IN RE NASSAU COUNTY STRIP SEARCH CASES

PAUL GARDEPHE, District Judge

In this action brought under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), Plaintiff Joseph C. Rotondi alleges that Defendant Hartford Life and Accident Group ("Hartford") wrongfully terminated his employer-sponsored long term disability ("LTD") benefits. Plaintiff and Defendant filed cross motions for summary judgment on December 14, 2009. (Docket Nos. 7 18)

Plaintiff argues that Hartford's decision to terminate his LTD benefits was arbitrary and capricious because Hartford neglected to conduct an independent medical examination of him and rejected the findings of his treating physician. Plaintiff further contends that Hartford's "dual role as both the administrator and payer of benefits" constitutes a conflict of interest, and that this conflict played a role in Hartford's benefit determination. (Pltf. Br. 1) Defendant argues that Plaintiff's claim is time-barred and that, in any event, the administrative record supports its decision to terminate Rotondi's LTD benefits. (Def. Br. 2) Because Rotondi's claim is in fact time-barred, and because he has failed to show that Hartford acted in an arbitrary and capricious manner in terminating his LTD benefits, Defendant's motion for summary judgment will be GRANTED and Plaintiff's motion for summary judgment will be DENIED.

BACKGROUND

Plaintiff was employed as a machinist by R.R. Donnelly Sons Co. from February 1987 until October 2001 (Pltf. Rule 56.1 Stat. ¶ 1; Def. Rule 56.1. Stat. ¶ 1) Machinist positions typically require two hours of sitting, three hours of standing, and less than 1 hour of walking per eight hour day and are categorized as "sedentary" and "light" work. (Def. Rule 56.1 Stat. ¶¶ 2-3) As part of his employment, Plaintiff was covered by a group long term disability insurance policy (the "LTD Plan") provided by Defendant under the R.R. Donnelly Sons' Welfare Benefit Trust's employee welfare benefit plan. (Id. ¶ 2; Def. Rule 56.1 Stat. ¶ 8) The LTD Plan is governed by ERISA. Under the LTD Plan, Defendant has discretionary authority to determine eligibility for Plan benefits. (Def. Counter Rule 56.1 Stat. ¶ 3; Pltf. Rule 56.1 Stat. ¶ 3)

To the extent that this Court relies on facts drawn from Hartford's Rule 56.1 statement, it has done so because Rotondi has not disputed those facts or has not done so with citations to admissible evidence. Where Plaintiff disagrees with Defendant's characterization of the cited evidence, and has presented an evidentiary basis for doing so, the Court relies on Plaintiff's characterization of the evidence. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001) (court must draw all rational factual inferences in non-movant's favor in deciding summary judgment motion).

Rotondi worked a block away from the World Trade Center, and was at work on September 11, 2001, the day of the terrorist attacks. Rotondi suffered physical and psychological injuries (Pltf. Rule 56.1 Stat. ¶ 4), and he ceased working at R.R. Donnelly on October 9, 2001. (Id. ¶ 22) Defendant approved Rotondi's original claim for short term disability benefits for a knee injury he suffered on September 11, 2001 (Id. 5; Def. Rule 56.1. Stat. ¶¶ 20, 23), and he received short term disability benefits from October 22, 2001 through April 14, 2002. (Id. ¶ 23) Plaintiff was also diagnosed with post-traumatic stress disorder related to the events of September 11, 2001. (Id. ¶ 21)

I. RELEVANT PROVISIONS OF THE LONG TERM DISABILITY PLAN

Under the LTD Plan, "Disability" or "Disabled" is defined as:

(1) during the Elimination Period; and

(2) for the next 18 months, you are prevented by:

a. accidental bodily injury;

b. sickness;

c. Mental Illness;

d. Substance Abuse; or

e. pregnancy,

from performing one or more of the Essential Duties of Your Occupation, and as a result your Current Monthly Base Earnings are no more than 80% of your Indexed Pre-Disability Earnings.

After that, you must be so prevented from performing one or more of the Essential Duties of Any Occupation, and as a result your Current Monthly Base Earnings are no more than 60% of your Indexed Pre-disability Earnings. . . .

Essential Duty means a duty that:

(1) is substantial, not incidental;

(2) is fundamental or inherent to the occupation; and

(3) can not be reasonably omitted or changed.

(Powell Decl., Ex. A at 0005) (emphasis in original). " Mental Illness means any psychological, behavioral or emotional disorder or ailment of mind, including physical manifestations of psychological, behavioral or emotional disorders, but excluding demonstrable, structural brain damage." The LTD Plan limits benefits for Mental Illness to 18 months. (Id. at 00013) (emphasis in original).

The LTD Plan's limitation of actions clause states that "[l]egal action cannot be taken against The Hartford: (1) sooner than 60 days after Proof of Loss has been furnished; or (2) 3 years after the time written Proof of Loss is required to be furnished according to the terms of the Policy." (Id. at 00017) "Written Proof of Loss must be sent [] within 90 days after the start of the period for which we owe payment," and "may [be] request[ed] [] throughout your Disability. In such cases, [Hartford] must receive the proof within 30 days of our request." (Id. at 0016) The LTD Plan defines "Proof of Loss" as "includ[ing] but [] not limited to the following":

(1) Documentation of

a. the date your Disability began;

b. the cause of your Disability;

c. the prognosis of your Disability;

d. your Earnings or income, included but not limited to copies of your filed and signed federal and state tax returns; and evidence that you are under the Regular Care of a Physician;

(2) any and all medical information, including x-ray films and photocopies of medical records, including histories, physical, mental, or diagnostic examinations, and treatment notes;

(3) the names and addresses of all

a. Physicians and practitioners of healing arts you have seen or consulted;

b. hospitals or other medical facilities in which you have been seen or treated; and

c. pharmacies which have filled your prescriptions;

d. within the past three years;

(4) your signed authorization for us to obtain and release:

a. medical, employment and financial information; and

b. any other information we may reasonably require;

(5) your signed statement identifying all Other Income Benefits; and

(6) proof that you and your dependants have applied for all Other Income Benefits which are available. . . .

All proof submitted must be satisfactory to us.

(Id.) The LTD Plan broadly provides that benefits are payable when, inter alia, a claimant "submit[s] proof of loss satisfactory to The Hartford." (Id. at 00012)

II. PLAINTIFF'S INITIAL CLAIM FOR BENEFITS

Defendant approved Plaintiff's initial claim for LTD benefits on April 16, 2002, "finding that the medical information provided by Rotondi supported his claim that he was disabled from performing his own occupation." (Def Rule 56.1 Stat. ¶ 40; Pltf. Rule 56.1 Stat. ¶ 5) Nicholas G. Stratigakis, M.D., submitted an Attending Physician Statement in support of Rotondi's claim for LTD benefits, indicating that Rotondi suffered from a torn meniscus in his left knee. (Def. Rule 56.1 Stat. ¶ 39) On July 16, 2002, Plaintiff underwent arthroscopic surgery on his left knee to repair the torn meniscus. (Pltf. Rule 56.1 Stat. ¶ 9) On April 8, 2003, an MRI revealed "a tear of the anterior talofibular ligament, a small corical avulsion at the antrolateral aspect of the tibia, moderate peroneal tendon synovitis and 1.5CM fluid signal intensity." (Id. ¶ 11) In a June 27, 2003 Employability Analysis report, Hartford found that "Mr. Rotondi does not possess the transferable skills to perform any occupations based upon this analysis." (Def. Counter-Rule 56.1 Stat. ¶ 6 (citing Powell Decl., Ex. B at 000467-68))

Dr. Panagiotis Zenetos treated Plaintiff for his physical injuries from June 2004 until at least September 2007. (Pltf. Rule 56.1 Stat. ¶ 13; Def. Counter-Rule 56.1. Stat. ¶ 13) In addition to monthly office visits, Dr. Zenetos prescribed physical therapy and periodic MRIs. (Pltf. Rule 56.1 Stat. ¶ 14)

On April 8, 2007, Hartford arranged for Dr. Robert Pick of the Medical Advisory Group to review Plaintiff's medical records and certain video surveillance footage of Rotondi, and to issue a report concerning his functional capacities. Dr. Pick did not examine Plaintiff, and his efforts to speak with Dr. Zenetos were unsuccessful. (Id. ¶¶ 17-20) Dr. Pick concluded that Rotondi "[was] quite functional from the orthopedic perspective, and is not restricted from performing full time work," with the following limitations:

Hartford contracted for HUB Enterprises and the Robinson Group to conduct video surveillance of Rotondi on April 15 and 16, 2006, and May 3 and 4, 2006, respectively. (Pltf. Rule 56.1 Stat. ¶¶ 21-24) Based on a review of this video surveillance, Hartford concluded that Rotondi appeared to ambulate in a normal manner on all four days. (Id. ¶ 25)

Dr. Pick contacted Dr. Zenetos on four occasions between March 30, 2007, and April 5, 2007, in an effort to discuss Rotondi's condition. He also left three voice messages with Dr. Zenetos to that effect. (Def. Rule 56.1 Stat. ¶ 186)

Restrictions would be on extensive walking, and repetitive bending, twisting, kneeling and squatting. Lifting would be restricted to no more than 40 pounds. However, these are only initial, temporary restrictions and they are reasonable for initial return to work since Mr. Rotondi apparently has been out of work for many years. Within a few weeks return to work, these restrictions will likely not be necessary.

(Def. Rule 56.1 Stat. ¶ 190; Pltf. Rule 56.1 Stat. 26)

On May 1, 2007, Defendant notified Rotondi that his medical records no longer demonstrated that he was suffering from a physical disability under the LTD Plan, and that "no further benefits are payable to you for your physical condition beyond April 30, 2007." (Powell Decl., Ex. B at 000810) The termination letter stated:

There were noted inconsistencies between your interview statement and your observed functionality during surveillance and during your interview with Mr. Elliot. Specifically, you described your gait as slow but were observed walking in a normal fluid manner. You also stated that you needed to hold onto something when you bend at the waist, but were not observed holding onto anything for balance while you bent at the waste to spray your house/sidewalk. You also stated that you had difficulty entering/exiting your vehicle, however you were observed entering/exiting your vehicle in a normal, fluid manner.

(Def. Rule 56.1 Stat. ¶ 194 (citing Powell Decl., Ex. B at 000809)). The letter also set forth Dr. Pick's findings concerning Plaintiff's physical condition and noted Dr. Zenetos' non-responsiveness. (Id. ¶ 195)

While the May 1, 2007 letter stated that Rotondi would no longer receive LTD benefits as a result of his physical condition, the letter informed Rotondi that he remained disabled under the LTD Plan because of his psychiatric condition, and that he would continue to receive benefits after April 30, 2007, as a result of his mental illness. The letter made clear, however, that the LTD Plan imposed an 18-month limit on benefits payable as a result of mental illness, and that accordingly "no further benefits will be issued beyond October 31, 2008," when the 18-month limit was reached. (Pltf. Rule 56.1 Stat. 15-16; Def. Rule 56.1 Stat. ¶ 193) The letter also informed Plaintiff of his right under ERISA to appeal the LTD benefit determination within 180 days of his receipt of the termination letter. (Id. ¶ 197)

III. PLAINTIFF'S ADMINISTRATIVE APPEAL

By letter dated September 17, 2007, Plaintiff appealed the May 1, 2007 termination decision. (Pltf. Rule 56.1 Stat. ¶ 28; Def. Rule 56.1 Stat. ¶ 199) Plaintiff's letter of appeal stated:

Attached you will see various reports concluding and pointing out numerous reasons why I cannot work for the rest of my life due to the chronic condition. I have osteoarthritis in my left knee and ankle. I have four bulging disks in my lower back. My right hip is also causing me a lot of pain. I never sleep through the night. I also wear an unloading device-brace when needed. I cannot wear this brace for long periods of time because it irritates the skin that it touches.

(Def. Rule 56.1 Stat. ¶ 200; see also Pltf. Rule 56.1 Stat. 29) In support of his appeal, Plaintiff submitted recent MRI reports concerning his right hip and lumbar spine, and Dr. Zenetos's office notes dated May 15, 2007, June 19, 2007, and September 4, 2007. (Def. Rule 56.1 Stat. ¶ 201 (citing Powell Decl., Ex. B at 000152-155; 000157-162)). The MRIs "revealed mild broad-based bulging" of the lumbar spine, an "annular tear" in the posterior annulus, "suspicion for focal undersurface degeneration of the superior labrum," and evidence of "slight insertional tendinosis at the anterior aspect of the greater trochanter." (Pltf. Rule 56.1 Stat. ¶¶ 30-33)

On October 8, 2007, Hartford Appeal Specialist James A. Powell provided Plaintiff's medical records to an independent medical review consultant, Dr. William Andrews, who submitted a report on October 18, 2007. (Def. Rule 56.1 Stat. ¶ 213 (citing Powell Decl., Ex. B at 000186-89)). Dr. Andrews reviewed the following materials:

• Video surveillance of Rotondi from April 15 and 16, 2006, and May 3 and 4, 2006;

• Dr. Menezes's office notes from October 18, 2002 through December 18, 2002;

• Dr. Stratigakis's office and work notes from April 20, 2001 through September 6, 2002;

• Dr. Hashmi's office and work notes from January 10, 2003 through August 6, 2007;

• Ms. Evanier's office notes from May 7, 2002 through April 11, 2003;

• Dr. Menezes's operation note dated July 16, 2002;

• Dr. Zenetos's office notes from May 15, 2004 through September 24, 2007;

• Rotondi's left knee MRI report dated April 28, 2005;

• Rotondi's left knee and hip x-ray report dated September 13, 2006;

• Rotondi's left hip MRI report dated June 6, 2007; and

• Rotondi's lumbar MRI report dated July 3, 2007.

(Id. ¶ 214). On October 15, 2007, Dr. Andrews also discussed Plaintiff's claim with Dr. Zenetos's assistant. (Id. ¶ 215)

Dr. Menezes was Rotondi's treating physician in 2002 and 2003. (Pltf. Rule 56.1 Stat. ¶¶ 7-12) Dr. Hashmi is Rotondi's psychiatrist and Dimi Evanier was Rotondi's psychotherapist. (Def. Rule 56.1 Stat. ¶¶ 65, 159)

In Dr. Andrews's October 15, 2007 report, he described Plaintiff's physical condition as

that of a person with a meniscal tear in his right knee with early arthritis (mild to moderate), chronic synovitis/tendonitis of the left ankle and mild degenerative disc disease in the lumbar spine. He has had an arthroscopy of the left knee on 07/16/2002, without apparent complication. Based on the records sent for review the claimant is able to work at the light level from an orthopedic perspective.

(Id. ¶ 216 (citing (Powell Decl., Ex. B at 000187-88)).

Dr. Andrews stated that Rotondi's work activities should be limited as follows:

• lifting limit of 30-35 pounds, carrying limit of 20 pounds;

• standing, walking limit of 60 minutes at a time;

• occasional overhead activity;

• minimal repetitive bending, twisting, stooping, crawling;

• ability to change positions every 90 minutes as needed for comfort.

(Id. ¶ 217 (Powell Decl., Ex. B at 000188)).

Dr. Andrews concluded that there was "not sufficient evidence to preclude Mr. Rotondi from performing a sedentary or light occupation":

Physically, Mr. Rotondi's complaints are not significant and his video shows a similar picture. His complaints of knee, ankle, and back pain are those which would afford him some limitations as described above, but would not keep him completely out of work.

Orthopedically, he is completely safe to function at the above limits and could have returned to them three months after his [arthroscopic] surgery. There is nothing in his medical records since the surgery, which would place him at a lower level of activity, nor is there evidence of any significant limitations on his surveillance video.

(Def. Rule 56.1 Stat. ¶ 220 (citing Powell Decl., Ex. B at 000188-89)).

On October 22, 2007, Powell recommended that Plaintiff's appeal be denied:

Based upon the above-noted review in conjunction with all other information contained in the file, the weight of the evidence fails to support Mr. Rotondi's inability to perform any occupation due to a physical condition. The surveillance documented normal functionality and neither Dr. Pick nor Dr. Andrews found sufficient evidence of a significant physical impairment based upon their reviews of the medical records. Although Dr. Andrews denotes light work capacity which is different from Dr. Pick who denoted medium, there appears to be no reason to preclude medium level work. It is noted that the prior vocational analysis determined that Mr. Rotondi's own occupation was the most appropriate and having reviewed the physical demands analysis on file it shows that his job is actually considered light duty. Therefore, either opinion would allow Mr. Rotondi to work in his own/any occupation. While it is not disputed that Mr. Rotondi has limitations that prevent him from working, the limitations appear to be primarily the result of a mental illness and as such his claim remains limited to a maximum of 18 months.

(Id. ¶ 221 (Powell Decl. Ex. B at 000058-59); see also Pltf. Rule 56.1 Stat. ¶¶ 34-35).

By letter dated October 22, 2007, Powell notified Rotondi of Hartford's decision to deny his appeal of the decision terminating his LTD benefits. (Def. Rule 56.1 Stat. ¶ 222 (citing Powell Decl., Ex. B at 000184-85); Pltf. Rule 56.1 Stat. ¶ 34)

Plaintiff attempted to re-appeal on November 12, 2008, after his mental disability benefits expired. Hartford informed Rotondi in a November 29, 2008 letter that he had exhausted his administrative remedies and that Defendant's October 22, 2007 decision was final. (Powell Decl. Ex. B at 0028-29, 0145)

DISCUSSION

In his motion for summary judgment, Rotondi argues that Hartford's decision to terminate his LTD benefits was arbitrary and capricious in that Hartford failed to (1) arrange for an independent physical examination, and (2) give adequate weight to the findings of Rotondi's treating physician. Rotondi further contends that Hartford's role as both administrator and funder of benefits constitutes a conflict of interest, and that this conflict of interest led to a termination decision that constitutes an abuse of discretion. (Pltf. Br. 1)

Hartford argues that it is entitled to summary judgment because (1) Rotondi's claim is barred by the LTD Plan's three-year limitation of actions provision, and (2) in any event, Rotondi has not demonstrated that Hartford's decision to terminate his LTD benefits was arbitrary and capricious. As discussed below, this Court concludes that Hartford is correct on both counts.

I SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Whether facts are material is a determination made by looking to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.s a mixed question of fact and law.

Some background is in order. The lesson plan was developed by CO Pound ("Pound") while an instructor for new recruits using an earlier lesson plan he was given. (Pound Dep. at 44:11-23, 58:6-60:7.) The lesson plan covered all strip searches, not just strip searches of new admits. (Id. at 70:13-22.) It was not shown or distributed to the recruits. (Id. at 117:23-118:7, 135:13-136:3.) According to Pound, he used the lesson plan as a "brief overview" (id. at 56:25-57:3, 82:8-83:4, 127:13-22), modifying the plan as he taught (id. at 96:20-98:3, 138:16-140:11, 143:22-144:10). Pound never did a new admit strip search (id. at 53:11-54:12); for the non-new admit strip searches he did conduct, he often departed from the strip search procedures set forth in the 1997 Lesson Plan. (Id. at 72:21-77:6.) It was Pound's "understanding" that the COs conducting new admit strip searches "were using this procedure one through seven" referring to the seven steps listed in Phase III of the 1997 Lesson Plan. (Id. at 72:2-16; see also id. at 56:25-57:8.) It is not clear whether Pound's "understanding" was attributable to "personal knowledge," Fed.R.Evid. 602, or otherwise.

Plaintiffs maintain that "[t]he only writing in existence on the procedure to be used to conduct a strip search is the 1997 lesson plan authored by CO Pound[.]" (Pls.' Prop. Findings at 17.) As such, plaintiffs seek its admission as a basis for this Court to find that the searches conducted upon class members comported in all material respects with the steps set forth in the lesson plan.

In opposing the introduction into evidence of the 1997 Lesson Plan, the defendants have synopized their position thusly:

In seeking to introduce into evidence . . . the 1997 Lesson Plan, and then heavily relying on it in their proposed Findings of Fact, plaintiffs seek to draw the Court's attention away from evidence that demonstrates how the new-admit strip searches were actually conducted and experienced. They essentially propose that the Court should ascribe more weight to that document as a description of the class experience than to testimony by correction officers who actually conducted the searches of new admits during the relevant time period — and they propose this despite the fact that not one of their own witnesses testified that the strip search he or she experienced matched the procedure set forth in that document.

(Defs.' Reply at 10.)

In plaintiffs' view, the 1997 Lesson Plan is admissible as "an admission by the County as well as a business record. . . ." (Pls.' Letter dated Nov. 17, 2009, filed as Dkt. No. 274, at 6.) Proceeding in reverse order, the Court will initially consider plaintiffs' proffer under Fed.R. of Evid. 803(6) which is based on the following excerpt from Pound's September 30, 2009 deposition:

Q. Let me try again. I understand you were handed a document similar to this that had been prepared earlier and it was given to you by Sergeant Figliola?

A. Yes.

Q. But when you prepared this document from that document, did you do that pursuant to your duties and responsibilities at the jail?

A. Yes.

Q. Did you do it in the ordinary course of your duties and responsibilities and business at the jail?

A. Yes.

Q. Did you make and keep this document in the course of your ordinary business at the jail?

A. With the New York State Commission of Corrections lesson plan, yes.

(Pound Dep. at 152:17-153:12 (referenced in Pls.' Prop. Findings at 17, n. 5).)

The answers given by Pound at his deposition are insufficient to warrant the 1997 Lesson Plan's receipt into evidence under Fed.R.Evid. 803(6). That the witness, at deposition, answered the leading foundational questions asked by counsel in the affirmative is not dispositive on the issue of admissibility when the concomitant substantive evidence is to the contrary. In such a situation, form is necessarily trumped by substance lest the purpose of the rules of evidence be perverted. See Fed.R.Evid. 102. Here, Pound prepared one lesson plan during his multiple years of service. The mere fact that the lesson plan was prepared while Pound was in the County's employ does render his work product a business record. The same is true of the predecessor plan upon which Pound's plan was modeled, the origins and use of which stand largely undeveloped. The business records exception to the hearsay rule rests on the "regularity" and the "routine" embodied in the preparation of the record sought to be introduced; the "record must [also] be made contemporaneously with what it records or reports." 4 Fed'l Evidence § 8:77 (3d ed.). Simply put, a juxtapositioning of the cited portions of the deposition testimony of Pound and, incidentally, of Sergeant Harrs as well, with the rationale underlying the business records exception indicates a misfit. See Seattle-First Nat'l Bank v. Randall, 532 F.2d 1291, 1296 (9th Cir. 1976) (bank's loan procedure manual not admissible under the business records exception to the hearsay rule); Gonzalez v. City of Garden Grove, 2006 WL 5112757 (C.D.Cal. Dec. 4, 2006) (training manuals inadmissible hearsay); see also 4 Fed'l Evidence § 8:77 (3d Ed.) ("It seems that Fed.R.Evid. 803(6) does not embrace operating or procedural manuals. . . . Such documents simply do not fit the terms of the exception. They do not report or assess particular matters . . . and the contemporaneity requirement has no ready application, and they are not materials that are prepared on a regular or recurrent basis."); 12A Fed. Proc., L. Ed. § 33:445 ("Although the scope of [Rule 803(6)] is broad, it is not unlimited; for example, it does not embrace operating or procedural manuals, which are not records of any act, transaction, occurrence, or event as required by the Rule."). Although Hodgson v. Corning Glass Works, 474 F.2d 226, 234 n. 10 (2d Cir. 1973) may, at first blush, appear to be contrary, the "Job Evaluation Plan" held admissible as a business record in that case consisted of job descriptions prepared through observation of actual job performance over two years.

Fed.R.Evid. 801(d) indicates that an admission by a party-opponent is not deemed an "exception" to hearsay rule but rather as being "exempt" from the rule as non-hearsay. Graham,Handbook on Evidence, § 801:15.

Plaintiffs also refer to Sergeant Harrs' deposition, Court Exhibit 5, as to the purported significance of the 1997 Lesson Plan. (Pls.' Prop. Findings at 17-19.)

Plaintiffs present a more persuasive argument on their alternate ground for receiving the subject exhibit into evidence, viz. that the 1997 Lesson Plan constitutes an admission under Fed.R.Evid. 801(d)(2). Cf. Hodgson, 474 F.2d at 234 n. 10. That argument rests primarily on Pound's testimony. Based on that testimony, although the matter is certainly not free from doubt given the possible Rule 602 problem, I have received plaintiffs' exhibit 1 into evidence.

The 1997 Lesson Plan has been considered mainly in evaluating the testimony of Michael F. (see Findings of Fact No. 16) and Heidi K. (id. at No. 8). But beyond that, the weight afforded to the lesson plan is de minimis given that the pivotal issue is how were the new-admit strip searches actually conducted rather than the instructions on the subject that may have been provided at the academy. The Court's findings as to that pivotal issue are detailed in Findings of Fact Nos. 7-17. From those factual findings, it is evident, and I so hold, that, contrary to the position advanced by plaintiffs, the strip searches conducted during the class period did not mirror or otherwise meaningfully comport with the steps set forth in the 1997 Lesson Plan. Instead, each CO developed his or her strip search procedure independent of the lesson plan, which procedures understandably shared numerous common core elements, given the nature of the task being performed.

In sum, I have received plaintiffs' exhibit 1 in evidence but the weight it has been afforded, given the other evidence in the record, has been slight.

The above constitutes the Court's Findings of Fact. Attention will now be turned to the concomitant Conclusions of Law.

CONCLUSIONS OF LAW

1. Preliminarily, the Court will address plaintiffs' claim that defendants are collaterally estopped from asserting strip procedures different from those "found" in Shain, see 53 F. Supp. 2d at 565-66. (Pls.' Comments at 4-5 n. 2.)

Collateral estoppel bars a party from relitigating an issue when "(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits." Bank of New York v. First Millennium, Inc., 607 F.3d 905, 918 (2d Cir. 2010) (internal quotations omitted). As collateral estoppel only "prevents the relitigation of an issue that was raised, litigated, and actually decided by a judgment in a prior proceeding" "[i]f an issue was not actually decided in a prior proceeding, or if its decision was not necessary to the judgment, its litigation in a subsequent proceeding is not barred by [the doctrine]." Jim Beam Brands Co. v. Beamish Crawford Ltd., 937 F.2d 729, 734 (2d Cir. 1991). Moreover, "[a] determination whether the first action or proceeding genuinely provided a full and fair opportunity requires consideration of the realities of the prior litigation, including the context and other circumstances which may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him." Algonquin Power Income Fund v. Christine Falls of New York, Inc., 362 Fed. Appx. 151, 2010 WL 177244, at *3 (2d Cir. Jan. 20, 2010) (Summary Order) (internal quotations omitted).

Shain addressed whether that plaintiff "was entitled to summary judgment on the claim that the Nassau County strip search policy, which requires a strip/visual body cavity search [i.e. searches involving the removal of all clothes and a visual inspection of body cavities, not involving any touching of the person being stripped] of all prisoners remanded to custody of the NCCC [was] unconstitutional." 53 F. Supp. 2d at 565 n. 2. Although the Shain court set forth the strip search "procedures followed," the court's listing of those steps was not necessary for its decision. The focus of Shain was on the constitutionality of the County's policy of strip searching newly admitted inmates, not the particular procedures employed to accomplish that goal. Cf. id. at 566 (stating that disputes as the actual inspection time was not material); id. at 566-68 (setting forth the institutional concerns offered by the defendants but noting that given the state of the law, court could not properly consider that evidence). Moreover, the realities of that prior litigation may have had the practical effect of discouraging the County from disputing the actual procedures employed. Given these circumstances, plaintiffs have failed to establish that defendants are collaterally estopped from contending that the strip search procedure employed during the class period

differed from those described in Shain. See Eurocrafters, Ltd. v. Vicedomine, 183 Fed. Appx. 70, 2006 WL 1476126, *2 (2d Cir. May 25, 2006) (Summary Order).

2. As conceded by defendants, each class member was unconstitutionally strip searched upon admission to NCCC following a non-felony arrest.

3. Each class member suffered the same injury to human dignity inherent in the loss of the right to determine which individual or individuals may visually inspect that members's naked body, particularly his or her sexual organs, and under what circumstances. Accordingly, all members are entitled to the same dollar amount per new admit strip search by way of a general damages award, recognizing, of course, that the same may not be said as to their individual claims for associated special damages which will be addressed later in the proceedings.

The affront to human dignity occasioned by being illegally strip searched occurs each time an individual is thus victimized. Accordingly, given that some class members were subjected to more than one new admit strip search during the class period, the general damages award shall be per strip search, not per person.

See this Court's March 27, 2008 Memorandum and Order regarding class certification for damage purposes (particularly the portion entitled "The Issue of General Damages for Dignity Harm Predominates") which is hereby incorporated by reference; not cited in the March 27, 2008 Memorandum and Order, but nonetheless relevant vis-a-vis the distinction between general and special damages is Martinez v. Port Authority of New York and New Jersey, 445 F.3d 158, 161 (2d Cir. 2006).
For the Court's analysis in applying established Second Circuit jurisprudence concerning the general damages brought about by the loss of liberty necessarily inherent in a proven false arrest claim to the current unconstitutional strip search scenario, and for doing so in a Fed.R. of Civ. P. 23 context, see Mar. 27, 2008 Memorandum and Order at 8-13.

4. As to the amount of general damages to be awarded per strip search, plaintiffs maintain it should be in the range of "five figures, at the very least." (Pls.' Comments at 43.) In their view, "[t]here appear to be only two `precedents' similar enough to be at all useful" (id. at 50), those being (1) the defendants "willingness to settle [, as they did,] the cases of the 10 individual plaintiffs in these consolidated actions for $35,000 each, with absolutely no proof of, no inquiry into, and no discovery about, the emotional distress or psychiatric harm to any of those 10" (id. at 51), and (2) the "class action strip search trial held [earlier this year] in the Northen District of Illinois [Young v. County of Cook, CV-06-552 (N.D. Ill.) (Kennelly, J.)"] in which, counsel for plaintiffs reports "Judge Kennelly conducted three trials of eight of plaintiffs' claims to help the parties determine a possible range of damages [after liability had already been established]," resulting in verdicts, "not yet . . . entered upon the public record" but said to be by "plaintiffs' counsel in that case" all "in five figures, i.e. $10,000 or more" (id.

at 51-52).

The subject under discussion represents largely unchartered territory. As a result, as counsel for the parties acknowledge, damage awards in other cases are a "dubious guide" to the task at hand. (Defs.' Prop. Findings at 23; Pls.' Comments at 50.) Consistent with that caveat, plaintiffs' proffered "two `precedents'" share a common inadequacy for present purposes, to wit, neither involved a damages assessment made in a wholly general damages context. While plaintiffs suggest that a savings of time might be realized by blurring the distinction between general damages and the special damages claims of class members yet to be determined, to do so would run afoul of the pretrial rulings which established separate guidelines for the two stages of the proceeding. In keeping with those guidelines, the testimony during the general damages stage was limited to descriptions from class members and COs regarding new admit strip searches at NCCC during the class period, with the goal being to provide the necessary information to the trier of fact so that a general damages award could be fashioned. (See, e.g., Mar. 27, 2008 Memorandum and Order, reported at 2009 WL 706252, at 7-13.) Specifically excluded from the general damages trial was "any information concerning the effect that the search had upon [individual class members]," (Mar. 16, 2009 Memorandum and Order at 6). "This line of demarcation as to the permissible testimony will not negatively effect any [class member at the general damages trial] because to the extent such individual did sustain humiliation, embarrassment or emotional distress . . . those items may be pursued during the special damages portion of the proceedings." (Id. at 7.)

"[I]f the Court's general damages verdict is substantial enough to provide reasonable compensation to the class, plaintiffs are considering foregoing the next stage of the compensatory damages case in an effort to move this case more expeditiously to a conclusion. . . ." (Pls.' Comments at 56-57 n. 24.)

Indeed, it would seem advisable — and I will solicit input from counsel at the appropriate time — that the special damages jury be instructed, to prevent possible double counting, of the general damages award made to each class member for the inherent injury and resulting damage to all class members caused by being illegally strip searched. Cf. Kerman v. City of New York, 374 F.3d 93, 125-26 (2004) ("The damages recoverable for loss of liberty for the period spent in wrongful confinement are separable from damages recoverable for such injuries as physical harm, embarrassment, or emotional suffering [caused thereby]; even absent such other injuries, an award of several thousand dollars may be appropriate simply for several hours' loss of liberty. . . . The jury, however, was [improperly] not instructed that Kerman was entitled to compensatory damages for his loss of liberty.") (internal citations omitted).

In sum, plaintiffs' value arguments premised on the settlements reached by the County with certain individual plaintiffs prior to class certification, and on what has transpired in Young v. County of Cook to date, are of marginal relevance.

Defendants' position regarding general damages is multifaceted, beginning with the observation that an award of general damages must be based solely on the dignity injury upon which class certification was based. (Defs.' Prop. Findings at 18.) That is followed by the argument that general damages must be awarded only for the common injury experienced by all class members and, thus, "outlier" testimony must be disregarded. (Id. at 20.) Next urged by defendants is that implicit in the very idea of a class action is the understanding that individual recovery is inherently lower than in an individual action. (Id. at 21.) Finally, defendants maintain that "the damages awarded in strip search cases have been minimal absent aggravating factors suggesting a gratuitous or malicious effort to demean, debase, or degrade." (Id. at 23 (capitalizations omitted).) These points will each be addressed in turn.

A. General Damages Have Been Determined in This Case Based on the Affront to Human Dignity Necessarily Entailed in the Strip Searches to Which Class Members Were Subjected.

As noted by defendants, the Court certified a damage class based upon the theory that "plaintiffs have suffered an injury to human dignity," and "has regularly reaffirmed this basic law of the case since then." (Defs.' Prop. Findings at 18.) Defendants voice a concern, however, that I may have reconfigured the basis for the certification of the general damages class, citing my statement on October 20, 2009 that perhaps "we shouldn't use the word `human dignity' in this case" (Oct. 20, 2009 Tr. at 83:12-13), and the text of the Proposed Preliminary Instruction to the Jury which I presented to counsel in November 2009.

The Court's October 20th comment was triggered by its receipt of a report of Adam Schulman ("Schulman"), who defendants sought to call as an expert pursuant to Rule 702 of the Federal Rules of Evidence. Therein Schulman opined as follows:

Human dignity is not injured or violated by conduct that is merely uncomfortable, intrusive or embarrassing. Rather, modern thinking about human dignity — whether in Europe, where the concept plays an important role in the law, or in the United States, where it does not — has developed in response to grave atrocities and crimes against humanity, including genocide, slavery and unethical human medical experimentation (especially in the Nazi concentration camps but also, in the U.S., in the Tuskegee Syphilis Study). Conduct rises to the level of a violation of human dignity only when there is a deliberate and gratuitously malicious attempt to demean, debase, humiliate, or deny the humanity of the victim. Moreover, for conduct to constitute a serious violation of human dignity, warranting more than minimal damages, it must reflect a widespread or systematic practice of atrocities inflicting grave humiliation or degradation on human beings.

(Expert Report of Schulman (Dkt. No. 175) at 2 (emphasis in original).)

I denied defendants' request to call Schulman as a witness. In doing so, I gave the following explanation which contains the snippet provided by defendants:

[W]hat I am concerned about on the question of helping the jury and it being relevant is basically the premise upon which this learned individual report is based. This is based, as he has indicated, basically it is on international law. It is on the issue of bioethics. It is a very broad presentation by him, and I'm sure it is accurate as to the concept of human dignity within the parameters that he has discussed.

It may be that we shouldn't use the word "human dignity" in this case. But the semantics doesn't change the substance. And that's the problem. It is basically that the good doctor is talking about one thing, and we are involved with something different.

(Oct. 20, 2009 Tr. at 83:4-16.)

In sum, the statement quoted by defendants, in the context in which it was uttered, should not be interpreted as a step towards altering the "basic law of the case." (Defs.' Prop. Findings at 18.) Instead, it represents a comment tethered to my determination that Schulman's understanding of the concept of human dignity, based on European law (e.g. does not apply in a meaningful way, as indicated in his report, absent "a widespread or systematic practice of atrocities") is out-of-sync with our law which authorizes an award of general damages for certain wrongs, even if isolated, committed against a single individual such as, e.g., the arrestee in Kerman who was deprived of his liberty for one day which the Second Circuit opined might be worth "several thousand dollars" in and of itself. Kerman, 374 F.3d at 126.

With respect to the text of the Proposed Preliminary Instruction to the Jury, that being the second reason fostering defendants' concern, I prepared that document in an effort to assist the jury scheduled to be selected to hear the case, and presented it to counsel for their input. In response, both counsel shared a concern that the proposed instruction "deemphasi[zed] . . . the concept of a common injury to human dignity" as being the appropriate predicate for an award of general damages. (Defs.' Nov. 23, 2009 Letter (Dkt. No. 280) at 1-2.) While the issue was sub judice, counsel advised the Court that their clients waived the right to a jury trial on the general damages issue, thus rendering the objections to the Proposed Preliminary Jury Instruction moot. Nonetheless, the Court has considered the de-emphasis objections, and has fashioned its general damages determination consistent with the concept and terminology embodied in the damage class certification.

B. The "Outlier" Testimony Referenced by Defendants has not Affected the General Damages Award.

COs testified at trial concerning the procedures that they have followed in strip searching thousands of new admits during the class period. Additionally, various class members detailed the strip searches to which they were subjected. Based on the COs' and class members' testimony, it became apparent that, although each officer developed his or her own procedure, all class members were subjected to many of the same steps and that all were ultimately subjected to a visual body cavity search.

Three of the class members as noted by defendants, namely Oscar A., Michael F., and Heidi K., reported some occurrences wholly out-of-sync with other testimony which I found to be credible. Oscar A.'s testimony has been rejected by the Court as not credible. Michael F.'s experience as to waiting for an extended period for a properly sized uniform to be produced has not affected this Court's general damages award primarily because it is aberrant and, thus, properly prosecuted as part of his special damages claim. The other outlier portions of Michael F.'s testimony pertaining to a CO supposedly touching his ears, underarms, and hair were rejected by the Court for the reasons articulated earlier. Similarly rejected by the Court was Heidi K.'s testimony that the CO ran her fingers through Heidi K.'s hair rather than having Heidi K. perform that task herself. Simply put, no testimony that defendants have categorized as "outlier" in nature has influenced the Court's general damages award.

C. Each Aggrieved Party is Entitled to a Fair General Damages Award Absent a Downward Adjustment Simply Because He or She is a Member of a Class Action.

The caption to Part II, B, 3 of defendants' Proposed Findings of Fact and Conclusions of Law reads: "It is `Implicit in the Very Idea of a Class Action' that Individual Recovery is Inherently Lower Than in an Individual Action." (Defs.' Prop. Findings at 21.)

A number of courts have noted that a class member's individual recovery is likely to be less than if that class member pursued his or her claim individually. See, e.g., In re Marcos Human Rights Litigation, 910 F. Supp. 1460, 1468 (D.C. Haw. 1995) ("It is probable the judgment against the ESTATE, had this Court allowed one-on-one trials, would be significantly more than the judgment the jury returned in the aggregate procedure."), aff'd sub nom. Hilao v. Estate of Marcus, 103 F.3d 767 (9th Cir. 1996). This point has been underscored by defendants in apparent response to plaintiffs' reference to the $35,000 paid to each of the individual settling plaintiffs pre-class certification, and to lessen the likelihood of the Court fashioning a general damages award that, when totaled, would have a "potentially devastating impact" on the County. (Defs.' Prop. Findings at 22 (citing Parker v. Time Warner Entm't Co., 331 F.3d 13, 22 (2d Cir. 2003).)

The Court earlier indicated that the sums paid to the settling plaintiffs pre-class certification are of limited value for present purposes. As to the effect that the litigation's class status should have on the size of the general damages award per strip search, the following language from a case cited by defendants, Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), is instructive:

Although the fact that damages are being sought on behalf of a large class does not mean that each member of the class should receive less than his due, it is a reason for care in the formulation of instructions. In cases of this type, a distortion in the size of the award to the individual plaintiff may be magnified thousandfold.

566 F.2d at 209.

This Court certainly takes no issue with the unremarkable proposition in Dellums that an inflated per aggrieved party award is magnified in a class action setting, thereby calling for the trier of fact to exercise utmost scrutiny in making such awards. However, Dellums does not stand for the proposition that an aggrieved party's individual damage award should be reduced simply because he is a member of a class; in fact, in speaking of such an individual receiving "his due," the message seemingly conveyed is to the contrary.

Similarly absent from Parker is support for defendants' position which, if found to be the law, would require triers of fact in assessing damages to adjust the amount depending upon whether the person injured sought redress individually or as part of a class. Presumably, under that logic, the larger the class the lower the per class member award.

It may well be, as I suspect it is, that a comparison of individual and class action verdicts involving the same type of injury, demonstrates such an inverse correlation. But that does not mean, however, that what may often occur as a practical matter should become part of the applicable law, i.e. a requirement to be factored into the decision making process by triers of fact in endeavoring to fashion an appropriate damages award. Neither Dellums norParker, or any other case to my knowledge indicate that it should be and, accordingly, I decline to do so.

Finally, before moving on to defendants' next point, I recognize that class action awards may implicate possible due process concerns as mentioned in Judge Newman's concurrence inParker, a case involving 12 million Cablevision subscribers each seeking $1,000 in damages for privacy violations under the Cable Communications Policy Act. However, the specter of such a crushing verdict, and the concomitant "devastating impact . . . on the defense" (Defs.' Prop. Findings at 22), simply is not in play on the general damages phase of the current litigation.

D. Strip Search Awards in Non-Class Action Cases.

Although numerous strip search class actions have been settled, there are few instances in which a trier of fact has determined the amount of damages in a class action strip search case. As a result, counsel for the plaintiffs and defendants have been required to look almost exclusively to non — class action cases for guidance. Using that prism, defendants maintain that "even in individual actions, the damages awarded in strip search cases have been minimal absent aggravating factors suggesting a gratuitous or malicious effort to demean, debase or degrade." (Defs.' Prop. Findings at 23 (capitalizations omitted).) Among the cases cited for that proposition are Hunter v. Auger, 672 F.2d 668 (8th Cir. 1982);Abshire v. Walls, 830 F.2d 1277 (4th Cir. 1987); McCabe v. Mais, 580 F. Supp. 2d 815 (N.D. Iowa 2008), aff'd in part rev'd in part sub nom. McCabe v. Parker, 608 F.3d 1068 (8th Cir. 2010); McBean v. City of New York, 233 F.R.D. 377 (S.D.N.Y. 2006); Cobb v. City of Columbia, 205 F. Supp. 2d 827 (S.D. Ohio 2001); Kelleher v. New York State Trooper Fearon, 90 F. Supp. 2d 354 (S.D.N.Y. 2000); and Smith v. Montgomery County, Maryland, 643 F. Supp. 435 (D. Md. 1986).

In Hunter v. Auger, the Eighth Circuit in 1982 held that a prison's policy of strip searching visitors to the institution upon uncorroborated anonymous tips involving their purported possession of contraband violated the Fourth Amendment. 672 F.2d at 675. In overturning the district court's determination to the contrary, and remanding the case, the Circuit stated as to the issue of damages:

Appellants have requested an award of reasonable damages. After carefully studying the record evidence, we find that there is no showing of facts justifying an award of more than nominal damages. We note that there is no evidence that appellants here were subjected to repeated incidents that intruded on fourth amendment protections. Each complaint is based on one episode. Moreover, we believe that appellants' fourth amendment rights are fully vindicated here by the grant of declaratory and injunctive relief. Accordingly, we direct the district court, on remand, to allow nominal damages.

Id. at 677.

Hunter does not represent binding precedent in this Circuit. Moreover, the aggrieved parties in that case, unlike here, had the option to "submit[] to a strip search or [to] forego[] the [intended] visit." Id. at 670.

Prescinding from that pivotal distinction, and to the extentHunter may otherwise be viewed, as defendants contend, as authority for the proposition that nominal damages adequately compensate a person subjected to an illegal strip search, that interpretation is, at the very least, difficult to square with Second Circuit law. (See, e.g., Mar. 27, 2008 Memorandum and Order at 8-11.) And, given that the Second Circuit concluded in Kerman that plaintiff's one day loss of liberty might well justify a general damages award in the thousands, see 374 F.3d at 126, it is hard to believe that the grievous affront to human dignity occasioned by being subjected to an unlawful visual body cavity search would not warrant an award considerably in excess of nominal damages. But, in any event, Hunter is of limited value since, to partially reiterate, the visiting plaintiffs in that case had a choice, or option, denied current plaintiffs.

The Fourth Circuit in Abshire v. Walls, defendants advise, "approved an award of $2,000 in compensatory damages and $5,000 in punitive damages to an arrestee who had been subjected to a strip search" under appalling circumstances. (Defs.' Prop. Findings at 27.) As synopsized by the Circuit:

At the police station, Abshire was processed and then handcuffed to a railing. He testified that he made numerous requests to use the telephone, all of which were denied. He also testified that after one such request Officer Krach approached him and told him to "be quiet or I will have you unhandcuffed and have the boys have a go around with you around back." After Abshire responded indignantly, Krach said "lets strip search him." Abshire was then unhandcuffed and escorted to a utility room, where he was forced to disrobe and subject himself to a strip search by Officers Walls and Queen. Abshire testified that a number of other officers were also present in the room and observed the search. After the search, Abshire was placed in a cell until he was released on his own recognizance following a bail hearing later that day.

Abshire, 830 F.2d at 1278-79 (footnotes omitted).

Abshire was decided 23 years ago and, accordingly, the sums involved should be adjusted for inflation. Moreover, the $7,000 total award on the strip search claim was not one of the issues raised on appeal and thus was not, contrary to defendants' assertion, "approved" by the Circuit. Accordingly, its usefulness for present purposes is marginal. McCabe v. Mais is a 2008 case from the Northern District of Iowa. Plaintiffs McCabe and Nelson, two retired schoolteachers, were subjected to "illegal strip searches and visual body cavity searches . . . of plaintiffs' vaginas and anuses." 580 F. Supp. 2d at 820. The verdict returned by the jury totaled $750,000; $250,000 for McCabe and $500,000 for Nelson. In response to defendants' motion for a new trial, the trial court, while recognizing that "courts have uniformly recognized that strip searches and the VBC [Visual Body Cavity] searches are humiliating and degrading," stated "that many of [those] same courts have held that, in the garden-variety illegal strip search or VBC search case where no aggravating facts are present [that such victims] are only entitled to nominal damages." Id. at 835 (citing Hunter and also McBean which will be discussed momentarily). Having said that, however, the McCabe Court concluded that the matter before him was not "on all fours withHunter and therefore some award of compensatory damages is appropriate." Id. at 836. What separated the McCabe plaintiffs from their counterparts in Hunter was that in McCabe, "unlike . . . in Hunter, . . . plaintiffs testified specifically that they suffered emotional distress as a direct result of the strip searches and VBC searches." Id. However, that proof "was not strong" in that, inter alia, "no medical evidence of injury was presented." Id. at 837. Indeed, "[o]nly Plaintiff Nelson offered evidence of more than momentary emotional distress." Id.

Based on the foregoing, and after reviewing awards in other strip search cases, the McCabe Court "order[ed] a remittitur in the amount of $25,000 with respect to Plaintiff McCabe and $50,000 with respect to Plaintiff Nelson."Id. at 837-38. In some ways, McCabe is helpful to defendants in that it utilized the Hunter rationale as a point of departure in determining that the jury award of $750,000 shocked the judicial conscience, warranting a direction that plaintiffs either accept $75,000 or try the case again. But, on the other hand, the remittitur amount is substantial given the limited nature of the injuries sustained. And, like the other cases cited by the parties, the relevance of McCabe is diluted in that the compensatory damage issue was not bifurcated into general and special damages.

After the conclusion of the briefing in the case at bar, the Eighth Circuit affirmed in part and reversed in part the S.D. Ohio's decision. See McCabe v. Parker, 608 F.3d 1068 (8th Cir. June 30, 2010). Although upholding the district court decision granting a new trial and offering remittitur, the Eighth Circuit held that the remittitur amount was too low as it violated the maximum recovery rule.

Defendants place considerable stock in McBean v. City of New York in which a class of pretrial detainees sued the City based on its policy of strip searching all arraigned detainees charged with misdemeanor or lesser offenses, regardless of reasonable suspicion, upon entry to the correctional facility. 233 F.R.D. at 380-81. The parties reached a proposed pretrial settlement, which was ultimately approved by the district court under which, after "bonus or incentive awards" were paid to class representatives, the remaining class members were to "receive $750 if they were subjected to one qualifying strip search, and $1,000 if they were subjected to two or more qualifying strip searches." Id. at 381.

In determining the reasonableness of the proposed settlement, the district court discussed and largely distinguished the major cases cited by the objectors, and noted, in an excerpt underscored by defendants, that "[t]he parties have provided the Court with numerous examples of individual plaintiffs who have, at trial, proven liability on a strip search claim, only to be awarded nominal damages." 233 F.R.D. at 387.

One of those cases was Tyson v. City of New York, No. 97 Civ. 3762 (JSM) in which "a class of pre-arraignment detainees [reached a settlement with the City under which] individual awards . . . averag[ed] . . . approximately $3,800 per person," 233 F.R.D. at 389.

The background information and accompanying analysis in McBean has proven helpful to the Court; nonetheless, its relevance beyond that is marginal at best in that in McBean (1) "[i]ndividual class members [dissatisfied with the settlement amount could]" "opt out and pursue their own claims" pursuant to the terms of the settlement agreement, id. at 388, an option not available to the members of the present class in the post-trial context, (2) the liability issue was unresolved whereas here liability has been conceded, and (3) the settlement presented to the court, by its very nature was a product of compromise, unlike here where my role is to fashion a fair general damages award which fully compensates each class member, independent of any special damages they may seek to assert as a result of being unlawfully strip searched.

Before proceeding to discuss Cobb v. City of Columbus, another case cited by defendants, two more comments concerningMcBean are warranted. Firstly, as noted by plaintiffs, the district court in that case "did not endorse the proposition that only nominal damages would be appropriate for a strip search unlawfully conducted pursuant to an unconstitutional policy." (Pls.' Comments at 54, n. 22.) Rather, its observation that sometimes plaintiffs who established liability only received nominal damages was made by the district court in assessing the "Grinnell factor[]" pertaining to "the risks of establishing damages" should the

City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974).

action proceed to trial. 233 F.R.D. at 386. And that takes us to the second additional comment concerning pivotal distinctions between McBean and the instant case, to wit, "the risk of establishing liability." Id. at 385. That "Grinnell factor[],"id., was the subject of the following comments in McBean:

[U]nder the law of this Circuit a blanket strip-search policy such as the one to which plaintiffs were subjected is clearly unconstitutional. Therefore, the risks of establishing liability at this time are minimal, if not nonexistent. However, the duty of this Court is not merely to determine the risks of establishing liability at this time. Rather, the Court must determine the risks of establishing liability should the settlement be rejected and the case go to trial at some future date. As discussed in [ McBean v. City of New York, 228 F.R.D. 487 (S.D.N.Y. 2005) (" McBean I")] the case law in this area is far from stable. 228 F.R.D. at 498. Shain v. Ellison, the case invalidating a policy similar to the one at issue here, was decided by a divided panel of our Court of Appeals . . . and it may well be in the interests of the class to obtain "a quick resolution[] while the law is in their favor." McBean I, 228 F.R.D. at 498. The question of whether an en banc Court of Appeals, or, for that matter, the Supreme Court, will upset the holding of Shain takes this Court into the realm of speculation. It is enough to observe, however, that there are no guaranties in life, and while it appears likely that plaintiffs would be able to establish liability at trial, things change.

233 F.R.D. at 387 (emphasis in original).

Here, of course, liability has been conceded so the concerns addressed in the above excerpt do not come into play. In sum, McBean is distinguishable to the point of providing scant guidance.

In Cobb v. City of Columbus, the court awarded a plaintiff subjected to an illegal pat-down search $500 for "humiliation, mental suffering and the intangible loss of his Fourth Amendment rights." 205 F. Supp. 2d at 834 (internal quotation marks and citation omitted). Defendants argue that "the damages for `intangible loss' in Cobb seem analogous to the presumed damages for dignity harm here . . ., and that the plaintiff's total compensation, including both these damages and damages for emotional injury were only $500." (Defs.' Prop. Findings at 27 (emphases in original).) The $500 award in Cobb was made in 2001. Thus, to the extent it is germane, an upward adjustment to reflect inflation is required. But its core relevance is virtually nonexistent. The district court in Cobb set the damage award for a "pat-down [that] was light and of short duration," and which caused plaintiff "`a little' embarrassment." Cobb, 205 F. Supp. at 834. Under such circumstances, the $500 award appears appropriate. However, I find myself unable to draw a meaningful comparison between the pat-down described in Cobb and the unlawful visual body cavity searches of the members of the instant class.

In Kelleher v. Fearon, plaintiff brought suit under 42 U.S.C. § 1983 against a New York State trooper, alleging that he was illegally strip searched. 90 F. Supp. 2d at 356. The jury returned a verdict for plaintiff and awarded $125,000 in compensatory damages. Defendant moved for judgment as a matter of law, or in the alternative, for a new trial or remittitur. After declining to disturb the jury's liability determination, the court addressed the compensatory damages award. It began its analysis thusly: "[a]t no point in the trial did Plaintiff produce any evidence of medical treatment or other professional expenses related to his claim of emotional distress." Id. at 363. Given the absence of any proof beyond his own testimony as to "the headaches, sleeplessness and the general emotional distress he claimed to have suffered" as a result of having been strip searched, the court concluded that plaintiff "simply failed to prove an injury."Id. In the court's view, that delinquency did "not mean that [he] must throw out the damages altogether." Id.

The Kelleher court, after noting that (1) "an unlawful strip search, in and of itself, is an egregious violation of Plaintiff's constitutional right to be free from unwarranted government intrusion of his person," and (2) plaintiff testified that the defendant trooper touched him during the strip searched process in violation of State Police policy, ordered remittitur in the amount of $25,000. Id. at 364.

If anything, Kelleher though cited by defendants in their discussion of McBean, seems to favor plaintiffs', not defendants' position in that the district court's reference to plaintiff proving "no injury," stated against the backdrop of the observation that a strip search represents "an egregious violation of Plaintiff's constitutional right to be free from unwarranted government intrusion of his person" suggests, as posited by plaintiffs, that the $25,000 remittitur amount may have "been made primarily for the privacy violation and dignity harm rather than for emotional distress." (Pls.' Comments at 53.)

Smith v. Montgomery County is a 1986 class action strip search decision in which a district court in Maryland held that "[f]or all members of the class whose Fourth Amendment rights were violated, the Court will enter an award of nominal damages in the amount of $200." 643 F. Supp. at 443. The bulk of the decision is devoted to establishing "broad guidelines and procedures to determine membership in the class," coupled with the observation that "[a]rticulating the reasonable suspicion standard is easier than applying it." Id. at 437. Only one paragraph of the decision, six lines in length, is devoted to the damages question. The nature and extent of the proof submitted on damages may not be gleaned from the decision, nor the court's rationale, if any, beyond the statement that the amount awarded per aggrieved individual is likely to "deter defendants from future violations." Id. at 443. Under the circumstances, including the age of the case, Smith sheds little light on the issue at hand.

Another case mentioned by defendants warrants discussion, that being Nolley v. County of Erie. Nolley was an inmate in a county correctional facility who sought injunctive relief and damages for the county's practice of identifying HIV positive inmates via its "red sticker [on their paperwork] and automatic segregation policies." 802 F. Supp. at 901. Plaintiff premised part of her claim to compensatory damages on the doctrine of presumed damages, arguing that "the reasons supporting an award of presumed damages in defamation per se cases are equally valid with respect to the privacy tort proven here."Id. at 903. That argument was adopted by the district court, following its review of various supportive treatises, law review articles, and court decisions. Specifically, the court, sitting non-jury found:

I found that none of the six "European Court of Human Rights" cases cited by defendants (see Defs.' Prop. Findings at 28-29) were of aid to the Court.

Based on the above, the court concludes that presumed damages are appropriate in a cause of action founded on the unwarranted disclosure of a person's HIV status. As the court noted in [a prior decision in] Nolley, "`it is difficult to argue that information about this disease is not information of the most personal kind. . . .'" Nolley [ v. County of Erie], 776 F. Supp. [715 (W.D.N.Y. 1991] at 731 (quoting Woods v. White, 689 F. Supp. 874, 876 (W.D.Wis. 1998), aff'd without opinion, 899 F.2d 17 (7th Cir. 1990)). Unwarranted release of this information is virtually certain to cause some injury, yet be the type of injury that is very difficult to prove. It is also likely to cause mental distress. Presumed damages are an expedient way to compensate plaintiff for the injuries she no doubt suffered from defendants' red sticker alert and segregation policies. It must be remembered in this regard that defendants' red sticker policy, which was in effect throughout plaintiff's three confinements, indiscriminately exposed plaintiff's sensitive condition to dozens of persons. Nolley, 776 F. Supp. at 720. Accordingly, the court concludes that plaintiff is entitled to presumed damages for the injury to her interest in privacy.

802 F. Supp. at 904.

In addition to Nolley's claim for presumed damages based on the violation of her right to privacy as a result of the county indiscriminately divulging her HIV positive status to dozens of persons in the correction facility during her periods of incarceration, she also sought special damages for, inter alia, the associated emotional distress she sustained. The Court awarded her "$3,100.00 [for] presumed damages" and "$6,200.00 [for her] emotional distress." Id. at 912.

Defendants maintain that the Nolley presumed damages award of $3,100 supports their position that the presumed, or general damages here should be minimal because "surely the violation in . . . Nolley . . . was more serious" than the body cavity searches suffered by the plaintiff class members. (Defs.' Prop. Findings at 27.) Both of the violations, though involving vastly different conduct, are egregious. An effort to rank them by degree of severity, as defendants proffer, is problematic although the Court will be mindful of the $3,100 presumed damages award in Nolley in fashioning its general damages award. In so doing, I will also consider, of course, that the award was made eighteen years ago, thus requiring an adjustment for inflation together with a countervailing recognition of the hysteria which surrounded a HIV positive diagnoses during the times Nolley was incarcerated in Erie County, i.e. intermittently from mid-1988 to early 1990.

The periods of incarceration are provided in an earlier Nolley decision viz. Nolley v. County of Erie, 776 F. Supp. 715, 717 (W.D.N.Y. 1991).

5. Determining general damages in the present context represents largely uncharted territory. What minimal guidance there is has been gleaned from the cases and other sources cited by the parties and the Court's independent research. Based on those materials, viewed in conjunction with the trial evidence and the arguments of counsel, plaintiffs are hereby awarded general damages of $500 per strip search.

CONCLUSION

The foregoing constitutes the Court's Findings of Fact and Conclusions of Law.

As noted earlier, the number of qualifying searches during the class period appears to be in excess of 20,000. However, until the number of "Book and Bail" inmates, if any, is determined, see footnote 3 supra, the total amount of the general damages verdict against defendants may not be determined. And also, as explained earlier, the special damages sustained by class members is a subject for another day. In that regard, the parties are directed to appear before me on Friday, October 1, 2010 at 3:00 p.m. to discuss that next phase of the proceeding.

SO ORDERED.

Date: Central Islip, New York

September 22, 2010