Aug 20, 2008 By Jennifer Harr 4 min read

A $28 million verdict handed down against two state police troopers was not unconstitutionally high, attorneys for the father of Uniontown boy shot fatally shot in 2002 argued Tuesday. Earlier this year, a federal jury in Pittsburgh awarded Michael Hickenbottom $24 million in punitive damages and just more than $4 million in compensatory damages for the Dec. 24, 2002, death of his 12-year-old son, Michael Ellerbe.

The damages were awarded against Trooper Samuel Nassan and Cpl. Juan Curry, who chased Ellerbe from a stolen vehicle in Uniontown’s East End neighborhood. Testimony indicated that bullets were fired from both troopers’ guns. One of those shots hit Ellerbe, and killed him.

Police said he had been running with his hands in his pocket, and they suspected he may have a weapon. When Curry’s gun discharged as he hopped a fence during the chase, according to testimony at the trial, Nassan believed Ellerbe had shot him, and fired a shot.

Hickenbottom’s attorneys, however, argued that police shot at Ellerbe intentionally and then engaged in a cover-up. The 10-person jury ultimately awarded $12 million verdicts against each of the troopers, which has been contested as too high an award by the troopers’ attorneys.

They have filed paperwork asking for a new trial, or a reduction in the award. The most recent filing centered on a U.S. Supreme Court decision that limited the amount of punitive damages award in a maritime civil case.

Attorneys for the police argued that the ruling limited punitive damages to a 1-1 ratio with punitive damages.

Compensatory damages are meant to make a plaintiff whole. Punitive damages are awarded above and beyond those, and are meant to punish a civil defendant and deter future, similar conduct.

But Hickenbottom’s attorney, Robert Giroux Jr., argued Tuesday that the 1-3 ratio of compensatory to punitive damages in this case is far from unconstitutional, “especially in light of evidence and testimony establishing that the entire defense was based upon fabrications.”

After reviewing other awards of punitive and compensatory damages, the Supreme Court justices found that a fair ratio is 1-1. The review came in the case of $5 billion in punitive damages levied against Exxon Mobil when the Exxon Valdez in 1989 hit a reef and spilled 11 million gallons of crude oil into Prince William Sound in Alaska.

The commander of the boat had been drinking when the accident occurred.

While the Exxon case has to do with punitive damages awarded in a maritime case, the troopers’ attorney argued that it was “clear that the court’s decision is not limited to maritime cases.”

Giroux argued that is not so.

The Exxon case is not applicable because it deals solely with federal maritime jurisdiction and the U.S. Supreme Court indicated, “we are reviewing a jury award with conformity with maritime law, rather than the outer limit allowed by due process,” he indicated in his filing.

He also noted that the Exxon case was to recover economic losses, not non-economic losses, like those associated with the Ellerbe case.

He argued that there was “absolutely nothing” in the Exxon case that “would even remotely suggest that it has any bearing on the case and bar and, thus, the court should reject defendants’ argument to the contrary.”

Giroux also addressed an argument that the punitive damage award should have been in line with the troopers’ salaries.

He argued that he didn’t have to introduce evidence of the financial worth of Nassan and Curry, and that their attorneys could have.

Giroux said they “cannot now complain that the punitive damage award is too great for them to bear.”

“The jury was clearly intent on deterring the defendants and others from engaging in similarly behavior in the future. There is absolutely no evidence that the jury’s award was influenced by prejudice. None of the parties nor this court may invade the province of the jury and second-guess its award by remitting it,” Giroux wrote.

U.S. District Judge Joy Flowers Conti, who presided over the trial, is still evaluating requests to overturn the verdict or lessen the jury award.