`found for the defendants on the unlawful seizure claim, but for
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`the plaintiff on the excessive force claim. Next, the jury was
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`presented with the Supplemental Verdict Form to clarify their
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`factual findings. In answering the question on the Supplemental
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`Verdict Form -- that the defendants proved, by a preponderance
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`of the evidence, that they handcuffed the plaintiff after the
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`officers observed Ortiz down on the pavement on June 1, 2014 --
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`the jury demonstrated that they did not believe, based on the
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`evidence and testimony presented at trial, that Vazquez had
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`attacked Ortiz from behind as he walked along St. Nicholas
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`Avenue, using excessive force. The answer to the factual
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`interrogatory on the Supplemental Verdict Form was inconsistent
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`20
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`Case 1:15-cv-02206-DLC Document 151 Filed 04/27/18 Page 21 of 24
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`with the general verdict that Vazquez was liable for the use of
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`excessive force.
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`3. Vazquez Is Entitled to Qualified Immunity.
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`Vazquez has moved in the alternative for qualified immunity
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`on the excessive force claim. “Qualified immunity attaches when
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`an o