(Photo: Anton Prado/iStockphoto.com.)

The U.S. Court of Appeals for the Third Circuit reinstated a $4 million verdict in a Newark police misconduct case, ruling that the District Court erred by vacating that verdict and reinstating a prior one for $2.7 million.

The second verdict was apparently vacated, along with an order remitting the first verdict to $750,000, under a plan to avoid a third trial in the case, the appeals court said on Thursday in Lesende v. Borrero.

But that motivation is not a proper basis for vacating the remittitur order, and in so doing the trial court violated the doctrine of law of the case, the appeals court said.

Courts should be loathe to revisit earlier decisions absent extraordinary circumstances, and the District Court gave no explanation why it went back on its $750,000 remittitur order, the appeals court said.

The Third Circuit remanded the case for consideration of a remittitur motion on the $4 million verdict in the case.

In vacating the second verdict and the award on remittitur and reinstating the first verdict, the District Court adopted a “procedural scheme” concocted by counsel for Newark, the appeals court said.

Counsel for plaintiff Sara Lesende tacitly approved of the scheme, the court said. But the plan would benefit the city while circumventing Lensende’s Seventh Amendment right to a new jury trial on damages, the appeals court said.

The case concerns the 2004 arrest of Lesende, a Newark resident, after an altercation with Arnold Borrero, an off-duty city police officer. Lesende was looking for a parking space when Borrero pulled her over, claiming she was driving in an unsafe manner.

Borrero severely beat Lesende, broke her teeth and threatened to kill a bystander who tried to intervene. When other officers arrived, they arrested Lesende, charged her with assaulting a police officer and resisting arrest, and detained her for 12 hours. The charges were later dropped, and Lesende brought a civil rights suit against the city and Borrero.

In July 2011, a jury awarded Lesende $2.7 million in compensatory damages, and $75,000 on her husband’s per quod claim, against the city and Borrero. An extra $850,000 in punitive damages was awarded against Borrero.

Newark moved for a new trial, or, in the alternative, a remittitur of the $2.7 million in damages awarded to Lesende. U.S. District Judge Dickinson Debevoise remitted the award to $750,000 on October 7, 2011, but Lesende rejected that sum and went to trial a second time.

The second jury, after a trial on damages only, awarded $4 million to Lesende. The lawyer who tried the case for Newark, Assistant Corporation Counsel Avion Benjamin, asked Debevoise to “refrain from ordering a new trial on damages,” saying “it would be in the best interest of all parties to permit an appeal to the court of appeals for the Third Circuit for review of both liability and damages, rather than order a third trial on damages only.”

But Lesende’s lawyer, Robert Kobin, objected to the prospect of Debevoise reducing the $4 million verdict without giving the plaintiff the choice of a third trial on damages. As an alternative, Debevoise suggested vacating the October 7, 2011 remittitur order and reinstating the first jury’s verdict, and the parties accepted that proposal.

On appeal, both sides protested the vacation of the second verdict and reinstatement of the first verdict. Newark claimed the second verdict should have been reduced to $750,000, while Lesende said the judge erred by failing to enter compensatory damages of less than $4 million.

At the Third Circuit, Judges D. Michael Fisher, Anthony Scirica and Robert Cowen found both parties participated in creation of the scheme they sought to overturn.

Newark, represented at the Third Circuit by John Scott of Hardin, Kundla, McKeon & Poletto in Springfield, claimed on appeal that Debevoise took actions that “were not based on the merits or for justice, but because the court was attempting to avoid a third trial and trying to create jurisdiction for appeal” and that such factors “improperly influence the trial court’s decision making process.”

Cowen called Newark’s position a “totally inappropriate mischaracterization of the District Court’s actions,” noting that the city explicitly asked Debevoise to enter an order reducing the jury award, refraining from ordering a new trial and ensuring that the case be deemed final for purposes of an appeal.

Lesende, for her part, helped to create the scheme, the panel said. Instead of merely arguing that the city’s request would deprive her of her Seventh Amendment right to a choice between remitted reward and new trial, her counsel approved the vacatur of the second verdict and reinstatement of the first, the panel said.

The appeals court said it was inclined to rest its inquiry upon finding that neither party had clean hands. But Debevoise’s October 7, 2011 order remitting the first verdict to $750,000 was “well-rooted in both law and fact” and his unexplained vacation of that order was “an abuse of discretion.”

Plaintiff lawyer Kobin said he believes Debevoise was “legally within his right under the 7th Amendment and remittitur law to go back and give me my other verdict.”

Kobin, of Nusbaum, Stein, Goldstein, Bronstein & Kron in Succasunna, took issue with the appeals court’s objections to Debevoise’s vacation of the order remitting the first verdict to $750,000.

“I don’t understand, as I sit here, how a remitted order that we rejected could become law. Once we reject that, that order’s gone,” said Kobin.

Scott, the city’s appellate counsel in the case, and Benjamin, its trial lawyer, did not return calls.

Contact the reporter at ctoutant@alm.com.