USDC IN/ND case 3:08-cv-00503-RL-MGG document 378 filed 09/30/16 page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROMAN FINNEGAN, et al.,
Plaintiffs,
vs.
LAUREL MYERS, et al.,
Defendants.

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)
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)
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NO. 3:08-CV-503

OPINION AND ORDER
This matter is before the Court on the State Defendants’ Rule
59 Motion to Alter or Amend Judgment by Reducing Damages, filed by
the State Defendants, Laurel Myers, Regina McAninch, Reba James,
and Jennifer McDonald, on November 6, 2015.

(DE #354.)

For the

reasons set forth below, the motion is DENIED.

BACKGROUND
Plaintiffs, Roman Finnegan, Lynnette Finnegan, Jonathon Abair,
Tabitha Abair, and Katelynn Salyer (collectively, “Plaintiffs”),
sued several defendants in this case, including the following State
Defendants: Laurel Myers, the Director of the Pulaski County
Department of Child Services (“DCS”) during the period in question
(“Defendant

Myers”),

Regina

McAninch,

an

investigator

and

caseworker for DCS (“Defendant McAninch”), Tracy Salyers, a family
case manager for DCS (“Defendant Salyers”), Reba James, a regional

 USDC IN/ND case 3:08-cv-00503-RL-MGG document 378 filed 09/30/16 page 2 of 17

manager for the Department of Child Services (“Defendant James”),
James Payne, former director of the Department of Child Services
(“Defendant Payne”), and Jennifer McDonald, an Indiana State Police
detective

(“Defendant

Defendants”).1

The

McDonald”)
claims

(collectively,

involved

the

State

the

“State

Defendants’

interactions with Plaintiffs directly prior to and for the course
of several years after the death of fourteen year old Jessica
Salyer (“Jessica”).

In late September of 2015, the case proceeded

to a fifteen day jury trial.

Ultimately, the jury found in favor

of Plaintiffs against four of the State Defendants on five of their
claims2 and awarded a total of over $31 million to the Plaintiffs
in varying amounts.

DISCUSSION
A party may bring a post-trial motion to alter or amend a
judgment by way of remittitur pursuant to Federal Rule of
Rule of Civil Procedure 59.

Federal

See Fed.R.Civ.P. 59(e); Baier v.

Rohr-Mont Motors, Inc., No. 12 C 8234, 2016 WL 1247451, at *1 (N.D.
Ill. Mar. 30, 2016).

A court must review a jury’s award of

compensatory damages “with several considerations in mind: (1)
1

Claims were also brought against Defendant Antoinette Laskey, M.D.
(“Defendant Laskey), but any findings as to liability or damages against
Defendant Laskey are not at issue for purposes of this motion.
2

The jury found that Defendant Payne and Defendant Salyers were not
liable for any of the claims. Additionally, not all of the claims were
brought against all of the State Defendants; and, depending on the claim, not
each Defendant who was named was held liable.

2

 USDC IN/ND case 3:08-cv-00503-RL-MGG document 378 filed 09/30/16 page 3 of 17

whether the award is ‘monstrously excessive’; (2) whether there is
no rational connection between the award and the evidence; and (3)
whether the award is roughly comparable to awards made in similar
cases.”

Thompson v. Meml. Hosp. of Carbondale, 625 F.3d 394, 408

(7th Cir. 2010) (citing Marion Cnty. Coroner’s Office v. E.E.O.C.,
612 F.3d 924, 931 (7th Cir. 2010)).

A verdict that is considered

‘monstrously excessive’ is “one that is a product of passion and
prejudice.”

Adams v. City of Chicago, 798 F.3d 539, 543 (7th Cir.

2015) (internal quotation marks and citation omitted). The Seventh
Circuit has clarified that the ‘rational connection’ standard is
essentially the same one as the ‘monstrously excessive’ standard in
that they are “really just two ways of describing the same inquiry:
whether the jury verdict was irrational.”

Id. (citing Harvey v.

Office of Banks & Real Estate, 377 F.3d 698, 713-14 (7th Cir.
2004)).

An irrational verdict “is merely a product of the jury’s

fevered imaginings or personal vendettas.”

Id. (citing G.G. v.

Grindle, 665 F.3d 795, 798 (7th Cir. 2011)).

When determining

whether a remittitur is warranted, “great deference” must be given
to the jury’s verdict because “[t]he district court and the jury
are in a superior position to find facts and determine a proper
damages award.”

Grindle, 665 F.3d at 799 (quoting Farfaras v.

Citizens Bank & Trust of Chi., 433 F.3d 558, 566 (7th Cir. 2006));
see also Am. Nat. Bank & Trust Co. of Chicago v. Regl. Transp.
Auth., 125 F.3d 420, 437 (7th Cir. 1997) (quoting Dresser Indus.,
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Inc., Waukesha Engine Div. v. Gradall Co., 965 F.2d 1442, 1446 (7th
Cir.

1992)

(“Because

damage

calculations

are

essentially

an

exercise in factfinding, our review of the jury’s damage award is
deferential.”).

The trial record as a whole must be viewed in the

light most favorable to the verdict.

Adams, 798 F.3d at 543.

“This perspective is essential, if we are to preserve the jury’s
role as the trier of fact.”

Id.

Verdict Size and Connection to the Evidence
The State Defendants argue that “after two weeks of an
emotionally charged trial, the jury awarded damages based largely
on emotion rather than a dispassionate analysis of the evidence.”
(DE #353, p. 3.) In the State Defendants’ view, the $31.35 million
“verdict demonstrates the lack of rational connection between the
jury’s verdict and the evidence presented.”

(Id. at 4.)

In

response, Plaintiffs point out that the jury awarded the total of
over $31 million not to one plaintiff for one claim but rather to
the

five

individual

Plaintiffs

on

numerous

separate

but

interrelated claims against five different defendants, all of which
were supported by evidence establishing “harrowing injuries of
almost unfathomable magnitude.”
into

the

specifics

of

the

(DE #359, p. 1.)

evidence

related

Before delving
to

each

award,

Plaintiffs note that they “were facing the worst tragedy a family
can suffer, the untimely death of a child.”

4

(Id.)

Thus, they

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argue, it was reasonable for the jury to conclude that the State
Defendants “compounded that tragedy by their misconduct.”
1-2.)

(Id. at

In reply, the State Defendants assert that Plaintiffs rely

on “conflation and passive voice to paint the jury’s compensatory
damages

award

as

rationally

connected

to

the

evidence

they

presented at trial” but fail to tie it to any particular defendant;
thus, they argue, the jury must have awarded damages “at an
emotional level” based on “passion and prejudice” related to the
tragedy of Jessica’s death rather than the actual evidence.

(DE

#365, pp. 1-3.)
The

Seventh

Circuit

has

recognized

that

“[t]he

required

‘rational connection’ between the evidence and the award does not
imply mathematical exactitude, especially where the compensatory
damages

are

for

pain

and

suffering.

Such

damages

are

very

difficult to quantify, leaving it to the jury to select a dollar
amount that it believes will fairly compensate the plaintiff.”
Hendrickson v. Cooper, 589 F.3d 887, 892-93 (7th Cir. 2009) (citing
Fenolio v. Smith, 802 F.2d 256, 259-60 (7th Cir. 1986)).

In fact,

a verdict premised on “nonpecuniary loss can be supported, in
certain circumstances, solely by a plaintiff’s testimony about his
or her emotional distress.”

Deloughery v. City of Chicago, 422

F.3d 611, 619-20 (7th Cir. 2005) (quoting Tullis v. Townley Eng’g
& Mfg. Co., Inc., 243 F.3d 1058, 1068 (7th Cir. 2001)).

Although

a defendant may consider such evidence of a plaintiff’s emotional

5

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distress “meager,” a jury may properly view that same evidence in
an

entirely

different

light

based,

for

example,

observations of a witness’s demeanor at trial.

on

its

own

See Id. at 620.

Furthermore, it is permissible to establish emotional injuries
without “extensive psychological or medical testimony” because the
jury is capable of determining the impact of a defendant’s actions
on a plaintiff.

Farfaras v. Citizens Bank and Trust of Chicago,

433 F.3d 558, 566 (7th Cir. 2006).

Overall, it is imperative that

a jury’s damage calculations are given deference because they are
“essentially an exercise in fact-finding.”

Dresser Indus., Inc.,

965 F.2d at 1446.
Here, the State Defendants gloss over the fact that all of the
Plaintiffs, with the exception of Katelynn Salyer whose damages
were described by her family members in her stead, testified
themselves

as

to

the

emotional

anguish

they

experienced

and

continue to experience as a result of the events in question. That
testimony was oftentimes emotionally charged, and the jury was able
to observe the demeanor and visceral reactions of each Plaintiff as
they spoke about their anger, pain, and suffering.

Furthermore,

witnesses including Tim Brown, John Majchrzach, Jean Majchrzach,
Pam Graham Liston, Dr. Gordon Klockow, attorney David Geisler, Dr.
James Kenny, Bonnie Schmidt, Tom Rausch, and Dr. Randall Krupshaw
also

testified

about

the

harms

suffered

by

Plaintiffs.

As

Plaintiffs point out, the jury repeatedly heard evidence of the

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following from multiple sources: that Roman and Lynnette Finnegan
were falsely accused of causing Jessica’s death and had their
surviving daughters removed from the family home during their time
of grief; that Tabitha Abair and Katelynn Salyer were told that
their mother had killed Jessica, were separated from their parents,
and

underwent

months

of

“investigative”

therapy

where

they

repeatedly discussed their sister’s death and were prompted to
incriminate their parents; and that Jonathon was told, falsely,
that his mother was blaming him for Jessica’s death.

The jury was

capable of sifting through such evidence and using their own sound
judgment to determine what impact the actions of each State
Defendant had on each Plaintiff.

See Farfaras, 433 F.3d at 566;

see also Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 446
(7th Cir. 2010) (plaintiff was entitled to compensatory damages for
emotional

distress

based

on

her

own

testimony,

even

without

corroborating evidence from a third party).
The

State

Defendants

argue

that

it

is

clear

the

jury

improperly awarded damages at an emotional level based solely on
the tragedy of Jessica’s death.

They assert that even Plaintiffs

“implicitly recognize” Jessica’s untimely death was the actual loss
that created all of their pain and suffering.

But this view is

myopic; when considering the record in its entirety, the Court
finds that it is more likely the jury believed the actions of the
State

Defendants

compounded

that

7

loss

and

caused

Plaintiffs

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significant additional trauma at a time when they were most
vulnerable and fragile.

The Seventh Circuit has acknowledged that

a plaintiff’s unique personal situation may appropriately play a
role in evaluating and awarding damages, even when a defendant’s
actions did not cause all of the relevant underlying circumstances.
See, e.g., U.S. E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d
1276, 1285-86 (7th Cir. 1995) (finding a rational connection
between the evidence and the damage award and specifically noting
that “the emotional burden on a person dying of cancer, perceiving
himself

as

unable

to

adequately

provide

for

his

family,

is

considerably greater than that suffered by the ordinary victim of
a wrongful discharge”).

Here, it is undisputed that none of the

State Defendants caused Jessica’s death or were responsible for it
in any way. The jury was specifically instructed that “[t]his case
is not about who is liable for the death of Jessica Salyer.
Therefore, even if you find for any of the plaintiffs, you cannot
award them damages solely for the loss of Jessica Salyer.3
The State Defendants point to no specific evidence to suggest
that the jury failed to follow that instruction.

Instead, they

argue that “passion and prejudice” can be inferred because the
verdicts were not rationally connected to the evidence.
3

But an

In fact, while it is not considered evidence, the Court notes that
Plaintiffs’ counsel addressed this matter within seconds of beginning his
closing argument as follows: “On December 20, 2005, Jessica Salyer died. She
died because of prescription errors by her family doctor. These Defendants
that you will be considering today are not responsible for causing her death.”

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independent review of the record viewed in the light most favorable
to Plaintiffs, as adequately outlined in their response brief,
suggests otherwise. The Court notes that the overwhelming majority
of

the

evidence

undisputed

by

described

the

State

by

Plaintiffs

Defendants

in

in

their

their

brief

reply.

is

Where

differences do exist, the Court finds that it was reasonable for
the jury to make inferences and conclusions in Plaintiffs’ favor.
(See generally DE #359, pp. 8-15 & DE #365, pp. 4-8.)

Based on the

foregoing, the Court finds that it was rational for the jury to
conclude that great emotional harm arose from the State Defendants’
actions that was separate and apart from the trauma of Jessica’s
death and to award them in kind for those injuries.
A continued theme in the State Defendants’ reply brief is that
the damages for each of the Plaintiffs cannot be tied to any
specific State Defendant.

They argue that Plaintiffs tried this

“very complicated, very emotional case as if it were against the
State of Indiana or the Department of Child Services, instead of –
as would have been consistent with law – against individual
people.”

(DE #365, p. 1.)

However, the jury was given numerous

instructions regarding its duties in that regard. For example, the
jurors were instructed that “[e]ach party is entitled to have the
case decided solely on the evidence that applies to that party.”
(DE #344, p. 9.) They were told to give “separate consideration to
each claim and each party in this case” and were instructed that

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[i]n considering a claims against a particular defendant, you must
not consider evidence admitted only against another defendant or
only as to another claim.”

(Id. at 19.)

Furthermore, the jury was

specifically told that “[d]efendants are being sued as individuals”
and that the Indiana Department of Child Services was not a party
to the lawsuit.

(Id. at 27.)

Finally, the jurors were given an

instruction with regard to a conspiracy, which set out details and
limitations in relation to potential conspiratorial relationships.
(Id. at 344.)

It is well-established that jurors are presumed to

understand and apply the jury instructions that they are given
during and at the close of the case.

See, e.g., Nat’l Org. for

Women, Inc. v. Scheidler, 267 F.3d 687, 705 (7th Cir. 2001); see
also Thomas v. Cook Cnty. Sheriff’s Dept., 604 F.3d 293, 298 (7th
Cir. 2010) (finding that the $4,000,000-plus damage award was not
excessive, in part, “[b]ecause we presume that jurors follow the
instructions given, we must interpret the jury verdict to be
consistent whenever possible. As a result, we interpret the jury’s
allocation in this case as an attempt to split the total damages
among the defendants, rather than an effort to issue duplicate
awards for the same injury.”)

In this case, the presumption that

the jury followed the Court’s instructions and applied them when
determining an appropriate damages award is bolstered by a review
of the twenty-two page verdict form.

As noted by Plaintiffs, the

verdicts for each of the five Plaintiffs were internally consistent

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and varied greatly based on the claim and the particular State
Defendant they were considering.

See Adams, 798 F.3d at 544.

As

a whole, the Court is convinced that the compensatory damages
awards in this case were rationally connected to the evidence
presented and were not, as the State Defendants suggest, simply a
product of passion or prejudice.

Comparable Verdict Awards
In their motion, the State Defendants argue that while there
is little guidance for what the proper damages in this case should
be, the guidance that exists “points dramatically downward.”
#353, p. 6.)

(DE

They cite to two cases in support of their position:

Cole v. Cnty. of Los Angeles, 2012 WL 8718253 (W.D. Cal. 2012) and
Duran v. City of Chicago, 23 Nat. J.V.R.A. 10:22, 2008 WL 9355823
(Ill. Cir. Ct.).

In response, Plaintiffs argue that Cole is

distinguishable from the case at bar and that Duran actually
supports the jury’s award here.

Plaintiffs also cite to five

additional cases for their contention that “[m]any other juries
have recognized the significant pain of a parent’s separation from
children and demonstrate that it would be unwarranted to conclude
that the jury’s awards in this case were irrational.”
pp. 19-20.)

(DE #359,

In reply, the State Defendants reassert that there is

“little guidance” as to proper damages and argue that Duran is not
distinguishable from the present case. The State Defendants do not

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 USDC IN/ND case 3:08-cv-00503-RL-MGG document 378 filed 09/30/16 page 12 of 17

attempt to address any of the additional cases cited by Plaintiffs.
As an initial matter, the Court notes the Seventh Circuit has
repeatedly held that while awards in other cases can provide a
“reference point” with regard to reasonableness, “they do not
establish a range beyond which awards are necessarily excessive.”
Deloughery v. City of Chicago, 422 F.3d 611, 621 (7th Cir. 2005)
(citing Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 485 (7th
Cir. 2003)).

Because the facts of each case are different, those

types of comparisons are “rarely dispositive.”

Id.; see also

Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir. 2009) (“We may
also compare the award with other compensatory damages awards
upheld in similar cases, although such comparisons are rarely
dispositive given the fact-specific nature of damages claims.”) In
Lampley,

the

Seventh

Circuit

cautioned

courts

against

“substitut[ing] a jury’s damages verdict with its own figure merely
because a case with similar facts has not yet arisen, or because a
plaintiff in a similar case was perhaps not able to plead his facts
to the jury as well.”

Lampley, 340 F.3d at 485.

It must be

remembered that, “[i]ndividual cases can differ from each other
enormously in terms of witness credibility, the quality of the
presentation,

the

nature

and

extent

of

the

injuries,

the

vulnerability of the victim, the reactions of jurors to the
particular circumstances, and hosts of other variables.”

Ibaenez

v. Velasco, No. 96 C 5990, 2002 WL 731778, at *11 (N.D. Ill. Apr.

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25, 2002). And, when the facts presented are “out of the ordinary”
as compared to other cases of its kind, the court has recognized
that a jury award may appropriately reflect those considerations.
See Neal v. Honeywell, Inc., 191 F.3d 827, 832 (7th Cir. 1999).
Here, Plaintiffs argue that the “extensive and long-term harm
caused by multiple child welfare workers to five family members on
five factually and legally independent prevailing claims” makes
this case unique in terms of damages awards.

(DE #359, p. 17.)

Because no other reported case has involved “welfare workers
falsely accusing parents of causing their child’s death, removing
two young daughters from the home and subjecting them to nine
months of investigative therapy, and alienating their brother from
the family,” Plaintiffs assert that comparisons to other cases are
of “limited utility.”

(Id.)

The Court agrees that this case is

out of the ordinary given the nature and number of the claims and
the facts presented throughout the course of the proceedings as
described

above.

See

Neal,

191

F.3d

at

832

(particular

circumstances of plaintiff’s workplace led to emotional distress
“exceeding

the

norm”

as

compared

to

a

discrimination cases with smaller verdicts).

“slew”

of

other

That said, the

additional cases cited by Plaintiffs are instructive in terms of
giving credence to the view that juries have recognized significant
emotional damages associated with forced familial separations. See
Fogarty-Hardwick v. Orange Cnty., 2007 WL 5187674 (Cal. March 2007)

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($4,906,000

verdict

for

mother’s

emotional

distress

when

two

children were improperly removed from her custody and placed into
foster care); Lozoya v. Gracia, 1993 WL 850565 (N. Mex. Jan. 1993)
($6 million to mother for lost custody); Streeter v. Exec. Jet
Mgmt., 2005 WL 4357633 (Conn. Super. Nov. 10, 2005) ($27 million
jury award for mother separated from her child for 22 months);
Smith v. Smith, 1985 WL 327994 (Tex. July 1985) ($7 million to
mother for pain and suffering associated with loss of society with
her children, who were abducted by another relative); Weirich v.
Weirich, 1989 WL 387282 (Tex. Jan. 1989) ($6,247,684 for similar
scenario).
Moreover,

while

the

State

Defendants

argue

that

a

“dramatically downward” remittitur is justified based on the two
allegedly

comparable

disagrees.

cases

cited

in

their

motion,

the

Court

In Cole v. Cnty. of Los Angeles, 2012 WL 8718253 (W.D.

Cal. 2012), the Los Angeles Department of Children and Family
Services (“DCFS”) responded to a report of possible physical abuse
and neglect of the plaintiff’s son while he was in the care of his
father.

Id.

The plaintiff claimed DCFS submitted a false report

and wrongfully detained her two children even though there were no
signs of abuse.

Id.

The plaintiff and her children alleged civil

rights violations and intentional infliction of emotional distress
among other claims against DCFS and individual county employees.
Id.

However, the case settled for $500,000 prior to trial, which,
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despite the State Defendants’ glossing over of in its reply, makes
it immediately distinguishable from the present case as it was
never submitted to a jury for a damages determination.
#359-1 & DE #359-2.)

(See DE

Furthermore, according to the affidavit of

Donnie R. Cox, one of the plaintiffs’ counsel in the Cole matter,
while the two children were detained,4 the mother was allowed to
stay with her infant child in the hospital the entire time, and her
two year old child was also brought to the hospital to stay with
her mother and sibling on most days.

(DE #359-2.)

Attorney Cox

described the mother’s psychological distress as “garden variety,”
and noted that the children exhibited no memory of the incident.
(Id.) Clearly, in the instant case, both the factual circumstances
surrounding Plaintiffs’ interactions with the State Defendants and
Plaintiffs’ characterization of the resultant emotional harms are
significantly different than the Cole plaintiffs’ experiences;
thus,

it

makes

little

sense

to

consider

such

a

comparison

persuasive evidence that the jury’s award was too high in this
case.
As to the second case cited by the State Defendants, Duran v.
City of Chicago, 23 Nat. J.V.R.A. 10:22, 2008 WL 9355823 (Ill. Cir.
Ct.), Plaintiffs argue that it does not undermine the award here.
In Duran, the plaintiffs alleged that the Department of Child and

4

The infant was kept in the hospital for approximately seven weeks,
and the two year old was detained in foster care for forty-one days. (DE
#359-2.)

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Family Services was negligent in removing a six month old child
from her parents’ home based on unsubstantiated allegations of
abuse.

Id.

The child and parents were separated for almost a

year.

Id.

The plaintiffs alleged that, as a result of the

defendants’ knowingly deceptive claims, the defendants violated
their constitutional due process rights.
plaintiffs a sum of $4,200,000.5

Id.

Id.

The jury awarded

Plaintiffs contend that,

when viewed in context, such an award for similar substantive due
process

claims

$4,000,000

is

roughly

individual

instant case.

awards6

comparable
for

the

to

the

parallel

$3,000,000
claims

The Court finds this argument persuasive.

in

to
the

Although

higher amounts were awarded here, any discrepancy can be attributed
to the factual differences between the cases.

For example, a six

month old infant, such as the one in Duran, is unlikely to have
experienced

the

same

type

of

“permanent

and

life-altering”

emotional damages associated with removal from its parents as two
“cognitively-developed adolescent girls.”

Nor, as pointed out by

Plaintiffs, would an infant and its parents be subject to the kinds
of harms created by false allegations pertaining to the death of a

5

The total award consisted of $2,500,000 to the infant plaintiff and
$850,000 to each of the parent plaintiffs. Id.

6

The jury awarded $3,000,000 each to Plaintiffs Roman Finnegan,
Lynnette Finnegan, Tabitha Abair, and Katelynn Salyer, and $4,000,000 to
Plaintiff Jonathon Abair on their substantive due process claims. (See DE
#348, pp. 17-19.)

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daughter/sibling, months of investigative therapy, or alienation as
a result of a defendant’s statements.

The complex familial

dynamics described and presented to the jury set this case apart
from Duran.

In sum, the Court finds no reason to conclude that the

jury’s award in this case was either excessive or unreasonable as
compared to other similar (or dissimilar) cases.

See Deloughery,

422 F.3d at 621.

CONCLUSION
For the reasons set forth above, State Defendants’ Rule 59
Motion to Alter or Amend Judgment by Reducing Damages, filed by the
State Defendants, Laurel Myers, Regina McAninch, Reba James, and
Jennifer McDonald (DE #354), is DENIED.

DATED: September 30, 2016

/s/ RUDY LOZANO, Judge
United States District Court

17