LINDA M GILBERT V DAIMLERCHRYSLER CORP
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STATE OF MICHIGAN
COURT OF APPEALS
LINDA M. GILBERT,
UNPUBLISHED
July 30, 2002
Plaintiff-Appellee,
v
No. 227392
Wayne Circuit Court
LC No. 94-409216-NH
DAIMLERCHRYSLER CORP,
Defendant-Appellant.
Before: Whitbeck, C.J., and Fitzgerald and Markey, JJ.
PER CURIAM.
A jury awarded plaintiff Linda M. Gilbert $21 million for her claim that defendant
DaimlerChrysler, Inc.,1 violated the Michigan Civil Rights Act (CRA), MCL 37.2102 et seq.,
when its agents, some of Gilbert’s coworkers and supervisors, sexually harassed her for more
than seven years. Chrysler now appeals as of right from the trial court’s order denying its motion
for an evidentiary hearing, judgment notwithstanding the verdict (JNOV), a new trial, and
remittitur. We affirm.
I. Basic Facts And Procedural History
Following her graduation from high school in 1977, Gilbert held jobs at McDonald’s and
Comerica Bank before attempting to obtain a better job with Blue Cross and Blue Shield of
Michigan. When the job with Blue Cross did not materialize, Gilbert decided to become a
millwright. Millwrights are skilled tradespeople who work mainly with metals, installing,
maintaining, and repairing machinery. This is heavy, dirty, and sometimes dangerous work,
which interested Gilbert because of the combination of technical knowledge and athletic skills it
requires. In the automobile industry, millwrights are considered among the elite skilled trades
because they are responsible for keeping the assembly line moving. In 1986, Gilbert applied to
the Millwrights Institute of Technology, where she was accepted and began her four-year
millwright apprenticeship. In 1990, Gilbert became a journeyman millwright, having finished
the apprenticeship and the many hours of work it required. She spent her first two years as a
journeyman working as an independent contractor through her union.
1
In order to be consistent with the majority of testimony and documentary evidence presented in
this case, we refer to defendant as Chrysler.
-1-
Because of layoffs common to the trade, Gilbert worked very little during fall 1991 and
winter 1992. At the same time, Gilbert, who had been abused as a child and had a history of
alcoholism and cocaine use, began having personal problems. While details of this period in her
life are not particularly clear, she was arrested for drunk driving and was involved in an
altercation at a bar around this time. In early 1992, Gilbert sought treatment for her substance
abuse problems from Steven Hnat, a psychiatric social worker who specializes in treating people
with substance abuse problems. According to Hnat’s evaluation, Gilbert had a substance abuse
problem and the depression she was experiencing was a symptom of that substance abuse, not a
separate condition. Despite Gilbert’s history of abuse as a child and poor family support, Hnat
thought that Gilbert was a resilient and motivated person with a good prognosis for recovery, in
part because she had initiated treatment voluntarily. By the end of February or the beginning of
March 1992, Hnat believed that Gilbert was clean and sober.
In March 1992, Chrysler hired Gilbert to work at its new Jefferson North Assembly Plant.
Gilbert was the first female millwright in the plant; in fact, she was the only female skilled
tradesperson for the first 1½ years she worked at the plant, and the only female millwright for
her first two years there. According to Gilbert, her male coworkers immediately started
harassing her because she was a woman. Gilbert spent her very first day working for Chrysler in
training with other millwrights. One millwright remarked that they had finally been assigned a
“bitch,” and another made a comment suggesting that she should wear a dress to work and he
would hold a ladder for her to climb so that he could look up her skirt.
These comments continued in the plant itself, where Gilbert was first assigned to work in
the core assembly area on the second shift. In comments made directly to her, and made in
reference to her among the men, the male millwrights, and some of her supervisors, called
Gilbert “bitch,” “whore,” “cunt,” “asshole,” often adding “fucking” to these epithets.2 Gilbert
hoped that the male millwrights would accept her, or at least leave her alone, once they saw how
competent she was; it is undisputed that Gilbert is skilled in her profession. Though she was
friendly with a few other people in different trades, the millwrights did not change their response
to her. The journeymen millwrights refused to be partnered with Gilbert, which left her to be
partnered with apprentices. Gilbert did not mind working with apprentices generally, but she
asked to be assigned to a journeyman millwright to benefit from his experience at Chrysler,
noting that apprentices would also benefit from working with other experienced journeymen.
Despite never formally declining to work with apprentices, Gilbert felt that always being
assigned to work with apprentices forced her to assume a greater portion of the work because
apprentices were not always able to help when dealing with a problem. On occasion, she had to
fix urgent problems by herself, and then explain to the apprentice what she had done.
Though millwrights must work in teams or small groups to perform certain types of
work, some of the male millwrights refused to acknowledge Gilbert. On one occasion, a male
millwright would not accept the tool that she tried to hand him until a supervisor made a
comment. Despite the danger of trying to perform some repairs without assistance, some male
millwrights would go to sleep or leave the area when they were supposed to help her. Two
2
Throughout this opinion, we use very explicit language without resort to euphemisms or
deletions. We do so advisedly.
-2-
millwrights in particular, Jack Nigoshian and Gerry Ernat, disliked Gilbert, and on at least one
occasion tried to get her in trouble by reporting to her supervisor that she was absent from her
work area when she was actually there. Nigoshian and Gilbert also engaged in a very loud and
public fight with each other at work once. For a two or three week period in her first year at
Chrysler, unidentified individuals left pallets or other items in front of her large tool locker to
block her from getting her tools, which she reported to her direct supervisor. The male
apprentices working with her also received verbal harassment, with some millwrights suggesting
that Gilbert was performing sexual favors for them.
During this first year of work, Gilbert said, she felt the stress of her working conditions
even though she had made very good progress with Hnat. Her depression abated, but Gilbert had
what Hnat deemed a “slip” in July 1992, when Gilbert was again arrested for drunk driving.
Gilbert said that she felt the need to numb her emotions regarding her work environment and the
constant harassment she experienced there. Hnat saw it as a good sign that Gilbert reported this
slip to him and sought inpatient treatment at Sacred Heart Hospital in October 1992. Hnat
thought that working remained an important component of Gilbert’s recovery because it
minimized her exposure to drinking and gave her something on which to focus, though working
twelve hours a day, seven days a week was taxing on Gilbert. Additionally, he observed,
Gilbert’s success at work was tied to her recovery because of her strong identity as a millwright,
her work ethic, and determination not to be forced to leave.
By 1993, one or more unidentified individuals at Chrysler had begun to leave lewd
cartoons for Gilbert, sometimes posting them around the plant before leaving them for her to see.
On May 22, 1993, Gilbert went to her tool box to retrieve a grinder, but found that someone had
taken it. In searching through her toolbox drawers for the grinder, Gilbert discovered a cartoon
entitled “Pecker Wrestling.” In the cartoon, three men are watching a fourth man, who is sitting
on a table with his pants around his ankles. A woman in the cartoon is grasping the seated man’s
penis and, from the expression on her face, appears to be exerting some effort to “wrestle” with
his penis. A second woman is observing the action. Though difficult to discern from the
photocopies in the record, the name “Linda” is written on the cartoon with an arrow to the
woman who is “wrestling,” the name “Bill Barr” – the name of a welder or millwright who
worked with Gilbert – is written across the chest of the man seated on the table. Names of three
other millwrights who worked with Gilbert and arrows pointing to the three other men in the
cartoon are also visible. There is a question mark over the second woman in the cartoon.
Gilbert reported this incident to her supervisor, Harry Pilon, and in writing to Chrysler
management, providing management with a copy of the cartoon.3 She noted that she thought the
cartoon was “obscene,” citing the names written on the cartoon as names of people with whom
she worked. As she saw it, the woman named “Linda” in the cartoon was “bare-breasted and
about to perform fellatio.” Gilbert stated that she was “extremely insulted and degraded. The
insinuation that this happen[ed] between” her and a man with whom she worked “everyday” was
3
The record suggests that one of Gilbert’s acquaintances may have seen her crying about the
cartoon, and that acquaintance may have taken the cartoon to Pilon. In any event, Pilon directly
knew of the cartoon.
-3-
“humiliating.” Gilbert did not mention any earlier incidents of sexual harassment in her written
report.
Two days later, Frank Battaglia, Sr., an employee in Chrysler’s human resources
department, discussed the situation with Pilon, Jerry Heikkila, who was Gilbert’s union steward,
Joe Christman, who was the area coordinator, and Dave Standen, who was the shift operations
manager essentially in charge of the workforce in the entire plant. They agreed to talk to all
thirty-six millwrights in the core area to explain that the matter was serious and to inform them
of Chrysler’s sexual harassment policy. Christman and Pilon apologized to Gilbert about the
incident and reassured her that Chrysler did not condone this conduct. Though a memorandum
indicates that Battaglia and others carried out their intentions to speak with the other millwrights,
Gilbert said that no such thing happened. In fact, she said, she found a copy of Chrysler’s sexual
harassment policy and gave it to some of the other workers.
After Gilbert reported the wrestling cartoon to management, the other millwrights started
making hushing noises in her presence and calling her a “snitch.” About a week and a half after
finding the wrestling cartoon, on June 5, 1993, Gilbert went to her toolbox, only to find that
someone had taped a Polaroid photograph of male genitalia to the top of it. She reported this
incident to Pilon and Battaglia. Battaglia spoke with Gilbert and Pilon about the Polaroid, but
did not separately investigate it, partly because that was not his responsibility and partly because,
he later claimed, the investigation into the wrestling cartoon was still underway. Chrysler never
determined who had left this cartoon or photograph.
Battaglia and Pilon decided that the best remedy to the problem would be to transfer
Gilbert. When Gilbert consented, Chrysler assigned her to the third shift in the paint shop.
Though a more favorable shift, this was not a favorable assignment because the paint shop had
noxious fumes, which was of particular concern to Gilbert, an asthmatic. No one alerted
Gilbert’s supervisors in the paint shop that she was being transferred because of the sexual
harassment that had occurred in the core area.
Gilbert apparently remained clean and sober until July or August 1993. Hnat, who
continued to treat her, thought this was extraordinary given the pressure Gilbert had been under
in June 1993, when Gilbert reported that her union representative was pressuring her to drop her
complaint and the sexual harassment had continued. Gilbert, however, had developed a major
depressive disorder, which was different from the depression symptomatic of alcoholism that
Hnat had seen in Gilbert at the beginning of her treatment. This major depressive disorder was
permanent, had affected Gilbert’s mood, ability to move, articulate, think, and function. But
Gilbert was still determined to prove that she could persevere at work, refusing to take time away
from work even when she injured her back, fearing that she would be seen as weak.
Gilbert relapsed into alcoholism at the end of summer 1993, and her psychiatric situation
had worsened by September 1993. As of November 1993, Gilbert was bingeing on alcohol after
work. Throughout this time, though he was aware of Gilbert’s other personal problems, Hnat
remained convinced that the sexual harassment she was experiencing at work was the primary
reason why she turned to alcohol. With her alcoholism spiraling out of control, Gilbert admitted
herself to Sacred Heart Hospital in November 1993. This hospitalization may have coincided
with her attempt to commit suicide by cutting her arm. Her Sacred Heart Hospital records noted
that sexual harassment at work remained her greatest risk factor for future relapses.
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Sacred Heart discharged Gilbert in December 1993. She remained sober for a few
months. Hnat last saw her in January 1994. In March 1994, close to her second-year
anniversary with Chrysler, Gilbert sued Chrysler for discrimination in the form of sexual
harassment, as well as under a number of other theories. Though the chronology of events
during this time is unclear, Gilbert claimed to continue to experience almost daily harassment
even after filing suit. She had also lost a significant amount of weight, approximately fifty
pounds. At about this time, more nonverbal incidents began occurring even though she moved
from the paint shop back to the core assembly area. For instance, someone left a Penthouse
magazine on her toolbox. Another day, Gilbert left her can of diet Pepsi on the table in a break
area to respond to a repair call. When she returned, someone had placed a magazine next to her
drink to make it look as if she had been reading an article entitled “Why Men Have So Many
Sperm.” That summer, in a separate incident, Gilbert returned to an area that she had blocked
from public view to use as a changing area to find that someone had urinated on a chair on which
she ordinarily sat to change her boots.4 She did not report these incidents immediately, and Hnat
thought Gilbert was doing “pretty well.”
Some time in fall 1994, Gilbert found an article entitled “10 Times A Day Is Too Many”
by Dr. Ruth Westheimer in her locker. Drafted in a question and answer format, the person
requesting advice asked:
Q: My girlfriend and I are very much in love and as we are both very
highly sexed people, we make love often – up to 10 times in a day or night.
However, we both find it very frustrating when my penis won’t perform!
Sometimes it gets too sore, or at other times after lots of sex it just won’t rise no
matter how much I want more. What can I do?
The response was straightforward:
A: The first thing I [Dr. Westheimer] would suggest: Don’t make love 10
times in a day or night. Make love only once a night and prolong it with foreplay,
but don’t put all that pressure on your penis to perform or you are going to get
into trouble. Lovemaking can be holding hands, cuddling or having and intimate
conversations, but it’s not trying to get into the Guinness Book of World Records.
Chrysler was aware of this article no later than October 10, 1994.
Again, though not clear on when this happened, Gilbert said that someone taped another
lewd or derogatory cartoon to her toolbox or locker with the word “bitch” written on the tape.
When she reported this incident, a supervisor, Richard Castleman, advised her to act like it did
not bother her. Consequently, she left the cartoon taped to her toolbox or locker for two weeks,
until someone else removed it.
4
Apparently, the male workers changed into their clothes in the aisles and did not walk the
distance to their designated locker rooms, so Gilbert had adopted a similar practice, fashioning a
changing area that allowed only her feet to be visible to people in the vicinity.
-5-
On October 10, 1994, Gilbert returned to her locker only to find that it had been pried
open and someone had left a cartoon entitled “Highway Signs You Should Know” in the locker.
The cartoon had fourteen “signs” that used drawings of naked bodies or body parts engaged in
sexual activity to illustrate the meaning of each “sign.” For instance, for “men at work,” the
cartoon showed a man and woman having intercourse. Gilbert reported the cartoon to Pilon and
to management. Maya Baker, a human resources employee, spoke with Gilbert. Baker
suggested that Gilbert use a designated locker room, which was a relatively long distance from
her work area, instead of her makeshift changing room, so she would draw less attention to
herself. Baker also spoke to the union stewards on the three shifts and stopped by Gilbert’s work
area several times before and after she reported to work to see if she could find anyone leaving
the cartoons. Baker wanted to make it known to the workers that Chrysler was investigating
Gilbert’s allegations and that the person caught harassing Gilbert would be punished. Baker
never caught the person who left the cartoon and lost touch with Gilbert because of Chrysler’s
policy of rotating human resources personnel through different shifts every few months.
In November 1994, Chrysler deposed Gilbert for the first time. In this deposition she
detailed the comments and harassment, including some incidents she had not previously
reported. Following this deposition, Gilbert indicated, no one from Chrysler approached her or
attempted to investigate any of her complaints, though she continued working at the Jefferson
North Assembly Plant as a millwright.
On March 12, 1995, Gilbert discovered an illustrated “poem” entitled “The Creation of a
Pussy” that had evidently been posted in the carpenters’ shop, about twenty yards from the
millwrights’ shop:
Seven wise men with knowledge so fine,
created a pussy to their design.
First was a butcher, smart with wit,
using a knive [sic], he gave it a slit.
Second was a carpenter, strong and bold,
with a hammer and chisel, he gave it a hole.
Third was a tailor, tall and thin,
by using red velvet, he lined it within.
Fourth was a hunter, short and stout,
with a piece of fox fur, he lined it without.
Fifth was a fisherman, nasty as hell,
threw in a fish and gave it a smell.
-6-
Sixth was a preacher whose name was McGee,
touched it and blessed it and said it could pee.
Last came a sailor, dirty little runt,
he sucked it and fucked it and called it a cunt.
Running around the border of the “poem” were caricatures of each of the seven “wise” men
posed or brandishing an item that reflected each man’s “skill;” the sailor, for example, was
shown having intercourse with a woman. Gilbert reported this to Pilon and management. Tim
Holland, a facilitator in the human resources department and member of Chrysler’s new Civil
Rights Committee, handled this complaint. Though he had not had any previous involvement
with Gilbert’s complaints, he was aware that she had been experiencing harassment. Holland
took a photograph of the bulletin board with the “poem” and spoke with Gilbert, who said that
she did not want anyone fired over the incident, she just wanted the harassment to stop. Chrysler
then removed the bulletin board.
Almost immediately after seeing the “poem,” Gilbert relapsed to a severe degree,
expressing fear that men who were originally involved in the harassment, who had been off of
work for some time for other reasons, were returning. Though the details, including the exact
time, are sketchy, Gilbert evidently turned on the gas in her oven and tried to go to “sleep.” She
went through detoxification at Sacred Heart Hospital from April 11, 1995, through April 25,
1995. She was either rehospitalized or participated in an intensive outpatient therapy program
from April 27, 1995, through May 4, 1995, at the Eastwood Clinic. She did not remain sober,
and was admitted to Harper Hospital for detoxification on July 8, 1995. Her records indicated
that she was no longer suicidal by July 18, 1995.
Gilbert returned to work again after this hospitalization. In March 1997, Gilbert
encountered a male coworker who kept insisting over and over again to her that he had a “big
meat.” She reportedly responded “whip it out,” and told her supervisor about this incident. This
coworker was reprimanded. At another time, Gilbert asked her supervisor, Gordon Potempa,
about the allowable variation or tolerance in an adjustment she had to make in a repair, to which
he barked that she had to make the repair to within a “cunt’s hair.” She reported this incident,
and Potempa – who had a history of being disciplined for inappropriate language – was
reprimanded. On another occasion, Gilbert asked Herbert Hicks, her supervisor at the time, a
question about work and he told her to “clean out” her “fucking ears.” She did not report this
comment at the time.
Even before Gilbert began drinking again, her new therapist, social worker Carol Katz,
noticed that she was using food to replace her addiction to alcoholism, which was a warning sign
of what was to come. In September or October 1997, Gilbert tried to commit suicide for a third
time by cutting her wrists. She was admitted to St. John’s Hospital. When she returned to work,
she claimed, the harassment continued. She was readmitted to St. John’s Hospital in 1998 and
admitted to Bon Secours Hospital in 1999.
Gilbert’s lawsuit went to trial in June 1999 while she continued to work for Chrysler.
From the outset, Gilbert’s attorney, Geoffrey Feiger, informed the jury that Gilbert had a
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longstanding substance abuse problem. However, his theory of the case was that Gilbert was in
recovery by the time she started working for Chrysler, her prognosis was very good, her
relatively lengthy sobriety demonstrated her motivation for and commitment to staying sober,
and only the relentless sexual harassment pushed her back into alcoholism. Indeed, this
alcoholism was more severe than what she had ever experienced in the past, and was
accompanied by major depressive disorder, a new, permanent, and serious psychiatric condition
that could lead to her death through suicide or the physical effects of continued alcoholism.
Under this theory, Chrysler was legally responsible for Gilbert’s damages, including future
medical expenses, because she had reported the harassment as early as May 1993, and Chrysler
never investigated the harassment nor stopped it.
Feiger laid the factual foundation for this theory that Gilbert worked in a hostile
environment by having several of Gilbert’s coworkers testify. Dennis Whitenight and Fred
Lemmerz were both friendly with Gilbert. Though neither man was a millwright, they were able
to observe her working, and considered her to be very good at her work. Both men corroborated
Gilbert’s claims of individual acts of sexual harassment. For instance, Whitenight saw that the
other millwrights would not help Gilbert, but just watched her work. In his view, it was no
secret that they did not like having a woman work with them. Whitenight saw cartoons left for
Gilbert, and even removed some before she could see them because he knew how upset Gilbert
was about the harassment. Lemmerz was with Gilbert when she discovered that someone had
urinated on her chair, noting that the odor was unmistakable. Both Lemmerz and Whitenight
commented that the male millwrights did not treat each other the way they treated Gilbert, the
harassment was open and obvious, and the supervisors should have been aware of what was
happening. In fact, in his thirty-one years working for Chrysler, Lemmerz had never seen
anyone treated as badly as Gilbert had been treated. Lemmerz confirmed that, until he retired in
1999, he heard people make harassing comments toward Gilbert. Both men also observed the
radical changes in Gilbert’s weight, her crying at work, and depression. Robert Gupton, a tool
and die maker, echoed Whitenight’s and Lemmerz’s testimony about Gilbert. Gupton was
impressed at Gilbert’s skills, but he had seen that the male millwrights did not like her. Further,
though Pilon thought that some of the incidents that Gilbert detailed were more akin to rough
“shop talk,” even Pilon conceded that some of the incidents, like the Polaroid photograph of a
penis, were unusual and “improper.” Similarly, even though Standen viewed shop talk as a fact
of life in the plant, he thought it was inappropriate.
Feiger asked each Chrysler employee about what, if any, investigation or remedial action
the company had taken in response to Gilbert’s situation. Battaglia claimed to be responsible for
investigating only the penis wrestling cartoon incident, and maintained that talking with the other
supervisors and union representatives was an adequate response to Gilbert’s complaint. He
believed that these supervisors had talked with the people working with Gilbert and gave them a
copy of the sexual harassment policy, though he had no documentation that they did so. Pilon
suggested that someone had tracked who received the policies. However, unlike the
circumstances when Chrysler handed out other policies to the workers, it did not have the
individuals sign a form to confirm that they had received a copy of the policy. Chrysler did not
attempt to compare the handwriting on the wrestling cartoon with any of the employee records, it
did not set up cameras for surveillance, as it had done when there was a theft/sabotage problem
in the plant, nor did it assign someone on the floor to report harassment directly to management.
Neither Battaglia nor Pilon confronted any of the men named in the penis wrestling cartoon. On
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occasion, Pilon asked some of the men about the cartoons, but he never learned who was leaving
them. However, Christman said that he had met with at least some of the men named in the
penis wrestling cartoon, including Bill Barr, who had denied playing any role in leaving the
cartoon for Gilbert.
Feiger attempted to underscore the inadequacy of Chrysler’s response in general by
asking Pilon, “If somebody peed on [former Chrysler Chairman] Lee Iacocca’s chair, [do] you
think he could find out who did it?” Pilon responded, “I believe so.” Feiger then asked Pilon,
who was seated with the defense as Chrysler’s representative during the trial, whether Jurgen
Schrempf was Chrysler’s new chairman following its merger with Daimler. When Pilon
responded affirmatively, Feiger asked, “If somebody peed on Mr. Schrempf’s chair, do you think
they would find out who did it?” Pilon again responded, “Yes, I believe if someone peed on his
chair. If someone peed on my chair, I could find out who did it, sir.” This prompted Feiger to
ask, “Except nobody would find out who peed on Linda Gilbert’s chair?” Pilon replied, “If I
suspected someone, I would point them out.” This last comment pointed to an overarching
theme in the testimony of Battaglia, Pilon, and Baker. Namely, they claimed numerous times
that it was Gilbert’s responsibility to inform her supervisors or management of who was
harassing her, and until she could identify her harasser or harassers, Chrysler could do nothing to
stop the harassment – if it was actually harassment.
Hnat, who testified for four days as an expert, provided the most cohesive testimony at
trial in terms of providing a timeline of Gilbert’s improvement, relapses, short-term recoveries,
and prognosis. Looking at Gilbert’s sobriety between March 1992 and July or August 1993,
including her “slip,” Hnat concluded that she could be considered among a small group of people
with the best prospect for lasting recovery. Studies he had read and his own experience as a
therapist indicated that the majority of alcoholics – about seventy-two percent – relapsed within
the first six months of recovery, which Gilbert did not do despite the stress of work. An even
greater percentage of people relapsed within the first year of recovery, which Gilbert did not do.
In his estimation, her likelihood for success was in the top ten percent of alcoholics who sought
treatment from a professional. Hnat was aware of Gilbert’s drunk driving arrests, but believed
that, regardless of any court orders to seek treatment, she had actually sought treatment out of a
personal desire to recover. He pointed out that the length of her treatment was unusual,
especially because her insurance had stopped paying for treatment and she had to pay for it
herself. Hnat was also fully aware of Gilbert’s troubled past, including: physical and verbal
abuse by family members when she was a child; sexual abuse by someone outside her family
when she was a child; being forced to have an abortion as a teenager; involvement with a
manipulative boyfriend who sold drugs; poor or nonexistent family support; and minimal
opportunities for relaxation. Nevertheless, in his opinion: Gilbert had always complied with his
treatment plan; she was dying from a combination of alcoholism and major depressive disorder,
which had permanently changed the way her brain worked and would cause her physical pain
from pancreatitis or other physical ailments she would likely suffer; the records by other
individuals who treated Gilbert confirmed this grim prognosis; and Gilbert’s poor prognosis was
primarily because of the sexual harassment at work. He believed that for her to make any
significant changes she would need at least six months of inpatient therapy, an additional six
months in a half-way house, and ongoing treatment. Hnat added that inpatient treatment cost
$2,000 per week, and therapists charged about $85 an hour for individual therapy and $45 for
group therapy.
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Katz agreed with Hnat that Gilbert suffered from major depressive disorder, and that this
was a serious, long-term problem. Katz had observed that Gilbert was also suffering from post
traumatic stress disorder in the form of dreams and flashbacks to her childhood abuse because of
the harassment at work. Like Hnat, Katz saw the relatively direct relationship between incidents
of harassment aimed at Gilbert and her relapses and suicide attempts. Katz also agreed that
Gilbert had a strong work ethic, she wanted to persevere, and that she would have had a good
prognosis without the harassment at work. Further, when cross-examined on the matter, Katz
said that had Gilbert’s only motivation for attending therapy been a court order related to a drunk
driving arrest, Gilbert would not have attended therapy for so long. As Katz put it, there were far
easier ways to satisfy the typical treatment required in court orders than the intensive and lengthy
therapy in which Gilbert had engaged.
Katz also had a long history of treating individuals who worked in the automobile
industry, where substance abuse problems, even drinking on the job, was common in the
assembly plants. Her experiences with these individuals led her to believe that Gilbert’s
coworkers would not ostracize her and treat her as badly as they had done and were doing just
because she had a drinking problem. Moreover, Katz believed that harassment was a well
known phenomenon for women who tried to break into a male-dominated workplace or career,
irrespective of the individual’s background.
Though denying that Gilbert had been sexually harassed, Chrysler posited numerous
explanations for what had happened to Gilbert: the male millwrights did not like her because she
had attended a formal apprenticeship program rather than rising through the ranks and being
trained in the plant like the men; the men did not like to work with Gilbert because she drank on
the job and had attendance problems; the comments and cartoons were commonplace shop talk
not intended to be offensive, and which even Gilbert used; Gilbert was moody, difficult to work
with, and provoked the men; if there had been harassment, Chrysler was blameless because
Gilbert did not report the harassment or name her harassers to management under the open door
policy used in the plant; Gilbert’s relapses were attributable solely to the problems in her
personal life and individual failings, including her failure to attend Alcoholics Anonymous (AA)
consistently or follow a twelve-step program; and depression was commonly understood to be an
ailment from which people recovered, not the fatal disease Hnat said it was. Chrysler also
claimed that only the incidents Gilbert directly reported to management could be considered
alleged harassment. From Chrysler’s perspective, because there were long periods between
Gilbert’s formal reports to management, the harassment consisted of a few, isolated events and
Chrysler effectively prevented harassment from happening in the time between the reports.
Chrysler claimed that, having only reported six unrelated acts of alleged harassment, Gilbert
could not prove that she had been subjected to a hostile work environment.
Chrysler had mixed success in providing evidentiary support for these theories. For
instance, Gilbert’s attendance problem was documented and she had once been disciplined for
drinking on the job and being away from her work area. Her supervisors, including Pilon,
indicated that they had given her the benefit of the doubt a number of times because they knew
she was dealing with personal problems. Additionally, all new hires went through a probationary
period, when it would have been fairly easy to get Gilbert fired had the men really desired that
result. Some of the witnesses, like Danielson, also testified that Nigoshian and Ernat, two
journeymen millwrights with whom Gilbert had had significant problems, had been at Chrysler
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for a long time and did not get along with most people. Nigoshian had also left Chrysler around
1995, eliminating the possibility that he had committed harassment later in Gilbert’s employment
with Chrysler.
On the other hand, though Potempa said that some men had asked not to work with
Gilbert because they thought it was dangerous, he did not specifically say that any of the men
had complained about her drinking. Though defense counsel, Johanna Armstrong, asked
virtually all the Chrysler workers who testified whether they had seen Gilbert being moody, no
one ever definitively replied that they had seen that behavior in Gilbert. Rather, some of the men
had seen her try to act calmly in the face of offensive comments. At most, they had seen Gilbert
cry after being harassed or reply when provoked. While some of the Chrysler workers recalled
occasional incidents when Gilbert used a vulgar term, there was no evidence that she used shop
talk regularly.
Armstrong pressed both Hnat and Katz about Gilbert’s failure to attend AA consistently
and whether Gilbert had been telling the truth in her therapy sessions. Hnat indicated that he
believed that AA was generally beneficial to alcoholics, but to a lesser degree for women
because of the dynamics of meetings and the difficulty in finding female sponsors. He also
stressed that he did not think that AA or a similar program was an appropriate therapeutic
approach for Gilbert – even if a court had ordered her to attend. In Hnat’s opinion, AA helps
people to deal with their emotions, but it was vital for Gilbert to minimize, not examine, the very
strong emotions she was experiencing as a first step to her recovery. Only after she was sober
and had some control over what she was experiencing could Gilbert begin to examine what was
happening to her and attempt to develop coping strategies that did not involve alcohol or drugs.
Additionally, Katz explained, Gilbert had tried to attend AA during their work with each other,
but Gilbert’s sponsor had not offered her the support she needed. Katz added that Gilbert had no
reason to lie in therapy.
As for Chrysler’s open door policy, which developed out of a new management plan
negotiated with the union that was supposed to give workers more input into matters at the plant,
Armstrong had a difficult time supporting the idea that Gilbert’s failure to make formal reports
more frequently prevented more action by Chrysler. For example, Michael Jessamy, a human
resources manager who did not have specific knowledge of Gilbert’s experiences, explained the
complaint procedure available. Aside from recourse to the union, Chrysler encouraged
employees to report harassment to their immediate supervisors, and if their supervisors were the
harassers, to go to management. Jessamy did not indicate that Chrysler always required a written
report to human resources, labor relations, or plant security. Holland also made this point, noting
that the supervisors on the floor were often responsible for complaints and would remain
involved in the matter even if the complaint was forwarded to management. There is no question
from the record that Gilbert reported some incidents as they happened to Pilon and Potempa,
even if she did not make a written report. The testimony of Lemmerz, Whitenight, and Gupton
also suggested that the harassment was so open and obvious that it would have been impossible
for Gilbert’s supervisors not to know what was happening to her, even if they did not spend
every minute of the shift with her. Even Holland, who did not know Gilbert and was only
involved in investigating her complaint about the “poem,” had heard about the harassment
Gilbert was experiencing by March 1995. However, perhaps in Chrysler’s favor, Gilbert did
concede that she developed a suspicion about who had left the penis wrestling cartoon in her
-11-
toolbox, but did not want to tell Chrysler because of a combination of her fear of reprisal and the
lack of foundation for her suspicion.
The area in which the defense had the most success was discrediting or minimizing the
effect some of the witnesses might have had on the jury. For instance, Feiger elicited testimony
from Lemmerz, Whitenight, and others that they did not receive a copy of Chrysler’s sexual
harassment policy following the penis wrestling cartoon until Gilbert made the copies herself.
However, Pilon, Battaglia, and Standen’s testimony suggested that Chrysler had taken some
steps to inform the millwrights about the sexual harassment policy, and none of these men
testifying on behalf of Gilbert were millwrights. Armstrong also provided ample testimony that
these individuals did not work directly with Gilbert, and they had only minimal opportunities to
observe the quality of her work and the alleged harassment she experienced. Armstrong, who
emphasized through her cross-examination of Hnat that he was not a medical doctor, also cast
doubt on how well he understood what was happening to Gilbert, pointing out that he may not
have understood that she was under court order to attend therapy, Gilbert may have been
drinking without reporting that to him, and he never took any steps to verify that Gilbert was
experiencing any alleged harassment at work. With respect to Gilbert’s credibility and
vulnerability, Armstrong questioned Gilbert, Hnat, Katz, and others about the many personal
problems Gilbert had. Armstrong elicited information about Gilbert’s troubled past, her history
of treatment and hospitalization before 1992, her alcohol consumption and subsequent discipline
at work, drunk driving arrests, home confinement coupled with drug testing, and loss of her
driver’s license, and the fact that she had been fired from her job at McDonald’s. Armstrong
also read part of Gilbert’s deposition testimony to the jury in which she mentioned finding a
liquid, not urine, on her chair in 1994.
At the close of proofs the trial court, with the explicit consent from Armstrong and
Feiger, instructed the jury on the law before the attorneys made their closing arguments. After
the attorneys gave lengthy closing arguments, the trial court submitted the case to the jury with a
special verdict slip. In returning their verdict in favor of Gilbert, the jury indicated that it found
that Gilbert had been “subjected to sexual harassment in violation of the Michigan Civil Rights
Act,” and Chrysler had notice of the harassment, but did not “adequately investigate and take
prompt and appropriate remedial action.” The jury awarded Gilbert $20 million for her
emotional damages and $1 million for future medical expenses.
II. Sexual Harassment
A. Overview
Following the jury’s verdict, Chrysler brought a motion for JNOV, arguing in part that
the evidence presented to the jury was insufficient to prove that Gilbert was subject to a hostile
work environment, it had actual or constructive notice of the hostile environment, and it failed to
take prompt remedial action. The trial court denied this aspect of the motion, holding that
Gilbert had provided sufficient evidence of severe and pervasive harassment at her workplace
that, when considered as a whole, constituted a hostile environment. With respect to the notice
issue, the trial court held that Chrysler had actual notice that a hostile environment existed as
early as 1993, when Gilbert verbally reported the penis wrestling cartoon to Pilon and in writing
to management, followed by her report regarding the Polaroid photograph, four other reports,
and her deposition, which Chrysler’s agents acting in their official capacity first took in 1994.
-12-
The trial court also found that there was ample evidence that the harassment was constant and
open for all to see, giving Chrysler constructive notice of the hostile environment. Finally, the
trial court found that whether Chrysler’s remedial actions, such as informing the employees of
the sexual harassment policy, were adequate was a question of fact for the jury to decide. On
appeal, Chrysler challenges the trial court’s ruling on each of these components of the motion for
JNOV.
B. Standard Of Review And Legal Standard
The discretionary language in the court rule concerning JNOV and case law suggest that
appellate courts review a trial court’s decision to deny a motion for JNOV to determine whether
the trial court abused its discretion.5 In the end, whether the trial court erred in denying
Chrysler’s motion for JNOV depends on whether there was a question of fact concerning which
“reasonable jurors could have honestly reached different conclusions,” making the jury the
proper arbiter of the facts.6 When reviewing the evidence to determine whether there was a
factual dispute for the jury to settle, “this Court must view the testimony and all legitimate
inferences that may be drawn therefrom in a light most favorable to the nonmoving party.”7
C. Prima Facie Case
Recently, in Chambers v Trettco, Inc,8 the Michigan Supreme Court reviewed in-depth
the law governing sexual harassment in the workplace. The Court began its analysis by noting:
Through the Civil Rights Act, Michigan law recognizes that, in employment,
freedom from discrimination because of sex is a civil right. MCL 37.2102.
Employers are prohibited from violating this right, MCL 37.2202, and
discrimination because of sex includes sexual harassment, MCL 37.2103(i). In
turn, “sexual harassment” is specifically defined to include
“unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct or communication of a sexual nature under the following
conditions:
(i) Submission to the conduct or communication is made a term or
condition either explicitly or implicitly to obtain employment. . . .
(ii) Submission to or rejection of the conduct or communication by an
individual is used as a factor in decisions affecting the individual's
employment. . . .
5
See MCR 2.610(B); Anton v State Farm Mutual Auto Ins Co, 238 Mich App 673, 682; 607
NW2d 123 (2000).
6
Morinelli v Provident Life and Accident Ins Co, 242 Mich App 255, 260-261; 617 NW2d 777
(2000).
7
Id. at 260.
8
Chambers v Trettco, Inc, 463 Mich 297; 614 NW2d 910 (2000).
-13-
(iii) The conduct or communication has the purpose or effect of
substantially interfering with an individual's employment . . . .” [MCL
37.2103(i).]
The statute expressly addresses an employer's vicarious liability for sexual
harassment committed by its employees by defining “employer” to include both
the employer and the employer's agents. MCL 37.2201(a).
Sexual harassment that falls into one of the first two of these subsections
is commonly labeled quid pro quo harassment. Sexual harassment that falls into
the third subsection is commonly labeled hostile environment harassment. We
have previously identified the elements that a party must establish in order to
make out a claim for sexual harassment with respect to each of these categories.[9]
After explaining quid pro quo sexual harassment, the Supreme Court turned its attention to the
hostile work environment theory:
In order to establish a claim of hostile environment harassment, an
employee must prove the following elements by a preponderance of the evidence:
“(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the basis
of sex;
(3) the employee was subjected to unwelcome sexual conduct or
communication;
(4) the unwelcome sexual conduct or communication was intended to or in
fact did substantially interfere with the employee's employment or created an
intimidating, hostile, or offensive work environment; and
(5) respondeat superior.”[10]
Further, the Court noted that
it is always necessary to determine the extent of the employer's vicarious liability
when harassment is committed by an agent. Because the Civil Rights Act
expressly defines "employer" to include agents, we rely on common-law agency
principles in determining when an employer is liable for sexual harassment
committed by its employees.[11]
9
Id. at 309-310 (footnotes, case law, and parallel statutory citations omitted).
10
Id. at 311, quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993).
11
Chambers, supra at 311.
-14-
Nevertheless:
[S]trict imposition of vicarious liability on an employer “is illogical in a pure
hostile environment setting” because, generally, in such a case, “the supervisor
acts outside ‘the scope of actual or apparent authority to hire, fire, discipline, or
promote.’”[12] Hence, we have explained:
“Under the Michigan Civil Rights Act, an employer may avoid liability [in
a hostile environment case] ‘if it adequately investigated and took prompt and
appropriate remedial action upon notice of the alleged hostile work environment.’
Such prompt and appropriate remedial action will permit an employer to avoid
liability if the plaintiff accuses either a co-worker, or a supervisor of sexual
harassment. An employer, of course, must have notice of alleged harassment
before being held liable for not implementing action.”
The bottom line is that, in cases involving a hostile work environment claim, a
plaintiff must show some fault on the part of the employer. . . .[13]
D. Hostile Work Environment
In order to submit her claims to the jury, Gilbert had to prove that the nature of the sexual
harassment to which she was subjected was
“sufficiently pervasive so as to alter the conditions of employment and create an
abusive working environment. Whether sexual harassment at the workplace is
sufficiently severe and persistent to affect seriously the psychological well being
of employees is a question to be determined with regard to the totality of the
circumstances.”[14]
Further, rather than seeing the severity of the harassment from Gilbert’s perspective, the proper
analysis examines whether “a reasonable person in the plaintiff's position would have perceived
the conduct at issue as substantially interfering with employment or having the purpose or effect
of creating an intimidating, hostile, or offensive employment environment.”15
Chrysler claims that Gilbert’s background, emotional problems, and alcoholism made her
a particularly sensitive person. Chrysler also maintains that shop talk and similarly vulgar
activities are the norm in the plant setting, not harassment. Consequently, Chrysler contends, a
reasonable person encountering the same six, discrete, reported acts committed over the course
of seven years would not have considered them so severe that they created a hostile work
environment. Each of these arguments is flawed.
12
Radtke, supra at 396, n 46 (citations omitted in Chambers).
13
Chambers, supra at 311-312.
14
Langlois v McDonald’s Restaurant of Michigan, Inc, 149 Mich App 309, 313; 385 NW2d 778
(1986), quoting Henson v City of Dundee, 682 F2d 897, 904 (CA 11, 1982).
15
Radtke, supra at 372.
-15-
First, Chrysler provides no authority for its proposition that the only acts relevant to the
hostile environment element of Gilbert’s claim were the six acts she formally reported. Instead,
in an argument that dominates its brief, Chrysler asserts its lack of notice defense.16 Case law,
however, instructs that whether conduct is sufficiently severe must be viewed under the totality
of the circumstances.17 The totality of the circumstances in this case encompasses acts that
Gilbert reported, such as the penis wrestling cartoon, and acts that she did not report, such as the
daily comments and derogatory remarks. Thus, we conclude that in determining whether Gilbert
submitted sufficient evidence of hostile environment, the trial court was entitled to look at more
than the six incidents she formally reported to management.
Second, there are competing considerations with respect to Chrysler’s contention that
Gilbert is more sensitive than an average, reasonable person. On the one hand, it appears that
when Gilbert suffered the stress of harassment the damages she sustained were relatively more
severe than those others sustain in that she relapsed into substance abuse and attempted suicide.18
On the other hand, she appears to have been able to withstand the harassment better than others,
maintaining sobriety for much of the first seventeen or eighteen months she worked at Chrysler
and continuing to work more than eighty hours a week despite the harassment.
More importantly, the Supreme Court has concluded that the reasonable person standard
is distinctly objective and does not adopt the view of any particular group or individual.19 There
is no evidence that Gilbert was especially sensitive to what she considered to be harassment; for
example, she did not insist that the men abstain from all profanity. In fact, Pilon, Battaglia,
Potempa, Standen, and other Chrysler workers indicated at trial that the conduct directed at
Gilbert was minimally “improper,” and was likely sexual harassment. It is also interesting to
note that, at trial, the attorneys and some of the witnesses were apologetic for words they had to
use to detail the verbal harassment Gilbert experienced, even spelling certain words to avoid
saying them aloud.
Critically, the reasonable person standard also greatly undermines Chrysler’s argument
that the language at issue in this case is not actionable because it is “just shop talk” commonly
used among the individuals working in automobile manufacturing plants.20 Though the context
of acts and language allegedly constituting harassment is certainly relevant as one of many
factors comprising the totality of the circumstances,21 there is no “reasonable millwright,”
16
In fact, Chrysler concedes that if it had adequate notice of the harassment, “a jury question was
presented on the existence of a hostile work environment.”
17
See Langlois, supra at 313; see also Radtke, supra at 372, 387.
18
To the extent that Gilbert’s susceptibility to damages from what a reasonable person would
interpret as harassment might be germane to this inquiry, and it does not appear at all relevant,
the law is clear: defendants take their victims as they find them, increased sensitivity and all.
See Wilkinson v Lee, 463 Mich 388, 394-395; 617 NW2d 305 (2000).
19
Radtke, supra at 388-394.
20
See id. at 372.
21
See id. at 389-391; see also Oncale v Sundowner Offshore Services, Inc, 523 US 75, 81; 118 S
Ct 998; 140 L Ed 2d 201 (1998).
-16-
“reasonable skilled tradesperson,” or “reasonable automobile plant worker” standard that can be
used to define what constitutes harassment in place of the reasonable person. Even if most
millwrights, skilled tradespeople, or automobile plant workers might have found the language to
be commonplace, the prevalence of harassing conduct or language does not, alone, make it more
acceptable under the Civil Rights Act.22 Accordingly, keeping in mind the objective perspective
the reasonable person standards requires and the favorable manner in which the Court must view
the evidence,23 we conclude that the record leaves no reason to believe that any particular
sensitivity Gilbert had made her perceive the conduct aimed at her as harassing when a
reasonable person would not find it offensive or hostile.
Third, returning to the totality of the circumstances viewed in the light most favorable to
Gilbert,24 a reasonable person would have no trouble concluding that the harassment she suffered
was sufficiently severe and pervasive to constitute a hostile environment. A reasonable person,
for example, would consider someone urinating on that person’s chair to be a hostile act.25
Certainly, there was no evidence that this was an accident, nor an innocuous tradition practiced
among the male millwrights. Similarly, a reasonable person would consider a photograph of
male genitalia left on a woman’s toolbox soon after that woman had reported a previous
harassing incident as a reprisal. One or more people had had evidently delivered this message
previously by assembling pieces of hose to look like a penis, which was left for Gilbert on her
toolbox. Seven years of daily references to Gilbert as a “asshole,” “bitch,” “whore,” and “cunt”
connected these incidents. There was no evidence that this was simply a form of affectionate
familiarity the men used with each other, which they naturally extended to Gilbert. Instead, the
record suggests that these names were used in a derogatory manner, and the dictionary confirms
that the commonplace slang meaning for each of these terms is derogatory.26
Furthermore, this case involved more than name-calling or the occasional bawdy joke
that would have no effect on Gilbert’s working conditions. The evidence presented at trial
indicated that coworkers interfered with Gilbert’s work, refused to help her even when assigned
to do so, and broke into her locker to deliver cartoons and other material. As a whole, these acts
22
See Radtke, supra at 390, quoting Prosser & Keeton, Torts (5th ed), § 32, at 175 (“‘The courts
have gone to unusual pains to emphasize the abstract and hypothetical character of this mythical
[reasonable] person. He is not to be identified with any ordinary individual, who might
occasionally do unreasonable things; he is a prudent and careful person, who is always up to
standard . . . . [H]e is rather a personification of a community ideal of reasonable behavior,
determined by the jury's social judgment.’”).
23
Interestingly, though Chrysler correctly insists that this Court apply the objective reasonable
person standard, its sexual harassment policy provides a subjective standard, saying, “It is
important to note that harassment, in any form, is in the eye of the recipient.”
24
See Morinelli, supra at 260.
25
Cf. Mancuso v Atlantic City, 193 F Supp 2d 789, 803 (D NJ, 2002).
26
See Random House Webster’s College Dictionary (2d ed), p 80 (“asshole” is a “[v]ulgar” term
referring to a “stupid, mean or contemptible person” or “the worst part of a place or thing”), p
135 ( a “bitch” is “a malicious, unpleasant, selfish woman”), p 322 (a “cunt” is an “[o]ffensive”
term used for a woman” and means a “contemptible or unpleasant person”), p 1467 (a “whore” is
“a prostitute, esp[ecially] a woman who engages in promiscuous sexual intercourse for money”).
-17-
sent a clear message to Gilbert that she did not belong at the plant because she was a woman and,
therefore, she should quit. Thus, this case stands in contrast to Linebaugh v Sheraton Michigan
Corp.27 In Linebaugh, this Court held that a cartoon posted in the female plaintiff’s workplace
depicting her and one of her male coworkers in sexual activity was equally offensive to both
individuals, and therefore not “gender-oriented” discrimination actionable under the CRA.28
Needless to say, the sexual activity portrayed in the cartoons in this case was not gender neutral.
Though this case involves precisely the type of conduct the CRA prohibits,29 Chrysler
emphasizes the absence of physical assaults against Gilbert. While that may place the conduct in
this case somewhat lower on the continuum of harassment than the worst abuse ever perpetrated
in an employment setting, it does nothing to redeem the conduct at issue. Nor is there authority
for Chrysler’s suggestion that the law limits recovery to hostile environment cases involving
physical assault. In sum, viewed in the light most favorable to Gilbert, a reasonable person could
conclude that a question of fact existed concerning the degree and pervasiveness of hostility at
this workplace, giving the jury a proper role in deciding this issue.
E. Actual And Constructive Notice
The key point Chrysler makes in its brief on appeal, which the case law amply supports,
is that “an employer must have actual or constructive notice of the alleged harassment before
liability will attach to the employer.”30 In 1982, the United States Courts of Appeals for the
Eleventh Circuit explained the concepts of actual and constructive notice.31 Courts of this state
have since adopted this formulation, which states that
[t]he employee can demonstrate that the employer knew of the harassment by
showing that she complained to higher management of the harassment, or by
showing the pervasiveness of the harassment, which gives rise to the inference of
knowledge or constructive knowledge.[32]
Recently, this Court defined the “higher management” language from this federal precedent to
mean that, for an employer to have actual notice of harassment, the employee must report the
harassing conduct to “someone in the employer's chain of command who possesses the ability to
exercise significant influence in the decision-making process of hiring, firing, and disciplining
the offensive employee.”33 This Court has not, however, altered or further defined the
27
Linebaugh v Sheraton Michigan Corp, 198 Mich App 335; 497 NW2d 585 (1993).
28
Id. at 341.
29
See Radtke, supra at 383 (the harassing conduct need not be sexual in nature, but directed at
the plaintiff because of the plaintiff’s sex).
30
Sheridan v Forest Hills Public Schools, 247 Mich App 611, 621; 637 NW2d 536 (2001); see
also Downer v Detroit Receiving Hosp, 191 Mich App 232, 235; 477 NW2d 146 (1991).
31
See Henson, supra.
32
Id. at 904 (citations omitted); see also McCarthy v State Farm Ins Co, 170 Mich App 451, 457;
428 NW2d 692 (1988), adopting Henson.
33
Sheridan, supra at 622.
-18-
circumstances pertinent to constructive notice.34 Chrysler contends that it lacked both actual and
constructive notice of the reported and unreported harassment Gilbert experienced and, therefore,
it could not be held liable despite the jury’s verdict.
Chrysler claims that, even though Gilbert reported six incidents to management, it lacked
actual notice of these incidents because she withheld the name or initials of her harasser or
harassers. There is no merit to this argument. As the Supreme Court reaffirmed in Chambers, in
order to hold an employer responsible for its employees’ harassing conduct under the theory of
respondeat superior, the employer must have notice “‘“of the alleged hostile work
environment.”’”35 The key word here is “environment.” In order to have actual notice that a
hostile environment exists, an employer need not necessarily have notice of every harassing
incident.36 The amount of information known to the employer, and when it became known, is
relevant to whether the investigation it undertakes and whether the remedy it puts in place is
reasonably adequate. The nature of Gilbert’s complaints, many of which she or which another
Chrysler documented in writing, directly notified Chrysler that she was experiencing harassment
and considered her environment to be hostile to her because of her sex. It cannot be said that
Chrysler was actually unaware of these reported incidents.
Whether Chrysler had actual notice of the incidents Gilbert did not formally report to
human resources, labor relations, or security is a more difficult question in light of the
requirement that an employee report harassment to “higher management.” In a recent case, this
Court held that it was insufficient for the plaintiff, a custodian, to report the harassment to her
supervisor, a head custodian who was not part of management, especially because the sexual
harassment policy in effect informed her to report harassment to an “appropriate supervisor.”37
Pilon, Potempa, and Gilbert’s other immediate supervisors to whom Gilbert claimed to have
reported the harassment most frequently were not part of management. However, Chrysler’s
sexual harassment policy,38 which Jessamy confirmed at trial, instructs employees to report
suspected harassment to an “immediate supervisor or manager. If the complaint is regarding
conduct of his/her immediate supervisor or manager, the employee should contact” a listed
person in the personnel department. If an employee does report the incident to an immediate
supervisor or manager, the sexual harassment policy provides that the immediate supervisor or
manager “should inform the employee that a thorough investigation will be conducted and then
contact the Personnel Manager immediately.” Apparently, though immediate supervisors and
managers may not be considered sufficiently “high” in management to provide actual notice in
other corporations, Chrysler has chosen to designate them as appropriate individuals to receive
34
See id. at 627.
35
Chambers, supra at 312, quoting Radtke, supra at 396, quoting Downer, supra at 234
(emphasis added).
36
See Chambers, supra at 319 (“[N]otice of sexual harassment is adequate if, by an objective
standard, the totality of the circumstances were such that a reasonable employer would have been
aware of a substantial probability that sexual harassment was occurring.”) (emphasis added).
37
Sheridan, supra at 623-625.
38
Chrysler stated this policy in a bulletin, dated May 27, 1993, immediately after Gilbert
reported the wrestling cartoon.
-19-
reports for the purpose of notice for coworker harassment. As Holland suggested, supervisors
can handle some complaints by themselves, and often remain involved in cases once higher
management becomes involved. Accordingly, it is at least arguable Gilbert provided actual
notice of coworker harassment when she informed Pilon, Potempa, and other supervisors about
what she was experiencing, although it was an inadequate method of complaining about
harassment from her supervisors.
Even if reporting these incidents to Gilbert’s immediate supervisors was insufficient to
provide Chrysler with actual notice of the harassment for which she did not contemporaneously
lodge a more formal complaint with someone higher in management, she did report the vast
majority of these events when Chrysler deposed her. Chrysler, however, contends that notice
given to its attorneys after Gilbert filed suit was insufficient as a matter of law. Chrysler does
not provide any authority for this proposition. This case is unusual in that Gilbert continued to
work for Chrysler even after filing suit and had new incidents to report. Of course, to the extent
that she was reporting older incidents in an untimely manner, a jury could certainly consider
whether Chrysler could do anything in response to those older events. However, Gilbert’s
deposition testimony effectively alerted “higher management” of the ongoing harassment
because Chrysler’s attorneys were acting as agents for the corporation in gathering this
information. Chrysler is “‘deemed bound by the acts of [its] lawyer-agent and is considered to
have “notice of all facts, notice of which can be charged upon the attorney.”’”39 In simpler
terms, “[n]otice to an attorney relevant to a given matter is notice to the client employing him in
relation to such matter.”40
Chrysler also claims that any harassment Gilbert suffered was insufficiently obvious and
severe to attribute knowledge of the harassment to the corporation. According to Whitenight,
Lemmerz, and Gilbert, the harassment was harsh and obvious to anyone who worked on the
plant floor, including Gilbert’s supervisors. Even Holland had heard about the harassment
Gilbert was experiencing before he became involved in investigating the “poem” in March 1995.
To the contrary, Baker claimed not to see anything suspicious the times she walked around the
floor and Gilbert’s supervisors characterized much of the conduct at issue as merely
inappropriate, not harassment. Determining what to believe when the evidence conflicts, as with
this issue, is just the sort of question that should be left to the jury.41
F. Investigation And Remedial Action
Chrysler acknowledges that it has an obligation to “take prompt and adequate remedial
action upon notice of the creation of a hostile work environment.”42 Nevertheless, Chrysler
39
See People v Carter, 462 Mich 206, 218; 612 NW2d 144 (2000), quoting New York v Hill,
528 US 110; 120 S Ct 659, 663; 145 L Ed 2d 560 (2000), quoting Link v Wabash R Co, 370 US
626, 634; 82 S Ct 1386; 8 L Ed 2d 734 (1962), quoting Smith v Ayer, 101 US 320, 326; 25 L Ed
955 (1880).
40
Kastle v Clemons, 330 Mich 28, 32; 46 NW2d 450 (1951).
41
See Anton, supra at 689.
42
Chambers, supra at 312, interpreting Radtke, supra.
-20-
claims that it conducted the appropriate investigations and took immediate action after each of
the six formal complaints. Chrysler adds that the length of time between complaints indicated
that the remedies were adequate, and that it cannot be held responsible for investigating and
taking action for all the other acts of alleged harassment, primarily because Gilbert had not
cooperated in reporting them.
According to Gilbert’s proofs, Chrysler did little, if anything, each time she made a
formal report of an incident to management, and certainly nothing that was designed to prevent
future harassment. For instance, none of the witnesses at trial could point to any investigation of
any pre-November 1994 incident Chrysler undertook after it deposed Gilbert, even though a
number of incidents had occurred close in time to the deposition and after it. Chrysler never
found any of the individuals who left the cartoons for Gilbert, broke into her locker, or blocked
her toolbox, though it provided evidence that other people may have experienced similar acts.
Though Chrysler reprimanded Potempa, as well as Gilbert’s coworker who made the “big meat”
comments, there is no evidence that it ever disciplined anyone else for harassing Gilbert, much
less stopped the harassment from occurring. Pilon conceded that if some of what had happened
to Gilbert had happened to either of Chrysler’s recent chairmen, Chrysler could have determined
who committed the harassment. There was also testimony that when there was either theft or
sabotage at the plant, Chrysler had used cameras to catch the perpetrator. Some of Chrysler’s
remedies were also focused on Gilbert, such as transferring her to another shift, rather than
attempting an investigation. Still, Chrysler elicited testimony from Gilbert that she suspected
who had left the cartoon but would not reveal who it was. Her memory of exact dates was also
hazy, making investigation without a contemporaneous complaint difficult or impossible. Some
of the Chrysler employees who testified also suggested that collective bargaining agreements and
other regulations prevented surveillance and other investigation techniques. This is another issue
best left to the jury because the evidence presented by both parties conflicted.43
G. Conclusion
Returning to the standards applicable to the motion for JNOV, it is clear that Chrysler’s
arguments either lacked legal merit or that a factual debate existed with respect to each of the
issues it raises concerning the evidence of Gilbert’s prima facie case. Viewing the evidence in
the light most favorable to Gilbert, we conclude that the trial court did not abuse its discretion in
denying the motion for JNOV on these grounds.
III. Feiger
A. Background
The trial in this case took place over the course of a month. During that month,
Armstrong objected approximately forty-two times. These objections were largely routine
challenges to the evidence, including the relevance of testimony or exhibits and the evidentiary
foundation for statements. The trial court overruled about twenty of these objections and
43
See Anton, supra at 689.
-21-
sustained about fifteen of the objections. Not once during the trial did Armstrong object to
Feiger’s demeanor or his language.
In his closing arguments, Feiger outlined the harassment and damages he argued that
Gilbert had proved and then described how he thought the jury should have Chrysler compensate
her:
The law of this state requires you to consider all of those things from
March of 1992 to the present and into the future.
Now, how you do that, God speed, I don’t know that. You must consider
the days, the minutes, the hours, and the weeks that she went through for seven
years, and for as long as God gives her on this plant [sic], God help her, and
allows her to maintain on this plant [sic], despite the disease that she is suffering
from, the disease that she will suffer from, and that will kill her, you must
consider that, and so that your verdict reflect [sic] the enormity of the wrong, the
intolerable nature of the injury, the extent of the humiliation, the torture, the
extent of the outrage perpetrated upon, I can suggest, and you can go back in your
jury room, and you determine whether this is right. That it should be more, that it
should be less.
But I suggest to you that you award as full and complete justice for the
seven years of past and for the future, whatever it holds, $140,000,000.00 You
can break it any way you want.
No one should ever, “we hold these truths to be self-evident that all people
are created equal. That each one of us is entitled and endowed by our creator with
certain unalienable rights, including those are the right to life, liberty, and the
pursuit of happiness.” And with all due respect, the hopes and dreams of all free
Americans exist in Linda [Gilbert] the way they do in all of us.
And to destroy those, and to subject anyone to the type of indignity and
injustice and intolerable acts that this woman has been subjected to for the past
seven years, that figure reflects a symbol, if you will, since you can’t adequately
compensate her for every –
Armstrong interjected, arguing:
Your Honor, I object. He is strictly going to punitive damages instructions
at this point. He is not talking about compensating for injuries. He is talking
about sending a message.
Certainly, that number is also talking about sending a message. That is
not permitted in this case, your Honor.
Strictly compensation for damages to the extent any liability has been
found.
-22-
Feiger quickly responded, “Let me make it clear. This figure will not adequately compensate
her. This figure is too low. She will never recover her health, but she may recover some sense
of dignity.” The trial court, ruling on the motion, agreed with Armstrong and admonished Feiger
before issuing a curative instruction:
Members of the jury, with regards to the argument of counsel, that is not
to be considered by you as the law that you are to apply in the case. We have
already given you the instructions of law as to the proper elements of damage and
how you are to compute damage. So, if you heard anything that is in conflict with
what the Court told you with regard to that, then disregard what the lawyers say
and rely on your memory of the Court’s instructions.
Feiger then continued with his closing argument. He compared Gilbert’s bravery and fortitude to
the sabras who settled Israel after World War II, to Rosa Parks’ decision to assert her rights, and
to Arthur Ashe’s decision to announce publicly that he had AIDS. He compared Gilbert’s
suffering to the mythological Prometheus enduring a bird pecking at him daily, calling Gilbert’s
experience “abuse,” “torture,” and other terms. Feiger also urged the jury to “ring the bell of
justice” and make a “loud,” “clear,” and “high” award several times. Armstrong did not object
to any of these statements.
After trial, Chrysler moved for a new trial or remittitur because, it claimed, Feiger had
committed misconduct in asking the jury to award punitive damages in this section of his
argument and by asking the jury to ring the bell of justice, as well as by using hyperbole. The
trial court noted that it had properly instructed the jury concerning allowable damages, and the
special verdict slip only provided a space for the jury to award compensatory damages, not
punitive damages. Consequently, the trial court denied the motion because there was “no
evidence here to believe that the jury did anything but award compensatory damages.” With
respect to Feiger’s hyperbole, the trial court indicated that it was “difficult to conclude” that the
comments
diverted the jury from the issues at hand since the comments to which Defendant
objects go to the core of the case. To take just one example, Defendant objects to
his [Feiger] saying that Plaintiff had been exposed to a “living hell” by
harassment. Obviously, the quality of the harassment and its impact on Plaintiff
were directly relevant. . . .
The trial court found it particularly relevant that, if inflammatory, these remarks did not draw a
single objection. In a lengthy footnote, the trial court added that
to paraphrase a writer’s words about a particularly acerbic critic, this might be a
case in which venom serves as its own toxin, so to speak. If a lawyer peppers her
statements to the jury with incendiary and exaggerated references and
comparisons, she risks alienating the jury. Unfounded comparisons and the like
will lead jurors to discount not only the comparisons themselves but everything
else the lawyer says. . . .
[T]he self-correcting nature of the problem becomes especially strong for
allusions to important historical events; at oral argument, counsel for defense
-23-
alleged that Plaintiff’s counsel had gone to the extent of equating what Linda
Gilbert suffered to what the Jews suffered at the hands of the Nazis during Word
War II, the implication being, according to defense counsel, that Chrysler was
equated to the Nazis. The public in general, not only people who lost relatives
during the Holocaust, might be deeply offended by such comparisons . . . .
On appeal, without specifying the precise legal ground on which the trial court should have
granted a new trial, Chrysler contends that Feiger used inappropriate hyperbole at trial that
mischaracterized the evidence and that he appealed to the jury to award punitive damages, partly
on the basis of the Chrysler’s new German ownership.
B. Standard Of Review
This Court reviews a trial court’s decision to grant or deny a motion for remittitur to
determine whether the trial court abused its discretion.44 The abuse of discretion standard of
review also applies to a trial court’s decision to grant or deny a motion for a new trial.45
C. Attorney Conduct
MCR 2.611 permits a trial court to grant a motion for a new trial if a party’s “substantial
rights are materially affected”46 by “[m]isconduct of the . . . prevailing party.”47
When reviewing an appeal asserting improper conduct of an attorney, the
appellate court should first determine whether or not the claimed error was in fact
error and, if so, whether it was harmless. If the claimed error was not harmless,
the court must then ask if the error was properly preserved by objection and
request for instruction or motion for mistrial. If the error is so preserved, then
there is a right to appellate review; if not, the court must still make one further
inquiry. It must decide whether a new trial should nevertheless be ordered
because what occurred may have caused the result or played too large a part and
may have denied a party a fair trial. If the court cannot say that the result was not
affected, then a new trial may be granted. Tainted verdicts need not be allowed to
stand simply because a lawyer or judge or both failed to protect the interests of
the prejudiced party by timely action.[48]
Attorney misconduct can take the form of comments in examination or arguments made directly
to the jury.49 However, given an attorney’s obligation to be a zealous advocate for his client’s
44
See Leavitt v Monaco Coach Corp, 241 Mich App 288, 305; 616 NW2d 175 (2000).
45
See Morinelli, supra at 261.
46
MCR 2.611(A)(1).
47
MCR 2.611(A)(1)(b).
48
Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102-103; 330 NW2d 638 (1982).
49
See, generally, Stitt v Holland Abundant Life Fellowship (On Remand), 243 Mich App 461,
464-466; 624 NW2d 427 (2000); Badalamenti v Beaumont Hosp – Troy, 237 Mich App 278,
290-291; 602 NW2d 854 (1999).
-24-
interests, not every comment or question that vividly draws attention to the lack of merit in the
opposing party’s evidence and arguments is misconduct.50 Rather, to be misconduct, the
comment or question must be designed to inflame the jurors’ passions so they will disregard the
evidence in rendering a verdict, thereby causing unfair prejudice to the opposing party.51
According to Chrysler,
plaintiff’s counsel used declamatory questions, before-the-jury-colloquies, and
closing argument to convey totally distorted, hyperbolic, and inflammatory
descriptions – “daily and brutal sexual harassment, “never ending repeated
incessant activities,” “daily torture, “harassment is far too gentle a word,” “brutal,
brutal sexual abuse,” and the like. He even made the preposterous claim that
plaintiff had suffered “15,000 incidents” of sexual harassment, and asserted
falsely that “some of the supervisors even joined in the abuse.”[52]
We find little support for Chrysler’s claims with regard to Feiger’s comments on most of the
pages it cited. For instance, on one of the pages Chrysler claims Feiger used hyperbole, he
merely asked Hnat why Gilbert “was hospitalized” and what effect “years of sexual harassment,”
which consisted of “never ending repeated incessant activities,” would have on her. Hyperbole
is “obvious and intentional exaggeration.”53 Notably, not one of Feiger’s comments during trial
drew an objection from Armstrong.
As for Feiger’s comments during closing arguments, which is when the majority of the
passages Chrysler now cites occurred, we conclude that they did not amount to misconduct.
Feiger indisputably used vibrant terms to describe the harassment’s severity. However, words
like “torture,” which means “extreme anguish of body or mind,”54 and “abuse,” which means “to
speak insultingly or harshly to or about,” were shocking only because the jury had an evidentiary
basis to conclude that they were accurate characterizations of what had occurred.55 Though
Chrysler contends that Feiger suggested to the jury that Gilbert had suffered physical assaults
when there was no proof of any physical assaults, the context in which Feiger made those
comments does not permit that inference. Rather, as with the other comments, Feiger was
emphasizing the unremitting and severe nature of the harassment, not insisting that anyone had
physically assaulted Gilbert.
50
See, generally, Schunk v Zeff & Zeff, PC, 109 Mich App 163, ; 311 NW2d 322 (1981) (“[A]n
attorney has a duty to be a zealous advocate. The lawyer's obligation to his client thus permits
the lawyer to assert that view of the law most favorable to the client.”).
51
See Esparaza v Manning, 148 Mich App 371, 377; 384 NW2d 168 (1986); May v Parke,
Davis & Co, 142 Mich App 404l 422-423; 370 NW2d 371 (1985).
52
Citations to the record omitted.
53
See Random House Webster, supra at 641.
54
Id. at 1358.
55
Id. at 6.
-25-
More importantly, while Chrysler contends that Feiger misrepresented the record in
arguing that Gilbert’s supervisors engaged in the harassment, Gilbert did provide evidence that
Potempa and Hicks used inappropriate language with her, which the jury might interpret as
harassment. Similarly, though Chrysler maintains that there was no support for Feiger’s
argument that it failed to undertake any investigation, the evidence related to this issue was in
conflict. Chrysler could not document what steps it had taken. This left a credibility contest
between Gilbert, who said that Chrysler did not look into what had happened to her, or if it did,
took no action on her behalf, and Pilon and others who claimed that they had done all that was
possible because she was withholding information.
Further, Chrysler claims that Feiger was drawing parallels between Nazi atrocities against
Jews during the Holocaust with Chrysler as a way to inflame the jury against its new German
ownership. In fact, though Feiger suggested that the jury send a message to the Chrysler board
room in Stuttgart, he never drew any explicit connection between the Nazis and the German
corporation. Rather he referred to the Holocaust survivors who immigrated to Israel as symbolic
of Gilbert’s strength. We conclude that Chrysler’s new corporate identity was never an issue at
trial.
Chrysler clearly mounted a vigorous defense. However, Gilbert and the witnesses
testifying on her behalf provided an ample evidentiary basis for jurors to conclude, consistent
with Feiger’s theories and remarks, that Gilbert truly suffered because of the harassment she
experienced at Chrysler and that Chrysler’s response was either nonexistent or inadequate. The
jury just found Gilbert’s evidence more convincing than Chrysler’s evidence, as was its right.56
The trial court’s behavior stands out against this backdrop of conflicting evidence.
Though Chrysler asserts that the trial court itself acted improperly, the trial court took all
appropriate actions to ensure that the jury understood the limited role of the attorneys’ arguments
and that it applied the proper law when determining liability and calculating damages.57 We
agree with the trial court that the jury’s large award stemmed from the evidence, not from any
allegedly improper argument. As the trial court noted, Feiger’s comments were evidently minor
enough to avoid Armstrong’s attention. She objected only once during Feiger’s closing
arguments to his punitive damages argument, and not once to the other comments or questions
Chrysler now claims were misconduct. Nor did Armstrong comment on Feiger’s dramatics at
any time during her own argument, which spanned more than one hundred pages of transcript
and what appears to be about two hours.
It is safe to say that the circumstances of this case make it unusual and, perhaps, more
severe than most other harassment claims. This is so because, despite the extremely long hours
Gilbert worked, during which she was exposed to continuing harassment, Gilbert did not quit. If
the jurors believed the testimony Gilbert, Lemmerz, Gupton, Whitenight, Hnat, and Katz
provided, they could easily agree that Gilbert’s experience at Chrysler was terrible, and certainly
56
See Hutton v Roberts, 182 Mich App 153, 162, 451 NW2d 536 (1989).
57
See Esparaza, supra at 377-379 (plaintiff’s attorney’s argument asking for punitive damages
was harmless because the trial court instructed the jury on the proper measure of damages and
the verdict slip did not provide the jury an opportunity to award punitive damages).
-26-
enough to cause her to start drinking again and attempt suicide. With her history of relapses and
attempted suicides, added to Katz and Hnat’s testimony, it is no stretch of the imagination that
Gilbert might die prematurely, whether from the physical effects of alcoholism, another suicide
attempt from her major depressive disorder, or in an alcohol-related car crash. Further, in a
move that might be described as provident, the trial court decided to instruct the jury on the law
before the jury heard closing arguments. In this way, the trial court ensured that the jury knew
the limited value of the lawyers’ arguments before hearing them, minimizing the potential that
any inflammatory statements would actually inflame the jurors. Even the jurors themselves
indicated that they were exercising their independent abilities to reason, rejecting the figure
Feiger requested in damages, awarding a far smaller – though still large – amount.
We conclude that there is insufficient evidence that Feiger’s arguments were misconduct
that “materially affected” affected Chrysler’s substantial rights, especially given the possibility
that Armstrong did not object at trial. Consequently, the trial court did not abuse its discretion in
denying the motion for new trial and remittitur on these grounds.
IV. Hnat
A. Standard of Review
Chrysler argues that several, disparate portions of Hnat’s testimony proved that he and
Feiger colluded to perpetrate a fraud in this case. In light of this fraud, Chrysler argues, the trial
court should have granted its motions for a new trial, an evidentiary hearing, or relief from
judgment. This Court reviews a trial court’s decision to deny a motion for a new trial to
determine whether it abused its discretion,58 applying the same standard of review to decisions
regarding motions for an evidentiary hearing and relief from judgment.59
B. Hnat’s Relationship With Feiger
In his opening statement to the jury, Feiger revealed to the jury that he knew Hnat, Hnat
had worked on Feiger’s 1998 gubernatorial campaign, and that Hnat had worked for his law firm
on other cases in 1998 and 1999, after he treated Gilbert. Feiger claimed that Hnat did not have
any contact with him or his law firm while he was treating Gilbert. Consequently, he indicated
to the jury, the fact that Hnat was testifying in this case was a coincidence. After the summer
1999 trial, Chrysler found newspaper articles regarding Feiger’s gubernatorial campaign and a
television interview from April 1999, which discussed Hnat’s friendship with Feiger. Chrysler
also allegedly found proof that Hnat had worked with Feiger on many cases. According to
Chrysler, Feiger and Hnat had purposefully withheld this information, critical to Hnat’s
credibility, from the jury at trial, which is why it claimed that it was entitled to a new trial or
other relief.
58
See Morinelli, supra at 261.
59
See Persichini v William Beaumont Hosp, 238 Mich App 626, 645; 607 NW2d 100 (1999);
Blue Water Fabricators, Inc v New Apex Co, Inc, 205 Mich App 295, 300; 517 NW2d 319
(1994).
-27-
Feiger and Hnat responded to Chrysler’s motion for a new trial with affidavits in which
each claimed to have become acquainted with each other while attending the University of
Michigan in the 1970s. Both men said that theirs was a casual relationship marked by occasional
contact with each other over the years, with Hnat assisting Feiger only lately. They may have
seen each other at social events, but did not spend time with each other. Hnat had retained
another attorney in Feiger’s firm to help him with a contract dispute and an employment dispute
in 1990. However, Feiger said he had “little to no involvement” in either case. In the early
1990s, when Hnat was seeking a divorce from his wife, an attorney outside the Feiger firm had
referred Hnat to Feiger to handle his divorce, but neither Feiger nor his firm handled the case.
Feiger said that the first time he worked with Hnat was in 1996, when Feiger was defending Dr.
Jack Kevorkian. Feiger said that “[a]fter that, and not beginning until late in the following year,
1997, Stephen Hnat has worked on many of my trial as a consultant.”
The trial court denied Chrysler’s motions concerning the depth of this relationship for
three reasons. First, it concluded that “[h]ow to describe a relationship between two people
inevitably calls for a subjective judgment: [sic] ‘closeness’ is in the eye of the beholder.”
Evidently, the trial court did not agree with Chrysler that the materials it produced varied greatly
from how Feiger had described his relationship with Hnat to the jury. Second, the trial court
reasoned that all the material Chrysler produced in support of its motions had existed before trial,
but had not been discovered because of Chrysler’s lack of diligence. In the trial court’s view,
this lack of diligence was inconsistent with the requirements for a motion for a new trial and
relief from judgment. Finally, the trial court noted that federal precedent held that witness
perjury was not grounds for a new trial because it could have been challenged at trial.
MCR 2.611 allows a new trial for “[m]aterial evidence, newly discovered, which could
not with reasonable diligence have been discovered and produced at trial.” That the material
Chrysler discovered had been released publicly no less than two months before trial suggests that
it could have discovered in time to be presented to the jury. MCR 2.612(C)(1)(b) is a similar
court rule, permitting relief from judgment if a party comes across “[n]ewly discovered evidence
which by due diligence could not have been discovered in time to move for a new trial under
MCR 2.611(B).” This court rule does not apply because Chrysler did file a timely motion for a
new trial. MCR 2.612(C)(1)(c), the court rule allowing relief from judgment, does also permit
relief if there was “[f]raud (intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party.” Despite Chrysler’s attempts to characterize Feiger’s and Hnat’ representation of
their relationship as springing from some improper motivation, there was no evidence that Feiger
referred Hnat to Gilbert or vice versa, much less evidence of fraud. In fact, regardless of the
relationship Feiger had with Hnat, he did treat Gilbert for about two years and, therefore, had
pertinent factual details to relate to the jury.
Feiger revealed his relationship with Hnat in his opening statement. Feiger did not
describe this relationship in detail. Armstrong also asked Hnat about the relationship during her
cross-examination, but did not ask him any specific questions that would have elicited the
information Chrysler subsequently discovered. As the trial court observed, the strength of a
bond between people is a largely subjective question, and there is no evidence that Hnat actually
provided any testimony about the relationship that he knew was false. In her closing arguments,
Armstrong also argued that Gilbert’s case rested on Hnat’s testimony and that he was not
believable because of his connection to Feiger. The jury certainly had enough information about
-28-
this connection to conclude, if it chose to do so, that Hnat might not be objective or credible. If
there was any error in not revealing more of the relationship, the error was harmless and,
therefore, does not merit reversal and a new trial for Chrysler.
C. Hnat’s Credentials
When Feiger first called Hnat to the stand to testify, he had Hnat review his
accomplishments and credentials for the jury. According to Hnat, he received a Pillsbury Award
in 1980 for a thesis on psychology he had written while a graduate student. Feiger also asked
Hnat, “What program specifically were you admitted to at the University of Michigan?” Hnat
replied, “It was combined, doctoral studies in social work and through the Department of social
work and doctoral studies in psychology through the Department of Psycho-Biology.” Feiger
inquired when he completed his studies, and Hnat revealed that he “did not complete the Ph.D.”
Instead, Hnat explained, “I stopped when I got my Masters degree in Psycho-Biology” in 1985.
Feiger followed up this explanation by stating, “Your curriculum also indicates between that
time between 1980 and 1985 when you received your degree in Psychology and Psycho-biology
you were awarded master of social work in interpersonal practice. What was that?” Hnat then
explained the foundation for psychiatric social work. Later, after the trial court accepted Hnat as
an expert in “substance abuse care and treatment,” Feiger asked Hnat to review one of Gilbert’s
hospital records, asking:
In terms of her [Gilbert’s] treatment at Sacred Heart, BiCounty Hospital,
Eastwood Hospital, which is part of St. John’s Hospital, was she treated at those
facilities by people such as yourself, counselors, MSWs [people holding masters
degrees in social work], psychologists and psychiatrists with this type of expertise
that you have described to us this morning?
Hnat replied, “Yes. As a matter of fact, I trained Ms. Walsh” and other individuals who treated
Gilbert at Sacred Heart Hospital.
Though Armstrong did not object to any of this testimony, following trial, Chrysler
moved for a new trial or relief from judgment. Chrysler claimed that Hnat did not earn the
Pillsbury award, he had not received a master’s degree in psycho-biology, and that he had
misrepresented that he had credentials equivalent to a psychiatrist or psychologist. Hnat
conceded that he had not received the Pillsbury award, claiming the statement was inadvertent,
and clarified that he had completed the coursework necessary for a master’s degree, and had not
misrepresented his qualifications.
The trial court rejected Chrysler’s arguments, denying the motion on these grounds. As
the trial court indicated in its written order and opinion, the inaccuracies in Hnat’s testimony
were not “large.” Though Hnat had not earned the master’s degree in psycho-biology, he had
completed the coursework, giving him a legitimate background in the subject. Additionally,
Hnat had never claimed at trial that he was a psychiatrist or psychologist. Overall, the trial court
did not think that the flaws in Hnat’s testimony were substantial, much less that they amounted
to fraud.
-29-
The trial court, which heard Hnat’s testimony and could see its effect on the jury, was in
the best position to determine whether Hnat had simply misspoken.60 Further, Hnat freely
admitted several times in his testimony that he was not a psychologist or psychiatrist, noting
when he lacked information to answer questions regarding medicine or other areas outside his
expertise. Feiger explicitly corrected himself the one or two times he accidentally called Hnat
“Dr. Hnat,” and Armstrong emphasized in her cross-examination of Hnat and closing argument
that he was not a psychiatrist, psychologist, or any sort of doctor. Further, the reference to the
Pillsbury award was fleeting, not a significant factor in Gilbert’s case. Overall, Hnat’s testimony
was consistent with his actual credentials, including his experience treating substance abusers,
which Hnat documented with letters from several individuals and organizations in response to
the motion. The record suggests that there was little possibility that the jury misunderstood the
scope of Hnat’s expertise. The trial court did not err in concluding that these flaws in his
testimony did not taint the trial and resulting verdict to the extent that a new trial was necessary.
More importantly, there is no evidence that Feiger and Hnat colluded to make these
misrepresentations, as Chrysler claimed. Consequently, the trial court did not err in denying the
motions on these grounds.
D. Gilbert’s Medical Records
According to Chrysler, Feiger and Hnat engaged in a scheme to deprive it of access to
parts of Gilbert’s medical records. This allegedly denied Chrysler an opportunity to reveal to the
jury matters relating to Gilbert’s willingness to seek treatment and the harassment she was
experiencing. When the trial court denied Chrysler’s motion for a new trial or relief from
judgment on this ground, it placed the blame for Chrysler’s lack of access to the information to
its own attorneys. In the trial court’s view,
The parties here appear to have disagreed with the wording of the
authorization designed to produce at least some of the records at issue.
Unfortunately, Defendant never brought a motion to compel to resolve this
dispute. Similarly, with respect to the other sets of records, Defendant seems to
have made only half-hearted efforts to obtain them. Indeed, the record shows that
some of the records allegedly hidden by Plaintiff do not exist.
***
Defendant here appears to have piggybacked on Plaintiff’s own efforts to obtain
records. Thus Defendant complains that it relied on a representation that Mr.
Feiger had made at a pre-trial conference concerning the completeness of the
records. . . . Defendant ignores the fact that it had an independent responsibility
to secure for itself the complete records.
On appeal, Chrysler claims that Feiger had issued subpoenas for the medical records,
directing that they be delivered to his office, which was a scheme to deprive Chrysler of the
records. This was the start of what Chrysler calls Feiger’s attempt to “hijack” the records,
60
See, generally, MCR 2.613(C).
-30-
worsened at trial because Hnat kept up a “charade” concerning the date he began treating Gilbert
and her good prognosis for recovery when she began working at the Jefferson North Assembly
Plant. There can be no merit to Chrysler’s arguments with respect to Feiger’s duty to share
records that never existed. Chrysler provides no authority for its proposition that it was
somehow improper for Feiger to request Gilbert’s medical records in order to prepare the case.
Further, at trial, Chrysler fully explored the possibility that Gilbert was not firmly in recovery
and did not have a good prognosis at the time she started her job in March 1992. In short,
regardless of Feiger’s strategy in obtaining the records, Chrysler has not provided evidence of
fraud, much less that the records it did not see had evidence that would have affected the jury’s
verdict. At most, any error in the trial court’s ruling that Chrysler had not articulated sufficient
grounds for a new trial or relief of judgment was harmless.
E. Hnat’s Representations Concerning Gilbert’s Drunk Driving Record
At trial, Feiger and Armstrong both questioned Hnat extensively regarding why Gilbert
started treatment with him. In Hnat’s opinion, Gilbert started treatment voluntarily, because she
had been going through a difficult time, and she wanted to feel better and stop abusing
substances. Armstrong brought out the possibility that a court had ordered Gilbert to seek
treatment, asking Hnat, “At the time that she saw Dr. Yousef,[61] was it your understanding that
she was seeing Dr. Yousef relating in any way to her driving legal problems with regards to her
driving?” Hnat answered, “No, my understanding the precipitant was she was upset about the
breakup of a relationship.”
Following trial, Chrysler contended that Gilbert’s drunk driving record would have
proven that she sought treatment because a court ordered her to do so, not because she was
motivated to recover and sought treatment voluntarily. Chrysler claimed that Hnat had
purposefully concealed this information. The trial court did not comment on this issue
specifically.
Hnat’s response in this passage and at other times during his testimony was not intended
to verify or conclusively rule out the possibility Gilbert had been arrested for drunk driving
before he began treating her or was under a court order to seek therapy. Rather, his testimony
suggested that he personally observed Gilbert’s motivation to recover and that this motivation
could not be attributed merely to a court order compelling her to attend therapy. For instance, he
explained, Gilbert sought treatment for much longer than a court order would require, even after
her insurance stopped paying for the treatment. Further, Hnat’s testimony suggested that
whether Gilbert was under court order to seek therapy was irrelevant to how he treated her in
therapy, giving him no reason to focus on this information. Even if this record had been
available, Armstrong would have been unable to impeach Hnat on this issue any further. While
the record may have clarified any court order in place when Gilbert sought treatment from Hnat,
it would reveal nothing about Hnat’s knowledge or memory of the order, or his alleged intent to
conceal this information from the jury. As with the other issues raised, there simply is no
61
Dr. Yousef was the psychiatrist in Hnat’s clinic who evaluated Gilbert before referring her to
Hnat.
-31-
evidence that Hnat intentionally misrepresented anything related to Gilbert’s drunk driving
record, making the trial court’s ultimate ruling to deny the related motions proper.
V. Evidentiary Issues
A. Standard Of Review
In its postjudgment motions for a new trial or remittitur, Chrysler challenged a number of
the trial court’s evidentiary rulings. On appeal, Chrysler maintains that the trial court’s original
evidentiary rulings, as well as its subsequent decision to deny the motions for a new trial or
remittitur on this basis were erroneous. This Court reviews a trial court’s decision to deny a
motion for a new trial to determine whether it abused its discretion,62 applying the same standard
of review to decisions regarding motions for remittitur,63 the admissibility of evidence,64 and
whether to qualify a witness as an expert.65
B. Deposition Testimony
At trial, Armstrong objected to Feiger’s attempt to introduce transcripts of the depositions
Chrysler took from Gilbert and Lemmerz. Feiger argued that the transcripts were admissible, not
to prove that Gilbert’s allegations were true, but to show that Chrysler had notice of her
complaints no later than November 1994. The trial court agreed, allowing the jury to consider
the depositions relative to the Chrysler’s notice defense. On appeal, Chrysler neither explains
the legal reasoning behind its continuing objection to the admissibility of this evidence, nor
provides any authority to support this point. Even though Chrysler refers to an earlier section of
its appellate brief in which it claimed that deposition testimony was inadequate to prove notice, it
provided no support for that proposition. Hence, it has abandoned this issue.66 Further, Chrysler
failed to present this issue for appeal by listing it in the questions presented.67 Regardless, notice
to an attorney is notice to the client,68 making the depositions admissible as relevant,69 and used
for a purpose outside the scope of the definition of hearsay.70
C. Hnat’s Qualifications As An Expert
When Feiger asked the trial court to certify Hnat as an expert so he could render opinions
about Gilbert, Armstrong objected, essentially contending that a social worker could not testify
62
See Morinelli, supra at 261.
63
See Leavitt, supra at 305.
64
See Chmielewski v Xermac, Inc, 457 Mich 593, 613-614; 580 NW2d 817 (1998).
65
See Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 454; 633 NW2d 418 (2001).
66
Palazzola v Karmazin Products Corp, 223 Mich App 141, 156, n 7; 565 NW2d 868 (1997).
67
See MCR 7.212(C)(5).
68
See Kastle, supra at 32.
69
See MRE 402.
70
See MRE 801(c).
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as an expert on substance abuse. Feiger, who had Hnat lay a foundation concerning his
experience and credentials, argued that Hnat had always been listed in the pleadings as an expert
in his field. The trial court agreed with Feiger, allowing him to testify as an expert in “substance
abuse care and treatment.”
Following trial, Chrysler contended that it was entitled to a new trial or remittitur because
Hnat should not have been allowed to testify as an expert on matters such as the physical effects
of alcohol abuse, including the effect of alcohol on brain chemistry and whether Gilbert was
“dying” from alcoholism. The trial court rejected this argument, reasoning that Hnat had
sufficient experience and training in the area to testify as an expert, the fact that he was a social
worker was not dispositive of his expertise, and the effects of alcohol were sufficiently well
known to be considered scientific.71
MRE 702 primarily governs how Michigan courts treat scientific evidence and witnesses
who testify as experts, providing:
If the court determines that recognized scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or
otherwise.
“MRE 702 requires a trial court to determine the evidentiary reliability of trustworthiness of the
facts and data underlying an expert’s testimony before that testimony may be admitted.”72
The trial court reached the correct conclusion in allowing Hnat to testify as an expert.
Hnat has a master’s degree in social work and has a limited license from the state to provide
psychological therapy. His practice for many years has specifically focused on substance
abusers, giving him opportunities to develop a substantial knowledge about their treatment. Hnat
was also able to cite published studies to support his opinions a number of times during his
testimony, demonstrating that he had a foundation for his opinions. Chrysler’s argument at trial,
and again on appeal, amounts to an assertion that only psychiatrists, other medical doctors, and
psychologists can render expert opinions. However, to borrow the wording from this Court’s
opinion in Grow v WA Thomas Co,73 the “mere fact” that Hnat “is not a medical practitioner does
71
The trial court erroneously cited Daubert v Merrell Dow Pharmaceuticals, 509 US 579; 113 S
Ct 2786; 125 L Ed 2d 469 (1993) when concluding that the evidence of the effects of alcohol
were well-known. This state follows the standards set out in People v Davis, 343 Mich 348, 372;
72 NW2d 269 (1955) and Frye v United States, 54 US App DC 46, 47; 293 F 1013 (1923). See
Nelson v American Sterilizer Co (On Remand), 223 Mich App 485; 566 NW2d 672 (1997);
People v McMillan, 213 Mich App 134, 136; 539 NW2d 553 (1995). Chrysler does not
challenge the trial court’s ruling on this ground, and even cites Daubert.
72
Nelson, supra at 491.
73
Grow v WA Thomas Co, 236 Mich App 696, 713-714; 601 NW2d 426 (1999).
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not render him unqualified as an expert witness. . . . Any limitations in” Hnat’s “qualifications
are relevant to the weight, not the admissibility, of his testimony.”74
At times, Hnat’s testimony appeared to have a medical dimension. However, his
testimony suggested that his practice as a social worker had allowed him to observe and learn
about these specific effects of substance abuse.75 At no time did Hnat try to suggest to the jury
that he was a medical doctor. He openly admitted sending Gilbert to other practitioners. When
Armstrong asked Hnat if he was “able to physically examine Ms. Gilbert to determine if she is
dying,” he admitted that he could not. In a separate exchange, when Armstrong asked Hnat
whether he thought that one of Gilbert’s asthma medications was causing her to gain weight, he
candidly responded, “It could, [but] I can’t speculate. I don’t know the exact pharmacology. It’s
not a centrally acting medication, so I am not as familiar with those.” Armstrong also
emphasized in her closing argument that Hnat was not a medical doctor. The jury certainly
could not be confused about the limits of Hnat’s expertise.
As for Chrysler’s contention that Hnat’s testimony that the effects of alcoholism can lead
to death was not scientific, it points to no evidence contradicting the trial court’s conclusion that
this has become common knowledge. This would make Hnat’ testimony admissible.76 In fact,
this Court has held that evidence of physical disease or effect of alcoholism is admissible without
questioning its scientific validity.77 Accordingly, Chrysler has failed to demonstrate that the trial
court erred in allowing Hnat to testify as an expert and to provide his opinion in areas that related
to substance abuse, but also had a more traditional medical component that overlapped with his
expertise.
Chrysler also argues that the trial court should have barred Katz’s testimony for the same
reasons that it should have barred Hnat’s testimony as an expert. It has failed to develop its
argument to differentiate between Hnat as an expert and Katz as a fact witness. Accordingly,
having failed to present an argument or cite any authority that the trial court erred in allowing
Katz to testify to the facts surrounding her treatment of Gilbert, Chrysler has abandoned this
portion of its argument.78 Furthermore, to the extent that Katz may have rendered opinions as if
she were an expert, Armstrong did not object to any part of her testimony on that basis and
actually asked Katz questions that required Katz to render an opinion. “A party is not allowed to
assign as error on appeal something which his or her own counsel deemed proper at trial since to
do so would permit the party to harbor error as an appellate parachute.”79
74
See also Thames v Thames, 191 Mich App 299, 303; 477 NW2d 496 (1991).
75
See Phillips v Deihm, 213 Mich App 389, 401; 541 NW2d 566 (1995), citing MRE 702.
76
See MRE 702.
77
See, e.g., Chmielewski, supra at 613-614.
78
See Palazzola, supra at 156, n 7.
79
Dresselhouse v Chrysler Corp, 177 Mich App 470, 477; 442 NW2d 705 (1989).
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D. Excluding A Defense Expert
In the middle of the month-long trial in this case, Armstrong asked the trial court to allow
her to call a physician as a medical expert to rebut Hnat’s expert testimony, which she did not
anticipate. Feiger responded that Hnat was endorsed on the plaintiff’s witness list well before
trial, allowing Chrysler to prepare its case, but that he would have no opportunity to prepare to
examine an expert identified at such a late date. The trial court denied Armstrong’s request, first
noting that she had yet to put on Chrysler’s case-in-chief, which would make the witness a
traditional defense witness, not a rebuttal witness. Additionally, the trial court agreed that
allowing a new expert to testify at that late date would prejudice Gilbert.
When Chrysler raised this issue again in its post-verdict motions, the trial court
reaffirmed its initial decision, explaining that cross-examination was the best way to challenge
Hnat’s testimony. The trial court, in a footnote, stated:
Defendant argues that it was late in notifying the Court it would present
these witnesses because it had no reason to anticipate that Mr. Hnat’s testimony
would range over issues of Plaintiff’s health and prognosis. But it seems unlikely
that a reasonable defendant here would not have anticipated that Plaintiff would
try to argue that the current state of her alcoholism was linked to the harassment
she had endured; moreover, Defendant knew Plaintiff had a severe alcohol
problem, and it is no mystery that heavy drinking can cause death. . . .
The trial court did not comment on its conclusion at trial that allowing this late endorsement
would cause prejudice to Feiger’s ability to present Gilbert’s case.
MCR 2.401(I) governs witness lists, providing that a trial court “may order that any
witness not listed in accordance with this rule will be prohibited from testifying at trial except
upon good cause shown.” Case law recommends that trial courts allow unendorsed witnesses to
testify at trial as long as the adverse party’s rights are protected.80 Nevertheless, the record
suggests that the trial court was concerned about the prejudice allowing Chrysler’s proposed
witness to testify would cause to Gilbert, including delay in the proceedings. The trial court had
mentioned its concern about unendorsed witnesses at the outset of trial, asking that “if, in fact,
there is going to be a request to call a witness that is not listed on the pretrial order, I want to
know about it a couple of days in advance.” Further, the trial court seemed disinclined to
consider Chrysler’s lack of preparation for trial as good cause to grant the motion. Indeed, as
Gilbert notes in her brief on appeal, that Hnat would render expert testimony was no surprise to
Chrysler; Hnat had been listed as an expert as early as November 16, 1995, more than 3 ½ years
before trial. Chrysler was also aware that Gilbert was claiming damages related to “mental
anguish,” as she had pleaded in her complaint. Why Chrysler failed to secure an expert before
trial is not clear. The trial court did allow Katz to testify as a fact witness even though she had
80
See Pastrick v General Telephone Co of Michigan, 162 Mich App 243, 245; 412 NW2d 279
(1987) ("[t]rial courts should not be reluctant to allow unlisted witnesses to testify where justice
so requires, particularly with regard to rebuttal witnesses").
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not been listed as a witness before trial.81 Whether Chrysler only discovered the need to find an
expert during trial, justifying a late endorsement, is a close question. As a matter entrusted to the
trial court’s discretion, it is impossible to say that the trial court’s ruling was baseless and,
therefore, error requiring reversal.
E. Gilbert’s Drunk Driving Records
Chrysler contends that the trial court erred in excluding Gilbert’s drunk driving record
from evidence, “which allowed plaintiff to misrepresent the extent of her recovery from
alcoholism before the alleged harassment – a key fact in her theory of damages[.]” The trial
court explained its ruling at the time as a reaction to Chrysler’s failure to list the document as a
proposed exhibit before trial. When Chrysler raised this issue again after the jury rendered its
verdict, the trial court emphasized that Chrysler had freely explored Gilbert’s driving record at
trial even without admitting the exhibit, and its own “laxity” had been responsible for its failure
to list the exhibit. Additionally, any error was harmless because the reason a patient enters
treatment
is not a dispositive indicator of success, and the more important point remains:
that after entering treatment in 1992 – whether voluntarily or not – Plaintiff was
able to achieve a certain level of sobriety, and that her alcohol worsened after she
had been subjected to the harassment. It is the fact that the harassment led
Plaintiff to drink that is important in linking it to Plaintiff’s current medical state.
Clearly, Chrysler made the correct strategic choice to argue to the jury that it could not be
certain that Gilbert was on the road to recovery when she started her job in light of the possibility
that she had been forced to attend treatment. This court-ordered treatment also called into
question Hnat’s testimony that Gilbert had a particularly strong will to succeed at recovery.
Nevertheless, the trial court articulated a compelling reason for denying the motion for new trial
or remittitur in light of its evidentiary ruling: the record leaves no doubt that Chrysler made this
argument directly to the jury, informing the jury of the existence of the order and what it
perceived to be the flaw in Hnat’s estimation of Gilbert’s prospect for success when he started
treating her in 1992. Having the documentary evidence of the order would not have proved the
point to any greater degree of certainty. Moreover, given that Gilbert admitted to her drunk
driving arrests, it is unlikely that this drunk driving record would have shed any additional light
on Gilbert’s alleged misrepresentation of her degree of recovery. If there was any error in the
initial evidentiary ruling, it was harmless, making the trial court’s ruling on the postjudgment
motion properly within its discretion.
81
The record suggests that the trial court may have allowed Katz to testify, albeit only as a fact
witness, because at least some of the preliminary witness lists revealed that Gilbert intended to
call anyone who had treated her, including social workers, and Katz fit in this category.
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VI. Jury Award
A. Standard Of Review
Chrysler contends that the trial court erred in denying its motion for a new trial or
remittitur because the jury’s award was excessive and out of line with other cases. This Court
reviews a trial court’s decision to deny a motion for a new trial82 or remittitur83 to determine
whether it abused its discretion.
B. $21,000,000
When Chrysler raised this issue in its postjudgment motions, the trial court rejected
Chrysler’s argument that the jury verdict was excessive in comparison to other jury verdicts in
sexual harassment cases, instead focusing on a number of issues related to damages that Chrysler
does not raise in this appeal. Strictly speaking, the test for remittitur examines whether the
evidence submitted to the jury that decided the case will support the award.84 While some
opinions make fleeting reference to comparable jury awards, the core analysis remains focused
on the evidence in the case at bar.85 Jury awards in different cases involving wholly unrelated
facts are not particularly germane to whether the trial court erred in denying remittitur, especially
when the awards cited were given many years ago.
It certainly is possible that a different jury would have reacted differently to the evidence
in this case and might have given Gilbert a smaller award. However, the jury in this case could
have found compelling Gilbert’s evidence that she would die an untimely death because of the
effects of the harassment that Chrysler knew existed and did nothing to stop. Alternatively, the
jury could have found persuasive Gilbert’s evidence that her life was and would be completely
joyless because the harassment had caused her to develop major depressive and post-traumatic
stress disorders, changing the fundamental chemistry in her brain. Hnat also provided testimony
explaining the high costs of treatment Gilbert is likely to incur in the future. All these factors, as
well as the length of the harassment, might have contributed to the high award. The precise
amount of appropriate damages is often an elusive figure that cannot be calculated with simple
mathematical equations, which is why the law requires only a reasonable approximation by the
jury.86 That the jury exercised its independence by awarding Gilbert only about fifteen percent
of the $140,000,000 Feiger said was appropriate suggests that it decided the amount of the award
on how it perceived the evidence the parties presented, not because of passion, bias, or
misunderstanding. Like the jury, the trial court heard all the evidence and decided that it
82
See Morinelli, supra at 261.
83
See Leavitt, supra at 305.
84
See Anton, supra at 683, citing MCR 2.611(E)(1).
85
See Knight v Gulf & Western Properties, Inc, 196 Mich App 119, 131-132; 492 NW2d 761
(1992).
86
See Hoffman v Auto Club Ins Ass’n, 211 Mich App 55; 535 NW2d 529 (1995); Body
Rustproofing, Inc v Michigan Bell Telephone Co, 149 Mich App 385, 390; 385 NW2d 797
(1986).
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supported the jury’s award. Giving the trial court the deference it is surely due,87 it is impossible
to say that the trial court abused its discretion in reaching this conclusion.
Affirmed.
/s/ William C. Whitbeck
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
87
See MCR 2.613(C).
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