United States District Court, E.D. Missouri, Eastern Division
HOPE ANGELIC WHITE, et al. Plaintiffs,
THE UNITED STATES OF AMERICA, et al., Defendants,
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
Hope Angelic White brought this action individually and in
her capacity as personal representative for the Estate of her
decedent, Myron Pollard, against defendants the United States
of America and Bernard Hansen, an agent with the United
States Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”). The litigation pertained to defendant
Hansen's fatal shooting of Pollard on August 29, 2012.
Plaintiff, as personal representative of the estate of
Pollard, brought a claim under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), for the use of excessive force against Pollard, which
was tried before a jury July 23-27, 2018. The jury found in
favor of defendant. Plaintiff also presented a claim under
the Federal Tort Claims Act (“FTCA”) for wrongful
death, which was tried simultaneously before this Court. The
Court found in favor of defendant on the FTCA claim.
has filed a motion for new trial on the Bivens claim
judgment. Defendant filed a response in opposition, but
plaintiff did not file a reply. Plaintiff invokes Federal
Rules of Evidence 59(d), 60(b)(3), and 60(b)(6) as her bases
for relief. It also appears plaintiff relies on Rule 59(a).
59(a)(1) permits the district court to grant a new trial
after a jury trial “for any reason for which a new
trial has heretofore been granted in an action at law in
federal court.” Fed.R.Civ.P. 59(a)(1). Generally, there
are two grounds for a ordering a new trial: (1) the verdict
was unsupported by the evidence; or (2) prejudicial error was
committed during the trial. See Hannah v. Haskins,
612 F.2d 373, 376 (8th Cir. 1980). A new trial should only be
granted to “avoid a miscarriage of justice.”
McKnight v. Johnson Controls, Inc., 36 F.3d 1396,
1400 (8th Cir. 1994). “When the basis of the motion for
a new trial is that the jury's verdict is against the
weight of the evidence, the district court's denial of
the motion is virtually unassailable on appeal.”
Lincoln Composites, Inc v. Firetrace USA, LLC, 825
F.3d 453, 459 (8th Cir. 2016) (internal quotations omitted).
When considering a motion for new trial on weight of the
evidence grounds, the district court “can disturb a
jury verdict only to prevent a miscarriage of justice,
” and the court must specifically find that the verdict
was against the “great, clear, or overwhelming weight
of the evidence.” Frumkin v. Mayo Clinic, 965
F.2d 620, 624 (8th Cir. 1992). The district court should not
substitute its judgment for that of the jury; it should only
reject a jury's verdict when “after a review of all
the evidence giving full respect to the jury's verdict,
the court is left with a definite and firm conviction that
the jury has erred.” Ryan v. McDonough Power Equipment,
Inc., 734 F.2d 385, 387 (8th Cir. 1984). A motion for new
trial based on evidentiary errors is only warranted where
those errors affected the movant's substantial rights and
“would be likely to produce a different result.”
Pointer v. DART, 417 F.3d 819, 822 (8th Cir. 2005).
59(d) is designed primarily to correct immediately apparent
injustices occasioned by jury verdicts.” Goldsmith
v. Diamond Shamrock Corp., 767 F.2d 411, 415 (8th Cir.
1985) (citing Tarlton v. Exxon, 688 F.2d 973, 978-79
(5th Cir. 1982). The district court may only grant a new
trial “when the first trial resulted in a miscarriage
of justice, through a verdict against the weight of the
evidence … or legal errors at trial.”
Trickey v. Kaman Indus. Techs. Corp., 705 F.3d 788,
807 (8th Cir. 2013). The legal or evidentiary errors must be
so prejudicial that they “likely affected the
jury's verdict.” Id. “Such motions
cannot be used to introduce new evidence, tender new legal
theories, or raise arguments which could have been offered or
raised prior to entry of judgment.” Id.
59(e) motions to alter or amend judgment “serve the
limited function of correcting manifest errors of law or fact
or to present newly discovered evidence.” United
States v. Metropolitan St. Louis Sewer Dist., 440 F.3d
930, 933 (8th Cir. 2006) (internal quotations omitted).
“Rule 60(b) provides for extraordinary relief which may
be granted only upon an adequate showing of exceptional
circumstances.” Schwieger v. Farm Bureau Ins. Co.
of Neb., 207 F.3d 480, 487 (8th Cir. 2000) (internal
quotations omitted). It is not meant to be a vehicle for
seeking reconsideration of arguments that were previously
briefed by the court. Broadway v. Norris, 193 F.3d
987, 990 (8th Cir. 1999). In order to prevail under Rule
60(b)(3), “the movant must show, with clear and
convincing evidence, that the opposing party engaged in fraud
or misrepresentation that prevented the movant from fully and
fairly presenting its case.” Murphy v. Mo.
Dep't of Corr., 506 F.3d 1111, 1117 (8th Cir. 2007).
60(b)(6) relief is available only “where exceptional
circumstances have denied the moving party a full and fair
opportunity to litigate his claim and have prevented the
moving party from receiving adequate redress.”
makes several arguments in support of her motion for new
plaintiff argues the jury lacked sufficient evidence to find
in favor of defendant and that the verdict was against the
weight of the evidence. Specifically, plaintiff argues the
jury could not have properly concluded that Hansen's use
of deadly force against Pollard was reasonable.
Plaintiff's primary argument seems to be that Hansen
fired three shots at the suspect's car after the crash,
when it was no longer a threat to Hansen or to anyone else.
As this Court explained in its memorandum and order disposing
of plaintiff's FTCA claim (#145 at 29-30), the evidence
supports that Hansen's use of deadly force was
plaintiff argues that destruction of the master servers upon
which the videos were recorded constituted misconduct on the
part of defendants and prejudiced plaintiff. It appears
plaintiff seeks reconsideration of this Court's order
denying plaintiff's motion for sanctions on this point.
This matter was briefed three times before trial, and the
Court declines to reconsider the matter. To the extent that
plaintiff argues that the jury's decision, during
deliberations, to watch the video that lacked audio somehow
justifies a new trial, the Court disagrees. The jury viewed
all of the videos several times during the trial, and the
Court cannot speculate as to the jury's reasons for
requesting the video it chose. The jury was free to watch any
of the videos and may have requested additional videos if the
jury saw fit to do so. Plaintiff has failed to identify any
reason for granting a new trial with respect to these issues.
plaintiff contends that the Court improperly allowed
testimony as to Pollard's acquiescence to the home
invasion and threats made by others around him. Plaintiff
states that the only perceived threat to Hansen was the
vehicle, so testimony that the suspects intended to kill the
undercover agent or that they were otherwise dangerous was
prejudicial. The Court disagrees that the evidence was not
relevant to Hansen's perceived threat: knowing that the
car's driver intended to murder people later that day was
certainly relevant to Hansen's split-second judgment.
There is also no evidence to support, as plaintiff suggests,
that it was untrue that the vehicle's occupants agreed to
go through with the home invasion. Further, the Court
instructed the jury to disregard the undercover agent's
statement that each person in the vehicle was prepared to go
forward with the home invasion.
although plaintiff agrees that Creighton's felony
conviction was relevant to his credibility, plaintiff objects
to the evidence of Creighton's gun-related offense
because it alerted the jury to the fact that a gun was in the
vehicle at the time of the incident. Plaintiffs states that
she would have agreed to a stipulation of Creighton's
felony conviction. Defense counsel agreed to limit evidence
regarding Creighton's convictions to the fact that he had
pleaded guilty to two specific crimes without tying them to
this case and without going into details about the charges.
Counsel asked him whether he had pleaded guilty to conspiracy
to commit a Hobbs Act robbery and possession of a firearm in
furtherance of a violent crime. Counsel said nothing to tie
the crimes to this particular event. Plaintiff's counsel,
not defense counsel, asked Creighton whether he was the
driver of a vehicle in which Pollard was a passenger, if the
car accelerated at a high rate of speed, and if there was an
intent to hit an ...