Carlos Pacheco was 23 years old and had a five year history of seizure disorders. Typically, an ambulance would be summoned to his apartment in the Bronx and he’d be taken to the hospital, treated and released. On September 30, 2006, Carlos was having a seizure and his girlfriend called 911.

After police and ambulance personnel arrived, Carlos became combative and was restrained and then he was subdued with handcuffs, a chair restraint and stunned with a Taser  by a police officer.

This latest seizure landed Carlos in the hospital for two days for observation and testing. The Taser incident landed the City of New York and several of its police officers in court with a lawsuit by Pacheco claiming that the police used excessive force (he claimed he was tasered at least six times while the defense claimed it was only two) and that as a result he suffers from post-traumatic stress disorder.

The case came on for trial in the Bronx on September 14, 2010 and resulted in a verdict in plaintiff’s favor finding that excessive force had been used and that plaintiff was entitled to pain and suffering damages in the sum of $1,042,499  ($409,166 past – four years, $633,333 future – 48 years). In addition, the jury awarded punitive damages in the sum of $1,000,000. Thus, the total jury award was $2,042,499.

The defendants’ motion seeking to set aside the verdict and/or reduce the damages was denied in a post-trial decision by the Hon. Geoffrey D. Wright dated May 7, 2012.

Thereafter, defendants appealed and now, in Pacheco v. City of New York (1st Dept. 2013),  the entire verdict has been set aside, the judgment reversed and the complaint dismissed because, the court held, the evidence was insufficient to permit the jury to find that excessive force had been used.

The appellate court did not reach or discuss the issue of whether the damages awarded by the jury were excessive. The parties, though, argued that point in connection with the post-trial motion. It appears that had the verdict been upheld as to liability, the pain and suffering damages would have been reduced because of the paucity of medical treatment and proof.

Here are the injury details:

  • post-traumatic stress disorder or PTSD (an expert neurologist who examined plaintiff three years later testified that plaintiff  suffers from nightmares, flashbacks, sleep disorder, depression,  mood and memory problems, all of which are permanent and progressive)
  • burn marks and pain from the Taser on chest, abdomen and back
  • wrists and ankles pain from the use of restraints

The defense noted that apart from the initial hospital admission of two days when plaintiff was evaluated as to his seizures and then an emergency room visit a few days later when plaintiff complained of  some ankle and leg pain, Pacheco never once over the ensuing years sought any medical or psychological treatment at all for his injuries. Furthermore, the only one who ever made a diagnosis of PTSD was plaintiff’s expert (the defense did not call upon a medical expert of its own) who examined plaintiff once for 45 minutes three years after the incident. Finally, any burn marks or pain, the defense claimed, were either minimal and/or had healed quickly.

To recover punitive damages, a plaintiff in a case alleging excessive force by a police officer must prove conduct that was wanton, reckless or malicious.  Even assuming plaintiff here could have (or did) sustain that burden of proof, it does not appear that as much as $1,000,000 would have been upheld had the liability verdict been affirmed. In Ferguson v. City of New York  (1st Dept. 2010), for example, a punitive damages award of $2,700,000 was sustained but there an officer acted in complete disregard of police procedure and fired his gun into the back of a suspect’s head killing him instantly. The amount of punitive damages must be reasonably related to the harm done and the flagrancy of the conduct and therefore Ferguson v. City of New York is distinguishable from Papa v. City of New York (2d Dept. 1993) in which a punitive damage award of $1,250,000 was reduced to $500,000 because in the Papa case (as in Pacheco v. City of New York), there was no one shot and killed.

Inside Information:

  • In her opening statement, defense counsel argued that plaintiff  “was looking for a pay day as a result of officers trying to help him” and he was entitled to nothing at all. In his summation, plaintiff’s counsel said that Mr. Pacheco’s life was ruined and he asked the jury to award $3,500,000 in pain and suffering damages plus $1,000,000 in punitive damages.
  • Lab tests at the hospital immediately following the Taser incident indicated that plaintiff had an inadequate amount of previously prescribed anti-seizure medication Dilantin in his system and his expert admitted that that’s why he seized.
  • Plaintiff never told his expert about two important matters:  a year and a half after the incident he’d been kicked out of his house and had to leave all of his belongings behind and six months later he broke up with his long time live-in girlfriend. The expert admitted that he “would have liked to have known that” information.
  • At a settlement conference in court seven months before trial, the city offered $100,000 but plaintiff would not take less than $125,000 (and thereafter increased his settlement demand to $600,000).