USDC IN/ND case 3:08-cv-00503-RL-CAN document 353 filed 11/06/15 page 1 of 8
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROMAN FINNEGAN, et al.,
Plaintiffs,
v.
LAUREL MYERS, et al.,
Defendants.

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CASE NO. 3:08-CV-00503-RL-CAN

MEMORANDUM IN SUPPORT OF STATE DEFENDANTS’ RULE 59
MOTION TO ALTER OR AMEND JUDGMENT BY REDUCING DAMAGES
The jury awarded Plaintiffs in this case over $31 million dollars in
compensatory damages, an award without rational connection to the evidence
Plaintiffs presented at trial and disproportionate to verdicts in cases at all
analogous. Accordingly, State Defendants Laurel Myers, Regina McAninch, Reba
James, and Jennifer McDonald, ask this Court to exercise its discretion and reduce
the award.
I.

Legal basis for this Court to remit damages

A trial court has discretion to review and lower a jury award upon a party’s
remittitur request. Adams v. City of Chicago, 798 F.3d 539, 542 (7th Cir. 2015). A
court may find a jury award excessive if an award is “monstrously excessive;” if
“there is no rational connection between the award and the evidence, indicating
that [the award] is merely a product of the jury’s fevered imaginings or personal
vendettas;” or if the award is incomparable to awards made in similar cases. Id. at
543. Put another way, a court may “vacate the jury’s verdict if the award is either

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‘monstrously excessive,’ ‘shocks the judicial conscience,’ has ‘no rational connection
to the evidence,’ or clearly appears to be the result of passion and prejudice.’” Fall v.
Indiana Univ. Bd. of Trustees, 33 F.Supp.2d 729, 744 (N.D.Ind. 1998). See, e.g.,
McNabola v. Chicago Transit Auth., 10 F.3d 501, 516 (7th Cir.1993); Levka v. City
of Chicago, 748 F.2d 421, 424-425 (7th Cir.1984).
There is an upper limit to allowable damages. Avitia v. Metropolitan Club of
Chicago, Inc., 49 F.3d 1219, 1229 (7th Cir.1995). Here, the jury went beyond that
upper limit, and the Court should bring the verdict down to that allowable limit.
Even when looking at the trial record as a whole in the light most favorable to the
verdict, as it should be considered upon a request for a remittitur (Id.), the jury’s
award does not withstand scrutiny and is the “product of passion and prejudice.”
Fall, 33 F.Supp.2d 744.
II.

The jury awarded excessive damages that this Court should
reduce.

As noted above, courts recite three touchstones for analysis of whether a jury
award is excessive—whether the award was “monstrously excessive,” whether the
award was without rational connection to the evidence, and whether the award is
out of proportion to awards in similar cases. In practice, though, courts usually
collapse the first two factors into one because “‘monstrously excessive’ is a rather
vague standard for review.” G.G. v. Grindle, 665 F.3d 795, 799 (7th Cir. 2011)
(internal punctuation and citations omitted). In other words, an award is
monstrously excessive if it is without rational connection to the evidence.

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After over two weeks of an emotionally-charged trial, the jury awarded
damages based largely on emotion1 rather than a dispassionate analysis of the
evidence. In cases involving damage awards for emotional anguish, remittitur is a
common feature. O'Sullivan v. City of Chicago, 474 F. Supp. 2d 971, 974 (N.D. Ill.
2007). Aside from a casual reference to Roman Finnegan’s loss of salary (while
quickly passing over the fact that he was reimbursed for lost pay), there was no
evidence presented to show an actual compensable loss. Rather, Plaintiffs relied
entirely on a request for an award for emotional pain and suffering. Plaintiffs
presented no evidence of medical costs, lost income, or other compensatory or
special damages. But even when awarding damages for emotional pain and
suffering, the jury must base its award “on evidence and not on speculation or
guesswork,” as this Court instructed the jury. Seventh Circuit Pattern Instruction
7.23. Without a doubt, emotions play a part in any jury deliberations on a subject as
fraught with sentiment as in this case. And it showed in the jury’s award. Here the
number (or, more accurately, numbers, since the damages awarded were for
multiple—and at times, overlapping—causes of action) for damages bears no
relationship with the evidence.
While there “is no exact standard for fixing damages for pain and suffering,”
a jury “must use sound discretion in fixing an award of damages.” Deloughery v.
City of Chicago, No. 02 C 2722, 2004 WL 1125897, at *5 (N.D. Ill. May 20, 2004)
aff'd, 422 F.3d 611 (7th Cir. 2005) (quoting Zurba v. United States, 247 F.Supp.2d

The jury’s award is also likely the result of putting themselves in the shoes of Plaintiffs and,
consequently, an improper departure from neutrality.
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951, 961 (N.D. Ill. 2001), citing 3 E. Devitt, C. Blackmar & M. Wolff, Federal Jury
Practice and Instructions § 85.02 (1987 & Supp.2000); Fifth Circuit Pattern Jury
Instructions (Civil) §§ 15.4 & 15.2 (1999)).
The verdict demonstrates the lack of rational connection between the jury’s
verdict and the evidence presented. For example, the jury award Lynnette and
Roman Finnegan a total of $1,250,000 for a violation of their First Amendment
rights. But this has no connection with any independent damages the Finnegans
may have suffered. In other words, any damages awarded for this violation merely
duplicates awards for alleged violations under the Fourth or Fourteenth
Amendment. Plaintiffs presented no evidence that Roman or Lynnette in any way
stifled their speech through fear of retaliation. In fact, Roman testified that he had
tried to publicize his grievances further. Thus, any award here is unwarranted
because there is no evidence of any damages that stand independent of other
damages.
The jury awarded a total of $650,000 for alleged violation of the Finnegans’
Fourth Amendment rights when Department of Child Services’ employees
interviewed the parents and the children the night Jessica died. The only apparent
evidence that supported damages was presented by Tabitha, who testified that she
hated Regina McAninch because no one from DCS told her that Jessica had died.
Even if that was a mistake, the children soon learned (appropriately) from Roman
and Lynnette what happened to Jessica. The defendants presented undisputed
evidence that the children thought they were treated politely that night, and Roman

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testified that he understood why DCS employees would question the parents and
the children. No evidence was presented that supported an award of $650,000.
The jury awarded a total of $5,250,000 for the removal of the Tabitha and
Katelynn from the Finnegan home in November 2006. This award is out of
proportion with the evidence presented. Roman Finnegan testified that, after seeing
Dr. Cavanaugh’s autopsy, he understood why DCS employees would do what they
did, and indeed, he was surprised that he was not arrested right then. Even if
Laurel Myers and Regina McAninch did not present all the evidence to the CHINS
judge, Roman and Lynnette were represented by counsel shortly after Tabitha and
Katelynn were removed, and accordingly had an opportunity to present their own
evidence to the CHINS judge. Even with that opportunity, the CHINS judge still
found (at least twice) that Tabitha and Katelynn’s removal was appropriate. Thus,
any liability would be based on something that a judge found to be reasonable
evidence, and the damages awarded here should be based on only a short period of
time because Plaintiffs had an opportunity to present any evidence to the CHINS
court shortly after Tabitha and Katelynn were removed. Accordingly, the award for
Tabitha and Katelynn’s removal should be reduced.
The jury awarded Plaintiffs $8,200,000 in damages for violation of the
plaintiffs’ procedural due process rights. The jury awarded another $16,000,000 for
violation of substantive due process rights. The plaintiffs presented no evidence
that would support damages of this magnitude, a total amount of $24,200,000 for
due process violations. This amount includes $1,000,000 against Jennifer McDonald

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for Johnathon, when Johnathon himself testified that he had already been
estranged from his family. The only explanation2 for this is that the jury double
counted damages for both substantive and procedural damages. Accordingly, the
Court should reduce the damages awarded for any due process violations.
Granted, this case is a civil rights case and a “jury’s verdict is entitled to
more weight than in the ordinary case, because of the inherent difficulty in giving
such rights a dollar value,” but a court still has discretion to lower a jury’s verdict.
Collum v. Butler, 288 F. Supp. 918, 919-20 (N.D. Ill. 1968) aff'd, 421 F.2d 1257 (7th
Cir. 1970). Support for a reduction in an award may be justified when two verdicts
are significantly lower than what the jury awarded. Id. There is little guidance for
what the proper damages in this case would be, but what little guidance exists
points dramatically downward. In Cole vs. County of Los Angeles, 2012 WL 8718253
(W.D. Cal 2012), the Los Angeles Department of Children and Family Services
responded to a report of possible physical abuse and neglect of the plaintiff mother’s
son while he was in the care of his father. DCFS placed the children into custody
without the mother’s knowledge or consent and without any proper authorization
(unlike in this case where DCS employees acted after securing court approval) or
reasonable cause for removal. The physicians who examined the child found no
physical signs of abuse and never made a specific diagnosis regarding child abuse.
The children were detained for about seven weeks. A jury returned a verdict of
Actually, the reasonable explanation for the jury’s verdict is that the jury disregarded the Court’s
limiting instructions with respect to Judge Blankenship’s decision (that the decision should be
considered only to demonstrate the procedural background of the case) and looked to the decision for
the truth of the matter. That the jury permitted Judge Blankenship’s decision to usurp its own factfinding role is betrayed by the fact that the verdict tracks Judge Blankenship’s decision.
2

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$500,000.00. In Duran v. City Of Chicago, 23 Nat. J.V.R.A. 10:22, 2008 WL 9355823
(Ill.Cir.Ct.), City of Chicago Department of Child and Family Services’ employees
removed an infant from a home for almost a year. There, the jury returned a verdict
totaling $4,200,000. None of these verdicts come close to the verdict in this case.
Accordingly, the Court should reduce the damages awarded in this case.
III.

Conclusion

The jury returned shockingly high damages, which do not reflect the evidence
before the jury. Thus, the award was monstrously excessive, without a rational
connection to the evidence, and comparable cases support the conclusion that the
Court should reduce the damages. Therefore, Defendants respectfully request the
Court to reduce the over $31 million dollar award of damages in this case.

Respectfully submitted,
GREGORY F. ZOELLER
Indiana Attorney General
Atty. No. 1958-98
By:

OFFICE OF THE INDIANA ATTORNEY GENERAL
Indiana Government Center South, 5th Fl.
302 West Washington Street
Indianapolis, IN 46204-2770
Telephone: (317) 232-6292
Facsimile: (317) 232-7979
E-mail: Jefferson.Garn@atg.in.gov
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/s/ Jefferson S. Garn______
Jefferson S. Garn
Deputy Attorney General
Atty No. 29921-49

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CERTIFICATE OF SERVICE
I hereby certify that on November 6, 2015, I electronically filed the foregoing
document with the Clerk of the Court using the CM/ECF system. Notice of this
filing will be sent to counsel of record by operation of the Court’s electronic filing
system. Parties may access this filing through the Court’s system.
Ronald J. Waicukauski
PRICE WAICUKAUSKI & RILEY LLC
rwaicukauski@price-law.com

Richard A. Waples
WAPLES & HANGER
richwaples@aol.com

Kevin C Tankersley
TANKERSLEY LAW OFFICE
kevin@tanklaw.com

Heather M. Kirkwood PHV
hkirkwood2@comcast.net

Kelly J. Pitcher
CLENDENING JOHNSON &
BOHRER, P.C.
kelly.pitcher@lawcjb.com
/s/ Jefferson S. Garn______
Jefferson S. Garn
Deputy Attorney General
OFFICE OF THE INDIANA ATTORNEY GENERAL
Indiana Government Center South, 5th Fl.
302 West Washington Street
Indianapolis, IN 46204-2770
Telephone: (317) 232-6292
Facsimile: (317) 232-7979
E-mail: Jefferson.Garn@atg.in.gov

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