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$75,000 Award Upheld in Use of Carcinogense Blood Detection Agency

The First Circuit has ruled that the forcible application of benzidine,
known as a primary carcinogen, to prisoner's bodies was a constitutional
violation and sufficient to warrant damages.

On November 2 and 3, 1974, Douglas S. Gomes and several other prisoners at
the Adult Correctional Institute (ACI) in Rhode Island were the subjects of
a police investigation of a murder in the prison. With the permission of
the prison warden, state police forced several prisoners, some of them
forcibly, to have benzidine spread on their upper bodies in an effort to
detect otherwise invisible traces of blood. Subsequent to the test Gomes
discovered that benzedine was a known primary carcinogen capable of causing
cancer of the bladder. Plaintiffs filed a suit under 42 U.S.C. § 1983
alleging Fourth, Fifth, Ninth and Fourteenth Amendment violations against
Warden Mullen; Dr. DiFanti, Director of the State Crime Lab; four state
policemen; and the state of Rhode Island. Charges were brought in the
United States District Court for the District of Rhode Island. A jury
awarded Gomes $75,000. Defendants appealed, challenging the sufficiency of
evidence and the District Court's authority to exercise pendant jurisdiction.

The First Circuit held that Warden Mullen exhibited reckless and callous
indifference when he failed to intervene to prevent the benzedine test. A
person with a duty to act, especially someone in a supervisory position,
invokes general tort principles for negligent failure to act. Whether or
not Warden Mullen knew that Benzedine was hazardous he should have
responded to Gomes' extremely vocal request for an attorney.

The appeals court held that Dr. DiFanti was negligent in that he did not
instruct state police of the highly carcinogenic nature of benzedine. The
First Circuit also held that the state police acted in bad faith since they
realized the potential harm of benzedine but applied it anyway.
Compensatory and punitive damages for the plaintiffs were upheld. Pendant
jurisdiction of the district court over the state of Rhode Island was
overturned. See: Clark v. Taylor 710 F.2d 4 (1st Cir. 1983).

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Related legal case

Clark v. Taylor

[44] The case before us is not identical to that before the Court in Aldinger. In addition to the fact that the jurisdictional issue was not raised until mid-trial, it could be argued that even though the state is not liable under section 1983 for the actions of its employees, it is, in contrast to the county in Aldinger, a "person" under section 1983. See, e.g. Marrapese v. Rhode Island,500 F. Supp. 1207, 1210-12 (D.R.I. 1980) (Quern v. Jordan, 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979), does not foreclose suits against a state under section 1983, if the state has consented to be sued). We need not decide whether the state is a person under section 1983, because, even assuming that it is, the fact that Congress has indicated its intent that the state not be liable under section 1983 based only on a theory of respondeat superior, see Monell v. New York City Dept. of Social Services, supra,436 U.S. at 692, appears to us sufficient to bring this case within the rationale of Aldinger. In Aldinger, the Court indicated that "the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress",427 U.S. at 17 (emphasis added). The scope of the cause of action under section 1983 is not broad enough to include jurisdiction over the State of Rhode Island based solely on its employment relationship with the individual defendants in the case. Particularly in light of the fact that the state claims in this case add nothing to plaintiff's section 1983 claim, but simply provide alternative bases for recovery for the same injury caused by the same actors, it appears to us clear that the Court does not intend a plaintiff to be able to circumvent the immunity provided under section 1983 by appending state law theories of recovery to his complaint. The judgment against the State of Rhode Island must, therefore, be set aside.

[45] III. Compensatory Damages

[46] Defendants challenge the jury's award of $60,000 in compensatory damages. They urge that the evidence was insufficient to establish that plaintiff has a genuine fear of developing cancer and that future medical expenses which plaintiff may incur are too speculative to support an award for compensatory damages. In evaluating such a challenge, we rely heavily on the judgment of the trial court, who has had the benefit of hearing all of the evidence and observing the demeanor of the witnesses. Decisions as to the sufficiency of the evidence supporting an award of damages and the reasonableness of the size of that award are committed primarily to his sound discretion. Bonn v. Puerto Rico International Airlines, Inc.,518 F.2d 89, 94 (1st Cir. 1975).

[47] As to defendants' contention that any future medical expenses are too speculative to support an award of damages, we note that defendants did not challenge the court's instruction that the award could include any reasonable and necessary expense for medical, surgical, hospital and other services that are reasonably certain to be required by plaintiff in the future. Neither do they now urge that the jury should not have been able to consider future medical expenses. Their argument must be, therefore, that the award for those expenses was simply too great.

[48] The principle obstacle to defendants' argument is that the jury did not make a specific award for future medical expenses. On agreement of the parties, the jury returned a general verdict on compensatory damages, including both physical and mental distress and reasonably foreseeable medical expenses. Our proper review of such a verdict is not to parse the award into its various components, but to determine whether the award as a whole is within the universe of possible awards which are supported by the evidence. See Narcisse v. Illinois Central Gulf R.R. Co.,620 F.2d 544, 547 (5th Cir. 1980). Particularly in a case such as this, where the general damage award includes compensation for pain and suffering, we are reluctant to disturb a jury award unless it is "grossly excessive" or "shocking to the conscience". See Kolb v. Goldring, Inc.,694 F.2d 869, 871 (1st Cir. 1982); LaForest v. Autoridad de Las Fuentes Fluviales, 536 F.2d 443, 447 (1st Cir. 1976); Rivera v. Rederi Aì Nordstjernan, 456 F.2d 970 (1st Cir. 1972).

[49] We are satisfied that the jury's award of $60,000 in compensatory damages is within the universe of possible awards that are supported by the evidence in this case. Besides evidence of immediate physical discomfort from the test and subsequent skin rashes, the bulk of plaintiff's evidence in support of his claim for damages was addressed to his mental anguish. He produced three experts who testified as to the effects of even one exposure to benzidine. According to one of those experts, benzidine is considered a primary carcinogen, exposure to which, for as little as a minute, causes a permanent error to be imprinted in the DNA molecule and which, after a period of 14 to 30 years, may then result in bladder cancer. That expert also testified that because of plaintiff's exposure to benzidine, his risk of developing bladder cancer had increased from one in ten thousand to one in ten. Plaintiff also introduced two witnesses who testified that plaintiff had expressed a fear of developing cancer which, in their opinion, was genuine. One of those witnesses was a priest and chaplain at ACI who counseled plaintiff for eight to ten months regarding his fear of cancer.

[50] Defendants insist that plaintiff's fear is not genuine. The credibility of plaintiff and his witnesses, however, was a question for the jury, not for the trial court and certainly not for this court on appeal. See Rios v. Empresas Lineas Maritimas Argentinas,575 F.2d 986, 990 (1st Cir. 1978). Assuming that the jury accepted plaintiff's fear as genuine, recovery of compensatory damages for mental suffering is appropriate. Brule v. Southworth,611 F.2d 406, 411 (1st Cir. 1979); see also Plummer v. United States, 580 F.2d 72, 77 (3d Cir. 1978). In light of the evidence of plaintiff's mental and physical suffering and the greatly increased risk that he may develop cancer and incur substantial medical expenses, see Martin v. City of New Orleans,678 F.2d 1321, 1327 (5th Cir. 1982), we cannot say that the jury's award of $60,000 in compensatory damages was either "grossly excessive" or "shocking to the conscience." See Kolb v. Goldring, supra.

[51] IV. Punitive Damages

[52] Defendants' final challenge is to the sufficiency of the evidence to support an award of punitive damages. This objection need not detain us long. Punitive damages in a section 1983 suit are appropriate where there is evidence that the defendants' conduct is motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Smith v. Wade,461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632, 51 U.S.L.W. 4407, 4414 (1983). In this case, as in Smith, to the extent that the defendants are officials who are entitled to qualified immunity, the threshold of conduct for which punitive damages may be assessed is virtually the same as that required for an award of compensatory damages. We have already determined that there was sufficient evidence for the jury to conclude that each of the individual defendants acted with reckless indifference to plaintiff's constitutional rights. See supra at 10-11. Based on the same evidence, the jury could conclude that punitive damages were appropriate. $15,000 in punitive damages is not grossly excessive.

[53] The judgments of liability and the district court's award of $60,000 compensatory and $15,000 punitive damages are affirmed. The district court's denial of the motion of defendant State of Rhode Island that the pendent state law claims against it be dismissed is reversed. The district court is instructed to vacate the judgment of liability and the award of damages against defendant State of Rhode Island.

Judges Footnotes

[54] *fn* Of the Southern District of New York, sitting by designation.

Opinion Footnotes

[55] *fn1 Plaintiff originally brought suit with two other inmates who were subject to the benzidine test. On plaintiff's motion, his case was severed for trial.

[56] *fn2 We note that this is not a case in which the issue of liability was presented to the jury on five alternative theories, without special interrogatories to determine on which theories the jury found defendants liable. If that had been the case, we would be compelled to examine the supportability of each theory, since otherwise we could not be sure that the jury had not found liability on the one theory that lacked sufficient evidentiary support. See Jones v. Miles,656 F.2d 103, 106 n.4 (5th Cir. 1981). In this case, the special interrogatories indicate that liability was found on each claim except the Fourth Amendment and privacy claims against Dr. DiFanti. Assuming that there is sufficient evidence to support liability against each of the defendants on at least one of the accepted theories, the judgments of liability can stand.

[57] *fn3 Perhaps the most comprehensive description was plaintiff's testimony:

"Yeah, as I came through the rear hall, like when they grabbed me and they was rushing me through the rear hall, I put up some resistance until I got right into the rear hall and I seen the warden, and being that he was the warden, and a former state police captain, and he knows better than this to take somebody out under this type of procedure, I appealed to him, you know, to stop what was going on. I said, look, Mullens, I said you know better than this. You know that it's not mandatory for me to talk to the state police without representation. I would like my lawyer here. I'm not complying with this. I want it recorded. So I explained, more or less in that fashion. He just disregarded me, and I went to swearing and making a lot of noise so I can bring it to the inmates' attention what was going on, so therefore when I did bring about legal action on them I would have witnesses to what was going on."

[58] *fn4 R.I. Gen. Laws § 13-2-21 provided that:

"The warden of the adult correctional institutions shall receive into his custody and safely keep in said institutions every person who shall be committed thereto until he shall be legally discharged therefrom and the liability of the committing officer shall cease and the liabilities of said warden shall commence immediately upon the entering and signing of the commitment by the committing officer in the book of said institutions kept for that purpose."

[59] *fn5 The parties have not addressed the issue whether Dr. DiFanti should, like the other officials sued here, be entitled to a qualified immunity from liability for actions taken within the sphere of his official responsibilities. The court gave the jury a general instruction on the qualified immunity accorded to public officials for actions taken in good faith. We are aware of no basis for according immunity to Dr. DiFanti, but even if there were, it would not affect the outcome of the case. The evidence was sufficient for the jury to have concluded that Dr. DiFanti acted with reckless disregard of the safety of plaintiff and other inmates like him.

[60] *fn6 Notwithstanding our deciding the constitutional issue, we doubt that Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976), should be read to have any effect on the court's jurisdiction over the police officers based on pendent state law claims even if we were to conclude that the evidence was insufficient to support the federal claims against them. Dismissal at this stage would involve a judgment on the merits, not a determination that federal jurisdiction was lacking to begin with. Cf. Bell v. Hood,327 U.S. 678, 682, 66 S. Ct. 773, 90 L. Ed. 939 (1946).

[61] *fn7 Because of the jury's verdict on the privacy and due process claims, it is apparent that it concluded that the search was at least unreasonable in manner. We therefore need not reach defendant's argument that the exigencies of the situation justified a warrantless search.

[62] *fn8 Aldinger predated the Court's decision in Monell that a county was, in fact, a person under section 1983. Monell, however, did not otherwise affect the reasoning of the Court in Aldinger. See Charles D. Bonnano Linen Service, Inc. v. McCarthy,708 F.2d 1, slip op. at 12-18 (1st Cir. 1983).