Seventh Circuit Refuses to “Strike” District Court’s Accusations of Lawyer’s Ethical Violation
Thursday’s decision in Dotson v. Faulkner (Judge Frank Easterbrook, joined by Judges Michael Brennan and Doris Pryor) stems from a lawsuit by a woman who was forced into sex (and at one point choked unconscious) by a prison guard. The guard (Faulkner) was sentenced to prison, and the woman (Dotson) sued the guard and prison officials. “The district court granted summary judgment in favor of [the officials], ruling that none of them knew or had reason to suspect that Faulkner posed a danger to prisoners,” and Dotson didn’t appeal that; but here’s what happened with the lawsuit against Faulkner:
Faulkner did not answer the complaint. The district court entered a default and held a hearing to determine damages. Dotson contended that the assaults reduced her expected income and would require long-term medical expenses. She sought damages to cover these losses, plus pain and suffering; she also requested punitive damages. The district judge awarded $1 million for pain and suffering plus $3 million in punitive damages but found the proof of other loss insufficient.
Although represented by counsel (Joseph W. Seifert of Milwaukee), Dotson did not introduce any evidence about her anticipated future income—either how much she would have expected to make in the absence of Faulkner’s crimes, or how they affected her earning capacity. Counsel did proffer an expert report estimating the expenses that Dotson would incur for mental-health care, but the expert did not testify and the report was not authenticated. Nor did the report reduce future outlays to present value. The district judge generously gave Seifert 14 days after the hearing to fix those problems.
Instead of having the expert authenticate her report through an affidavit or a declaration under 28 U.S.C. § 1746, Seifert drafted, and the expert signed, a document that did not satisfy either option. It was not sworn before a notary, and it did not meet the statute, which requires language in substantially this form: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).” The document that Seifert drafted for the expert says that it is “under penalty of perjury” but does not declare that the report’s substance “is true and correct”. The judge could not fathom why Seifert failed to copy the statutory words or use a notary. The judge concluded that the document did not comply substantially with § 1746.
As for the present-value calculation: Seifert did this himself rather than obtaining the expert’s views. He added an annual cost increase of 4.3% while selecting a discount rate of 3%. The result nearly doubled the expert’s cost estimate. He did not justify projecting annual cost increases (something the expert had not done) when all the district judge held the record open for was discounting to present value. Nor did Seifert explain how he could be a witness in Dotson’s case, or what expertise he had to project medical cost increases or determine appropriate discount rates.
The district judge threw out the additional evidence, observing that Seifert had “failed to comply with basic law on damages and the rules of evidence.” The judge added: “Counsel’s submission shows a wholesale lack of care for compliance with” § 1746. This left Dotson with a $4 million award.
The Seventh Circuit upheld the district judge’s rulings:
The brief’s main argument is that the district court erred by not finding that Faulkner committed his wrongs in the course of his employment. The goal could be a judgment against the employer under principles of respondeat superior or a state law providing indemnification for some adverse judgments. Neither option has good prospects. [Details omitted. -EV] …
[But in any event,] t
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