The Kentucky Court of Appeals committed significant errors in the Trent DiGiurio case, Ragland v Estate of Trent DiGiurio, No 2009-CA-186 (Ky App, October 22, 2010), in reducing the punitive damages assessed by the jury as discussed in a recent post, "The Trent DiGiurio Case: the Kentucky Court Of Appeals Finds Constitutional Rights to Limit Punitive Damages Liability for Intentional Killing and Everything Else Too." Those errors were further illuminated by the ruling of Judge Amul Thapar recently in McCoy v Alfrey, No 08-112 (ED Ky, Pikeville, October 28, 2010).
The nature and reprehensibility of the conduct is material to punitive damages analysis so let us start there. McCoy involved a physical assault, as opposed to the intentional killing involved in the Trent DiGiurio case, and Judge Thapar recited the pertinent facts as follows:
It was the day before the Fourth of July, and Alfrey was driving down the road in his police cruiser. A car coming toward him slow down, its driver obviously flustered. The driver was Randall McCoy. McCoy, who had spent his entire career serving in the Army, flag Alfrey down and asked for the trooper's help. His long-time girlfriend, Benita Damron, had just kicked him out of her house because she believed that he had been looking at pornography on the Internet. Damron was so upset that she insisted McCoy leave immediately, before he could retrieve even his wallet or his duffel bag. McCoy and Damron had fought several times in the past McCoy knew that she just needed some time to cool off. But he needed his wallet and his clothes to live for the next few days. McCoy asked Alfrey if he would accompany him back to the house so he could get a few essentials. Alfrey agreed and followed McCoy and his cruiser.
When they arrived back at the house, McCoy stayed outside while Alfrey went in to speak with Damron. He saw some evidence of an argument – a vase knocked to the floor, a phone ripped out of its jack. Alfrey told Damron that she would have to come with him. After she got dressed Alfrey handcuffed her, walked her outside, and put her in the cruiser. Alfrey handcuffed McCoy and put him in the car as well. McCoy asked why he and Damron were being arrested. Alfrey did not answer. McCoy and Damron assumed that Alfrey was taking them to the police station. So they were surprised when he turned up a small and windy gravel road heading toward an abandoned mine site near Turkey Creek. McCoy asked again whether they were under arrest. Alfrey told him to shut up.
The mine site was desolate, the kind of place where no one can hear you scream. The mine itself had long since been sealed off. Weeds and overgrowth littered the gravel road. Alfrey stopped the car, pulled McCoy out, took off his handcuffs, and told him to put his hands on his head. McCoy complied, as unarmed men tend to do when they receive orders from armed men. Alfrey then smacked McCoy in the face. Once, twice, three times. The slaps broke the skin. Alfrey put the handcuffs back on McCoy, loaded him back into the cruiser, and drove back in the direction of civilization.
McCoy and Damron sat in stunned silence for a while as Alfrey drove. Alfrey stopped at a Mexican restaurant on Route 292. He went inside and made a phone call. When Alfrey got back into the car and continued driving toward the police station, McCoy started asking more questions. Why was he doing this? Don't police officers have a duty to serve and protect? McCoy also pleaded with Alfrey to let Damron go. She had just spent three days in the hospital recovering from a nasty bite by a brown recluse spider. The area around the bite still looked like a shotgun blast and Damron was very weak. After listening to McCoy's protestations, offer he slammed on the brakes, turned the cruiser around, and headed back in the direction of the abandoned mine.
Alfred drove up that overgrown gravel road, again, hold McCoy out of the car, again, and told McCoy to put his hands on his head, again. This time, Alfrey left McCoy's handcuffs on. Alfrey reared back in preparation to throw a punch. McCoy told Alfrey that he would not allow him to hurt them again. He ducked out of the way of Alfrey's fist and grabbed Alfrey from behind, restraining him. While McCoy held Alfrey, the trooper began fighting McCoy's arms. Damron was shrieking hysterically watching the scene unfold from inside the cruiser. Damron yelled at McCoy to let the trooper go. McCoy listened. He released his grip on Alfrey and started walking toward the cruiser.
McCoy then felt the cold metal of Alfrey's revolver press against the rear of his skull. Alfrey told McCoy to get on the ground, and he kicked McCoy in the knee to aid his ascent. Alfrey kicked McCoy in the side and stopped on his back and neck repeatedly. Alfrey then took out his Asp -- a thirty-six inch metal rod and struck McCoy again and again. On this back and on his side. Bruising his skin and forming massive welts. McCoy asked Alfrey to stop, but he would not. He just kept beating him in stone-cold silence. McCoy put up his arm to shield his head Alfrey's blows. The Asp came down and shattered McCoy's watch – a gift his father had given him. Pieces of the shattered watch fell to the ground, mixing with the blood that was already splattered on the gravel. McCoy crawled back toward the cruiser and into the back seat where Damron was still screaming like a banshee. But Alfrey was not done. Alfrey grabbed McCoy, took out his can of mace, and sprayed him directly in the eyeballs at point blank range. Some of the pepper spray ricocheted onto Damron's arms, burning her skin.
Nearly blind from the pepper spray, McCoy heard Alfrey slammed the back door of the cruiser shut, get in the driver seat, and start the engine. The gravel crunched under the tires as Alfrey drove back down the abandoned road. Alfrey said, "now I've got to take you to the damned hospital." He drove McCoy and Damron to the hospital, where McCoy received treatment for his wounds. McCoy and Damron were detained for several days by the Kentucky State Police. Damron was released without being charged and the charges against McCoy were eventually dropped. Because of the injuries he received, especially to his back, McCoy was no longer able to work for the Army. He de-enlisted from the Army and the National Guard, and he is currently on disability.
Damron reported Alfrey's beating to investigators. She led them back to the abandoned mine site and showed them the areas of gravel that had been splattered with McCoy's blood and the shards of McCoy's once-prized watch. Alfrey pled guilty to criminal assault charges. McCoy and Damron then brought a 1983 action against Alfrey claiming that he violated their constitutional rights. After a jury trial held on July 20, 2010, the jury returned a verdict in favor of McCoy and Damron. The jury found that Alfrey unlawfully arrested them without probable cause and used excessive force. The jury awarded McCoy $20,000 in compensatory damages and $250,000 in punitive damages. The jury awarded Damron zero dollars in compensatory damages and $25,000 in punitive damages. The Court entered judgment on the jury's verdict. Now, Alfrey challenges the award of punitive damages, claiming there grossly excessive.
The facts in McCoy v. Alfrey are harrowing but, nonetheless, fall well short of an intentional killing, one that Fayette Circuit Judge Thomas Clark described aptly as follows:
To lie in wait, in the dark of night, and assassinate a person from purportedly being blackballed from the fraternity years earlier, the court can find no greater reprehensible conduct.
Both courts focused in on the admonition by the Supreme Court in State Farm Insurance Company v. Campbell, 538 U.S. 408 (2003), regarding the ratio of punitive to compensatory damages. That critical admonition in full was as follows as Judge Thapar noted:
... in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process[.]
The problem with the Kentucky Court of Appeals' analysis is that it left out the limiting language, "to a significant degree." Judge Thapar, on the other hand, correctly recognized that the Supreme Court in Campbell "was expressing its concern with truly shocking ratios, such as those that it invalidated" of 500-to-1 and 145-to-1, and that a 12.5-to-1 ratio was "not even in the same ballpark." Neither, it can fairly be observed, was the 18-to-1 ratio represented by the jury's award. It would appear that the Kentucky Court of Appeals ignored critical language in Campbell and, as a result, established erroneously for this Commonwealth a ceiling for punitive damages nearly impossible to breach, since conduct more reprehensible than an intentional killing will surely be rare if not impossible.
It must be hoped that the Kentucky Supreme Court will have opportunity to ameliorate the flawed analysis employed by the Court of Appeals in this latest judicial unwinding of these very tragic Trent DiGiurio case.
