Employer’s ‘Terror Campaign’ Led to Civil Rights Verdict
Plaintiffs Didn’t ‘Overdramatize’ Testimony At Trial
Top Jury Verdicts of 2001 No. 4 – $4.85 Million
- Davignon, et al v. Clemmey, et al
- U.S. Districts Court, No. 99-11875-WGY
- Date of verdict: May 24, 2001
- Plaintiffs’ attorneys: Leonard H. Kesten, Boston; John P. LeGrand, Somerville; Sol J. Cohen, Somerville; and Michael R. Pizziferri, Boston
It started as a dispute over a paycheck.
It ended as the largest civil jury verdict ever recorded by U.S. District Court Chief Judge William G. Young.
In 1998, Karl D. Clemmey, owner of an autobody shop in Mansfield, used a tire iron to assault his own employee, Neal Davignon, after Davignon complained about a bounced paycheck.
That assault was scary, but it was just the beginning of a living nightmare for Davignon and his family.
Clemmey immediately filed suit to evict Daignon, Patricia Kelley and their children from a living unit that Clemmey owned.
Over the next several months, Clemmey and his son reportedly terrorized the Davignon family, stalking them, strewing trash over their front yard, breaking windows, filing numerous false criminal claims against them and attempting to fracture the family by filing spurious child-abuse claims with the Department of Social Services.
Davignon originally engaged Michael R. Pizziferri of Boston to defend the criminal suits, but Pizziferri said he was soon swamped with work and became too close to the client to be effective in filing a civil response.
So Pizziferri engaged John P. LeGrand of Boston and Sol J. Cohen of Somerville to take command of a civil suit against the Clemmeys, and the Somerville lawyers ultimately tapped Leonard H. Kesten of Boston, who had prior experience defending suits brought by the senior Clemmey.
LeGrand recalls that the four lawyers were in for a long ride.
“The civil and criminal claims between the parties kept growing like a wild plant,” he says.
According to LeGrand, Clemmey threatened to kill the plaintiffs and “to personally dig their graves and put their bodies in [the ground].”
But it was Clemmey who was ultimately buried by a federal court jury that rendered a $4.85 million verdict on May 24, 2001.
Kesten, who performed closing argument and examination of several key witnesses, says, “The concept that we helped to change the lives of two children in a tortured family is something powerful that I’ll take to my grave.”
According to LeGrand, when Davignon complained about a bounced paycheck, the elder Clemmey said: “Finish painting that car, and then you’re fired.”
Davignon replied, “I’ll leave now,” and then Clemmey put a tire iron to his neck and battered him.
Kesten asserts that when Davignon filed charges, Clemmey said, “You better drop these charges or your life will be hell.”
Clemmey was convicted of assault and battery after a jury trial in Attleboro District Court, but that only seemed to inspire more vengeance in him.
Over a period of months, Pizziferri recalls that he successfully defended each of the 23 criminal complaints filed against the Davignon family, including a claim that Kelley attempted to murder Clemmey with her car.
The lawyers say that Clemmey and his son then stalked the plaintiffs, took photos of them, dumped trash on their property, threw things at their windows and cursed at their minor daughters, who were four and six years old at the time.
After Clemmey threatened Davignon, the police issued a complaint for intimidation and obtained a restraining order against Clemmey. Clemmey responded by reportedly throwing a brick through Davignon’s window within hours after issuance of the order.
LeGrand recalls that Clemmey also got a witness to testify that he saw Davignon assault Clemmey, but the witness was 100 yards away with a view obscured by trees and darkness.
Clemmey also reportedly filed a complaint for malicious destruction of property after he saw Davignon trimming the bushes on property rented from Clemmey.
LeGrand says Clemmey next brought an eviction action against the Davignon family and filed false reports with DSS concerning child abuse and neglect.
While DSS did not remove the children, they did talk to neighbors and conducted a full investigation that added to the family’s trepidation.
A social worker concluded that the case had no merit, but noted that the children were playing an imaginary game they called “jail” that involved capture and confinement.
LeGrand adds that Clemmey also filed false charges that Davignon was illegally storing hazardous and explosive materials.
On one occasion, Clemmey reportedly made a 911 call to the local police demanding that they arrest Davignon for an improper oil change on his property.
After a year of suffering, the plaintiffs moved to Rhode Island and filed an action in the U.S. District Court (the jurisdiction based on diversity of citizenship) for assault, intentional infliction of emotional distress and violation of the Massachusetts Civil Rights Act.
The Good Fight
Kesten notes that Clemmey almost convinced Davignon to settle the case for $75,000 prior to trial, but the defendant was done in by his own bravado.
Clemmey mentioned to Davignon, “This is chump change, punk.”
Recalls Kesten: “Then Davignon was ready for trial.”
The veteran trial attorney knew Clemmey was a rich and powerful man who had a history in the courts.
“He has lots of suits on record involving Great Woods and other matters. There’s a long and public record on him that helped us prepare for trial,” explains Kesten.
Cohen adds that Clemmey testified so many times in so many different proceedings that “he didn’t remember he told a different story each time he was on the record.”
At one point in the trial, Clemmey denied a conviction for assault even after LeGrand help up a certified record of the conviction.
But Kesten says the most damning evidence of Clemmey’s behavior was caught on videotape at a meeting of selectmen in Mansfield.
“The tape showed him screaming at the selectmen, and the meeting had to be adjourned until Clemmey could be removed by the police,” Kesten recalls.
Kesten says his team also produced a 911 audiotape in which Clemmey demanded that two police cruisers show up at his house immediately to take him over and arrest Davignon on hazardous waste charges for changing motor oil.
LeGrand says the video and the 911 recording “were key elements in the case that visibly moved the jury.”
According to Kesten, the tapes were particularly critical because the plaintiffs had very little demonstrative evidence and the judge “ran a tight courtroom,” limiting time for cross-examination to a matter of minutes.
But he says there was one memorable cross-examination moment involving a witness who had previously testified that Kelley attempted to run her car over Clemmey.
When asked about the testimony, the witness, a lawyer associated with Clemmey, said, “I have no present recollection of that.”
Kesten says this opened the door for a line he always wanted to deliver: “Did you get that phrase from the Watergate hearings?”
The Davignon team decided to close their case with Kelley’s testimony.
Kesten says, “I have learned from years of defense practice that a plaintiff who overstates their case can create a defense victory. Patty was just very good at telling her the facts, and remembering everything.”
Kesten adds that Kelley did a huge amount of preparation and research prior to trial, calling her “our Erin Brockovich.”
He explains that she prepared an exact chronology and description of events, and helped to uncover damaging material about the Clemmeys.
“Her testimony described specific dates, events and impacts on the family. She testified about her fear of prison and concern for her family, but she didn’t talk about post-traumatic stress or overdramatize her feelings,” says Kesten.
After her testimony, recalls Cohen, “almost the entire jury was crying.”
LeGrand says she described the sequence of events in such a way that “it was obvious Clemmey had tried to keep her off the stand with intimidation.”
Kesten also notes, “The kids never testified, and we had no expert on their suffering. We did not want to use the children, and the jury could see the concern for them through the eyes of the parents.”
He says the defense of the Clemmeys was essentially that all of the individuals involved were equally culpable, so “the jury should put a pox on the houses of both families.”
The jury didn’t buy it. They tagged the Clemmeys with $2.5 million in liability to the children, $1 million to each of the parents and $350,000 for assault.
Pizziferri, a retired marine colonel who served in World War II and Korea, still chokes up remembering that the legal team fought the good fight and won.
He says he really can’t find the words to describe the experience.
Kesten adds that case may have noteworthy effect on future cases. He says the judge allowed the plaintiffs to go forward on the novel theory that a series of malicious prosecutions could constitute a deprivation of civil rights.
According to Kesten, this is useful for lawyers because malicious prosecution has a different statute of limitations and different elements of proof from a civil rights action.
Such was another small victory in a long, harrowing journey for the plaintiffs – one which eventually paid dividends.
By John O. Cunningham. Reprinted with permission from Lawyers Weekly Publications, 41 West Street, Boston, Massachusetts 02114-1233, 800-444-5297 © 2002