ELLIS L ROSS V GENERAL MOTORS CORP
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STATE OF MICHIGAN
COURT OF APPEALS
ELLIS L. ROSS and ROGER HOLLAND,
UNPUBLISHED
December 29, 2005
Plaintiffs-Appellees,
v
No. 250636
Oakland Circuit Court
LC No. 02-039304-NZ
GENERAL MOTORS CORPORATION,
Defendant-Appellant.
Before: Gage, P.J., and Meter and Fort Hood, JJ.
PER CURIAM.
Defendant General Motors appeals from the jury verdicts awarding plaintiff Ellis L. Ross
$112,558 for lost wages and benefits and $2,600,000 for emotional distress and awarding
plaintiff Roger Holland $398,234 for lost wages and benefits and $3,100,000 for emotional
distress. Plaintiffs alleged that they failed to obtain promotions based on their age, and the jury
found defendant liable for age discrimination based on the Civil Rights Act, MCL 37.2101. We
reverse and remand.
Defendant first argues that the trial court abused its discretion in denying defendant’s
motion to sever the claims of Ross from the claims of Holland. We agree. We review a trial
court’s decision to deny severance for an abuse of discretion. Commonwealth Capital v
McElmurry, 102 Mich App 536, 542; 302 NW2d 222 (1980).
MCR 2.505(B) provides that consolidated actions may be severed (1) for convenience,
(2) to avoid prejudice, or (3) when separate trials will be conducive to expedition and economy.
The power to sever, however, “should be exercised only upon the most persuasive showing that
the convenience of all parties and of the court requires such drastic action or that prejudice to a
party cannot otherwise be avoided than by such order of separation.” Danyo v Great Lakes Steel
Corp, 93 Mich App 91; 286 NW2d 50 (1979), citing Osgerby v Tuscola Circuit Judge, 373 Mich
237, 241; 128 NW2d 351 (1964).
Though only the most extraordinary circumstances justify severing consolidated claims,
this Court affirmed a trial court’s finding that severance was appropriate in a case with similar
facts. Legendre v Monroe County, 234 Mich App 708; 600 NW2d 78 (1999). In Legendre, this
Court concluded that the trial court did not abuse its discretion when it ordered the plaintiff’s
claim to be severed from that of her coworker. The elected Prosecuting Attorney of Monroe
County, chose not to reappoint Legendre, the plaintiff, and her coworker Nancy Fleick to their
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positions as assistant prosecutors. Legendre and Fleick attributed the prosecutor’s decision to
sex discrimination. Fleick additionally alleged age discrimination. The trial court severed the
women’s claims, and the decision was appealed. Id. at 711-713.
This Court affirmed the trial court’s decision to sever because different proofs would be
required to establish each woman’s case. The claims by Legendre arose from a different set of
occurrences than Feick’s. Legendre and Feick had different backgrounds, experience levels, and
longevity with the prosecutor’s office. Moreover, Feick alleged age discrimination, while
Legendre did not. The court concluded that the differences outweighed the similarities. Though
the plaintiffs worked in the same department and claimed discrimination by the same person on
the same date, the Court found that their different positions, lengths of service, and experience
levels raised the potential for jury confusion and prejudice against the defendants. Id. at 719721.
The differences between Ross’s and Holland’s cases are at least as striking as those
between Legendre and Fleick. While Ross and Holland both worked in the paint department of
the Orion plant, they had different qualifications, different levels of seniority, held different
positions in the department, and sought different positions. They had different responsibilities
and worked under different managers.
Ross retired from General Motors claiming
discrimination had made it impossible to continue working, whereas Holland continued to work
for General Motors and stated that he was happy in his position as launch manager. The only
common question of fact was plaintiffs’ allegation that one of defendant’s managers, because of
animus for older workers, played a role in their being denied positions for which they were
qualified.
In Legendre, this Court concluded that the differences between Legendre’s and Fleick’s
claims were so great as to harbor the potential for jury confusion and prejudice against the
defendants and warrant severance. Defendant in the present case argues that the consolidated
trial resulted in jury confusion and prejudice because the jury heard testimony from each plaintiff
that would not have been admissible in a trial concerning the other plaintiff. Large portions of
Ross’ testimony had nothing to do with proving Holland’s claims, and vice versa; thus, this
testimony was irrelevant and prejudicial to defendant. In its second issue on appeal defendant
also argues that it was prejudiced by some of the testimony of plaintiff’s coworkers. For the
reasons discussed below, defendant is correct that it was prejudiced by the consolidated trials and
by some of the testimony of plaintiff’s coworkers. While severance is an extraordinary provision
to be granted only upon the most persuasive showing that prejudice to a party cannot otherwise
be avoided, defendant has made that showing. The trial court abused its discretion in denying
defendant’s motion to sever plaintiffs’ claims and therefore, a new trial is warranted. Legendre,
supra.
Defendant next argues that the trial court improperly admitted the testimony of non-party
General Motors employees. We agree. We review a trial court’s decision to admit evidence for
an abuse of discretion. Chmielewski v Zermac, 457 Mich 593, 614; 580 NW2d 817 (1998).
The trial court properly admitted the testimony of these witnesses addressing their
opinions regarding discrimination suffered by plaintiffs. A lay witness may express an opinion
regarding discrimination in an employment setting if the opinion is (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the
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determination of a fact in issue. Wilson v General Motors Corp, 183 Mich App 21, 35; 454
NW2d 405 (1990). The trial court also properly permitted these witnesses to testify regarding
their observations of discrimination suffered by plaintiffs. Such testimony is relevant, and thus,
admissible. However, opinion testimony about whether the witnesses feel they have been
discriminated against is irrelevant, and thus, inadmissible. This case did not present a hostile
work environment claim where such testimony might, in some circumstances, be relevant to
establish the nature of the work environment. For the same reason, coworker testimony about
discrimination they believed they had suffered is likewise not relevant, and thus, not admissible.
MRE 401; MRE 402; MRE 403. Moreover, such testimony is so prejudicial that it should not be
admitted. Defendant cites a number of cases from the federal courts supporting this proposition.
While nonbinding, these cases are instructive.
In Bailey v The Northern Trust Co, 196 FRD 513, 514 (ND Ill, 2000), five plaintiffs
sought relief for race discrimination under the federal Civil Rights Act of 1991. Defendant
moved to sever their claims. Id. at 515. The court granted this motion on the ground that “it
would be highly prejudicial to defendant for all the plaintiff’s cases to be presented to one jury.”
Id. at 517. The court explained:
In this case, there are five different factual situations regarding work
performance and employment decisions. A single trial would require the jury to
keep separate each plaintiff’s individualized claim and work history, presenting
the jury with the “hopeless task of trying to discern who did and said what to
whom and for what reason.” Moorhouse v Boeing Co, 501 F Supp 390, 392 (E.D.
Pa 1980). The jury may simply resolve the confusion by considering all the
evidence to pertain to all the plaintiffs’ claims, even when it is relevant to only
one plaintiff’s case. There is tremendous danger that one or two plaintiff’s unique
circumstances could bias the jury against defendant generally, thus prejudicing
defendant with respect to the other plaintiffs’ claims. The need to focus the jury’s
attention on the merits of each individual plaintiff’s case counsels against
proceeding with these cases in one consolidated trial. Thus, the court concludes
that it would be extremely prejudicial to the defendant if the claims of the
plaintiffs’ are tried jointly. [Id. at 518.]
Similarly, the consolidated trial of plaintiffs’ claims and the testimony of coworker
witnesses as to discrimination allegedly suffered by them left the Ross jury with the “hopeless
task” of discerning who suffered what injury. Plaintiffs and their witnesses painted a picture of
department-wide discrimination with which the jury might have inappropriately found defendant
liable for discrimination toward plaintiffs. Plaintiffs did not allege a pattern or practice of
discrimination; rather, they alleged that they had been individually discriminated against. Thus,
any testimony not relating to discrimination suffered by each plaintiff individually is irrelevant
and prejudiced defendant. The trial court abused its discretion in permitting the consolidated
trial and coworker testimony on matters not relating to discrimination suffered by plaintiffs
individually. (See also, Moorhouse v Boeing Co, 501 F Supp 390 (ED Pa, 1980); Haskell v
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Kaman Corp, 734 F2d 113 (CA 2, 1984); Chappell v GTE Prods Corp, 803 F2d 261 (CA 6,
1986).1
Defendant’s third argument is that the trial court erred in granting plaintiffs leave to
amend their complaint to add a new claim after the discovery period had closed. We agree. We
will address this issue because it might arise on retrial. We review a trial court decision to grant
a motion to amend for an abuse of discretion. Weymers v Khera, 454 Mich 639, 645; 563 NW2d
647 (1997).
MCR 2.118(A)(2) requires that leave to amend a pleading is freely given whenever
justice so requires. However, a motion to amend may be denied if the amended pleading will
unduly prejudice the opposing party. Id. at 658, citing Ben P Fyke & Sons v Gunter Co, 390
Mich 649, 656; 213 NW2d 134 (1973). Prejudice exists (1) “when the moving party seeks to
add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery
is closed, just before trial, and [(2)] the opposing party shows that he did not have reasonable
notice, from any source, that the moving party would rely on the new claim or theory at trial.”
Weymers, supra at 659-660.
Plaintiffs sought to amend their complaint to add two counts of retaliation less than three
weeks before trial, after the period for discovery had closed. Plaintiffs argued that retaliation
was not a new claim or theory because it was a prohibited act under the Civil Rights Act, MCL
37.2101. However, claims for age discrimination and retaliation under the act require different
proofs. Thus, they are different claims. Age discrimination may be proven by direct evidence or
by establishing a prima facie case of disparate treatment. To establish a prima facie case of
disparate treatment, a plaintiff must prove that (1) he belongs to a protected class, (2) he suffered
an adverse employment action, (3) he was qualified for the position, and (4) the job was given to
another person under circumstances giving rise to an inference of unlawful discrimination. Lytle
v Malady, 458 Mich 153, 172-173; 579 NW2d 906 (1998). To establish a prima facie case of
retaliation, a plaintiff must show that (1) he engaged in protected activity, (2) he was subjected to
an adverse employment action, and (3) there is a causal link between the protected activity and
the adverse employment action. Jacklynn v Schering-Plough Healthcare Products, 176 F3d 921,
929 (CA 6, 1999).
1
We also note that plaintiff’s counsel attempted to admit evidence of race discrimination by
reviewing affidavits signed by certain witnesses. However, it was revealed that the witnesses did
not attribute any “Sanford” comment to racial discrimination; but rather, it referenced the
condition of Ross’ desk. Moreover, the witnesses did not prepare the affidavits. Personnel from
the office of plaintiff’s legal counsel prepared the affidavits. This elicitation of “evidence”
caused defendant to move for a mistrial because the complaint did not allege any claim of racial
discrimination. Further, the trial court also indicated its shock at the evidence and noted that the
file was perused after the admission to determine if racial discrimination was at issue. The trial
court denied the motion for a mistrial, but provided a cautionary instruction. We presume on
retrial, that plaintiff’s counsel will not attempt any such introduction of improper, unsupported
evidence.
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Plaintiff also argues that defendant had notice of the new claims because plaintiffs,
during their depositions, testified to retaliatory acts directed towards them by defendant. The
Weymers Court rejected this same argument. Consequently, the trial court abused its discretion
in granting leave to amend.
Defendant’s fourth argument is that the trial court read a prejudicial jury instruction. We
agree. Again, we will address this issue because it might arise on retrial. We review a trial
court’s decision to give an instruction de novo. Case v Consumers Power Co, 463 Mich 1, 6;
615 NW2d 17 (2000).
At trial, the court read the following:
The defendant, General Motors, in this case has not offered the plaintiffs’
performance review for the year 2000. As this evidence was under the control of
the defendant, General Motors, and could have been produced by them, you may
infer that the evidence would have been adverse to the defendant, General Motors,
if you believe that no reasonable excuse for defendant’s failure to produce the
evidence has been shown.
It is error to instruct a jury on a matter not sustained by the evidence or the pleadings.
Murdock v Higgins, 454 Mich 46, 60; 559 NW2d 639 (1997). This jury instruction told the jury
that plaintiffs’ performance reviews for the year 2000 were “under the control” of and not
produced by defendant; however, plaintiffs presented no evidence contradicting that of
defendant’s manager that he failed to give Ross2 a performance review in 2000 because he was
in the process of transferring to a different plant. Additionally, Holland’s performance review
for the year 2000 was introduced as part of an exhibit at trial, and so, was not missing. Thus, this
jury instruction was neither applicable, nor sustained by the evidence or the pleadings. This
accumulation of error constitutes an additional basis for reversal of the jury verdicts. See Haynes
v Seiler, 16 Mich App 98, 103; 167 NW2d 819 (1969).
Defendant also alleges that the trial court erred in denying defendant’s motion for a new
trial or remittitur. We agree. A new trial or amendment to the judgment may be granted where
excessive or inadequate damages appear to have been influenced by passion or prejudice. MCR
2.611(A)(1)(c). Moreover, if the trial court finds that the only error in the trial was the
inadequacy or excessiveness of the verdict, a motion for new trial may be denied, conditioned
upon the nonmoving party’s consent to the additur or remittitur. MCR 2.611(E)(1). Whether the
evidence supports the jury award is based on objective considerations relating to the actual
conduct of the trial or to the evidence adduced. Palenkas v Beaumont Hospital, 432 Mich 527,
532; 443 NW2d 354 (1989). We consider the evidence in the light most favorable to the
nonmoving party when reviewing the trial court’s exercise of discretion regarding remittitur.
Wiley v Henry Ford Cottage Hospital, 257 Mich App 488, 499; 668 NW2d 402 (2003). The
Supreme Court in Gilbert v DaimlerChrysler Corp, 470 Mich 749, 763,-764; 685 NW2d 391
2
Indeed, even Ross attributed the absence of a review to having three supervisors during that
one-year period.
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(2004), provided additional guidance regarding review of a jury award when the verdict is
confounded by improper factors:
In the context of compensatory damages, the determination whether damages
exceed the “necessary or proper limit” is no simple task. “[T]he authority to
measure damages,” as we stated in Kelly v Builder’s Square [465 Mich 29, 34;
632 NW2d 912 (2001)], “inheres in the jury’s role as trier of fact.” Because the
amount required to compensate a party for pain and suffering is imprecise, that
calculation typically belongs to the jury.
The difficulty of reviewing damage awards, however, does not undermine
the judicial obligation to do so under MCR 2.611. A reviewing court is therefore
faced with the task of ensuring that a verdict is not “excessive” without
concomitantly usurping the jury’s authority to determine the amount necessary to
compensate an injured party. Given the impossibility of using a simple algorithm
for this task, judicial review of compensatory awards must rely on the
fundamental principle behind compensatory damages-that of recompensing the
injured party for losses proven in the record.
***
When a verdict is procured through improper methods of advocacy, misleading
argument, or other facts that confound the jury’s quantification of a party’s
injuries, that amount is inherently unreliable and unlikely to be a fair estimate of
the injured party’s losses. Likewise, when a verdict is unsupported by the record
or entirely inconsistent with verdicts rendered in similar cases, a reviewing court
may fairly conclude that the verdict exceeds the amount required to compensate
the injured party. [Footnotes omitted.]
Although this appeal may be resolved in light of our disposition of the other issues on
appeal, we nonetheless address it because the verdicts in the instant cause appeared to have been
influenced by passion or prejudice. The testimony regarding the emotional distress suffered by
plaintiffs was minimal and subjective, without medical corroboration or detail in foundation. For
example, plaintiff Ross testified that he suffered from “lack of sleep” and “fear” from working
conditions, something he had not experienced even as a war veteran.3 He also acknowledged a
medical condition, but there was no evidentiary correlation between the medical condition and
the psychological impact of the conditions at work. While plaintiff Ross testified that he voiced
his complaints regarding age discrimination to his immediate superiors, he admitted that he did
not take the issue to human resources or other individuals in a position to remedy the situation.
Plaintiff Ross attributed this limited action to “fear” of “vindictiveness.” Moreover, there was no
indication that plaintiff Ross sought counseling or other treatment for the sleep loss and fear.
3
Plaintiff Ross testified that he had seen “bodies” during his military service and was not
impacted by those events. However, his treatment at work caused him sleep loss and to mistreat
his family, although the specifics regarding mistreatment were conclusory and not delineated in
detail.
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Similarly, plaintiff Holland testified that he suffered from loss of sleep as a result of the working
conditions, but he also did not seek medical treatment. The evidence adduced at trial, even
viewed in the light most favorable to the nonmoving party, Wiley, supra, did not support the
extremely large emotional distress verdicts rendered by the jury. The awards were not supported
by objective considerations or the evidence adduced at trial, even considering the sleep loss
testimony, and thus may have been the product of the improper injection of race into the trial and
the subjective testimony of other witnesses regarding their own beliefs about personal
discrimination. Palenkas, supra. In light of the analysis set forth in Gilbert, supra, it was also
error for the trial court to deny the motion for remittitur.
Reversed and remanded for separate trials. We do not retain jurisdiction.
/s/ Hilda R. Gage
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
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