Faulk v. Duplantis et al, No. 2:2012cv01714 - Document 118 (E.D. La. 2014)

Court Description: ORDER granting 107 Motion for New Trial; denying 110 Motion for Attorney Fees. Signed by Judge Jay C. Zainey on 12/9/14. (Reference: 12-1714)(jrc)
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Faulk v. Duplantis et al Doc. 118 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KYLE FAULK CIVIL ACTION VERSUS NO: 12-1714 TODD M. DUPLANTIS` SECTION: "A" (3) ORD ER AN D REASON S The following m otions are before the Court: Mo tio n fo r N e w Trial, o r in th e Alte rn ative , Re m ittitu r ( Re c. D o cs . 10 7) filed by Defendant, Todd Duplantis; Mo tio n fo r Atto rn e y's Fe e s ( Re c. D o c. 110 ) filed by Plaintiff, Kyle Faulk. The m otions are opposed. The m otions, scheduled for subm ission on Septem ber 10 & 24, 20 14, are before the Court on the briefs without oral argum ent. On J uly 16, 20 14, the jury returned a verdict in favor of Faulk on his First Am endm ent retaliation claim against Todd M. Duplantis. (Verdict Form , Rec. Doc. 10 0 -1). The jury concluded that Duplantis transferred Faulk to uniform ed car patrol in retaliation for engaging in protected speech, and that the transfer constituted an adverse em ploym ent action. The jury then awarded Faulk $ 75,0 0 0 in com pensatory dam ages and $ 275,0 0 0 in punitive dam ages. (Id. at 2, 3). Duplantis is liable for these am ounts in his personal capacity. Duplantis now m oves for a new trial on the com pensatory and punitive dam age awards.1 1 Although the m otion prim arily challenges the propriety of the dam age awards, Duplantis at tim es also alludes to error with the jury's other factual findings, such as whether the transfer was an adverse em ploym ent action and whether the transfer was actually retaliatory in nature. To the extent that Duplantis challenges these liability determ inations, the Court is not persuaded 1 Dockets.Justia.com Following a jury trial, Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure allows the court discretion to grant a new trial when the jury's dam age award was so excessive and against the great weight of the evidence as to indicate bias or prejudice by the jury. Brunnem ann v. Terra Int'l, Inc., 975 F.2d 175, 177-78 (5th Cir. 1992); Harang v. Schw artz, —F.3d—, No. 13-0 0 58, 20 14 WL 40 84939 (E.D. La. Aug. 15, 20 14). The court m ust first determ ine whether a new trial or rem ittitur is the appropriate rem edy. When a jury verdict results from passion or prejudice, the appropriate rem edy is a new trial, not rem ittitur. Id. (citing W ells v. Dallas Indep. Sch. Dist., 793 F.2d 679, 683 (5th Cir. 1986)). Dam age awards that are m erely excessive or so large as to appear contrary to right reason, however, are subject to rem ittitur, not a new trial. Id. This circuit follows the "m axim um recovery rule" for rem ittitur such that the verdict m ust be reduced to the m axim um am ount that the jury could properly have awarded. Id. (quoting Hansen v. Johns-Manville Prods. Corp., 734 F.2d 10 36 (5th Cir. 1984)). But the jury's award of dam ages will not be set aside unless it is "entirely disproportionate to the injury sustained." Rhines v. Salinas Constr. Technol., Ltd., 574 Fed. Appx. 362, 368 (5th Cir. 20 14) (unpublished) (quoting Flanagan v. Aaron E. Henry Cm ty . Health Servs. Ctr., 876 F.2d 1231, 1236 (5th Cir. 1989)). The jury's verdict is afforded great deference such that the court m ust refrain from substituting its opinion in place of the jury's. Brow n v. Miss. Dep't of Health, 256 Fed. Appx. 710 , 711 (5th Cir. 20 0 7) (unpublished) (quoting Bry ant v. Com pass Grp. USA, Inc., 413 F.3d 471, 475 (5th Cir. 20 0 5)). The decision to grant or that the jury's conclusions were contrary to the great weight of the evidence. The evidence presented at trial was sufficient to establish that the transfer was functionally equivalent to a dem otion, and that Duplantis effected the transfer for retaliatory reasons. The jury was free to discount Duplantis's testim ony to the contrary. 2 deny a m otion for new trial is within the sound discretion of the trial court. Harang, 20 14 WL 40 84939, at *13 (citing Pry or v. Trane Co., 138 F.3d 10 24, 10 16 (5th Cir. 1998)). Co m p e n s a t o r y D a m a g e s Duplantis contends that the $ 75,0 0 0 com pensatory dam age award was against the great weight of the evidence. Duplantis urges the Court to either order a new trial or to rem it the award to $ 20 ,0 0 0 . At the outset, the Court notes that the entirety of the $ 75,0 0 0 com pensatory dam age award in this case was for non-pecuniary dam ages.2 An award of non-pecuniary dam ages requires evidence of a specific, discernable injury to the plaintiff's em otional state, with evidence to support the nature and extent of the harm . Brow n, 256 Fed. Appx. at 711 (quoting Brady v. Fort Bend Cnty ., 145 F.3d 691, 718 (5th Cir. 1998)). Evidence to corroborate the plaintiff's testim ony is not an absolute requirem ent so long as the plaintiff's testim ony is "particularized and extensive enough." Hitt v. Connell, 30 1 F.3d 240 , 250 -51 (5th Cir. 20 0 2) (quoting Brady , 145 F.3d at 720 ). "[H]urt feelings, anger and frustration are part of life," and are not types of em otional harm that can support an award of dam ages. Id. (quoting Patterson v. P.H.P. Health. Corp., 90 F.3d 927, 940 (5th Cir. 1996)). Faulk testified that prior to the transfer, he worked days from 8:0 0 a.m . to 4:0 0 p.m ., and had weekends and holidays off. After the transfer, he worked 12 hours shifts, which included work on weekends and holidays. According to Faulk, the transfer to shift work adversely affected his custody schedule with his two daughters. The girls could no longer 2 Faulk did not suffer any financial injury whatsoever as a result of the transfer. Faulk stresses that civil service regulations protected his pay and benefits. But that is of no m om ent because Faulk can only recover the dam ages that he actually sustained, regardless of the reasons that prevented the dam age from being worse. 3 spend nights with him and he could no longer spend tim e with the girls individually, which Faulk found preferable in light of the girls' differing interests. Faulk explained that his new work schedule so disrupted the joint custody arrangem ent that he had with his form er wife that they went to court over the m atter.3 Faulk noted that he had to endure the strained custody situation for about two years. Faulk had been offered a foot patrol position that would have cured the problem with his custody schedule but he turned it down because he thought that the assignm ent was beneath his current position. Faulk testified that it was difficult to engage in other relationships because with his new schedule—he was either always working or with his daughters. Faulk also testified that he sought m edical treatm ent on one occasion because he thought that he was having a heart attack.4 Faulk also resorted to taking sleeping pills because of the erratic schedule accom panying the shift work. The case of Hitt v. Connell, supra, is instructive. Like this case, Hitt was a § 1983 First Am endm ent retaliation case. Hitt had been fired from his position as a deputy constable because of his protected labor union activities. The jury returned a $ 30 0 ,0 0 0 com pensatory dam age award, $ 224,0 0 0 of which constituted non-pecuniary dam ages for m ental anguish, loss of job satisfaction and prestige, and em barrassm ent. Hitt, 30 1 F. 3d at 250 . Hitt offered 3 Faulk did not offer evidence of any attorney's fees or other costs incurred in conjunction with that legal proceeding. 4 Faulk attem pted to testify that the treating physician believed that Faulk's sym ptom s were related to stress from his predicam ent at work but the Court sustained Duplantis's objection to that blatant hearsay. Faulk attem pted to adm it m edical records from the incident that he recounted but the Court granted Duplantis's m otion in lim ine to exclude them . (Rec. Doc. 88). The Court has re-reviewed the excluded records (Rec. Doc. 83 Exhibit P-9), and notes that they contain no m edical opinion suggesting that Faulk's com plaints were causally-related to job stress. The records do indicate other pre-existing health issues. 4 uncorroborated testim ony about how em otionally trying the term ination had been; how em barrassed he was about town by the whole incident; and how he was depressed over having lost his job. Id. at 251. The Fifth Circuit rem itted the entire non-pecuniary dam age award after concluding that Hitt's uncorroborated testim ony was too vague and non-specific. Id. The court explained that the evidence necessary to support a non-pecuniary dam age award m ust establish a specific and discernable injury to the plaintiff's m ental state. Id. at 250 . Hitt's uncorroborated testim ony of m ental distress with no evidence of physical m anifestations of stress was insufficient to m eet this standard. Id. Forsy th v. City of Dallas, 91 F.3d 769 (5th Cir. 1996), is another instructive decision that represents the other end of the dam ages spectrum . Forsy th was also a First Am endm ent retaliation case involving police officers. The plaintiffs (Kirks and Forsyth) were two Dallas police officers who were transferred to night uniform ed patrol after they spoke out about potentially unlawful conduct by their superiors in the departm ent. The jury awarded m ental anguish dam ages of $ 50 ,0 0 0 and $ 75,0 0 0 to Kirks and Forsyth, respectively.5 Id. at 773. These awards were based on the plaintiffs' own testim ony. Kirks testified that he had suffered depression, sleeplessness, and m arital problem s. Id. at 774. Forsyth testified that she suffered depression, weight loss, intestinal troubles, and m arital problem s; that she had been sent hom e from work because of her depression, and that she had to consult a psychologist. Id. The Fifth Circuit upheld the awards on appeal, recognizing that judgm ents regarding noneconom ic dam ages are "notoriously variable," and that the court had no basis to disturb the jury's verdict. Id. 5 These awards are for past m ental anguish only. The Forsy th jury also awarded the plaintiffs future m ental anguish dam ages, 91 F.3d at 773, but Faulk presented no evidence to support the inference that he should be awarded future m ental anguish dam ages. 5 Faulk argues that his trial testim ony establishes that he suffered essentially the sam e em otional harm as Kirks, who received a $ 50 ,0 0 0 award alm ost 20 years ago. (Rec. Doc. 10 8, Opposition at 7). But the nature of Faulk's evidence was also not vastly different from what was offered in Hitt, a m ore recent case, where the Fifth Circuit rem itted the entire nonpecuniary dam age award. That decision is not unique.6 The Court is persuaded that $ 30 ,0 0 0 is the m axim um recovery that the jury could have reasonably awarded Faulk. Faulk's testim ony was com pletely uncorroborated, and while that is not in and of itself problem atic, Faulk's com plaints were essentially those of inconvenience, albeit accom panied by stress. Faulk rejected the opportunity to m itigate his dam ages by taking another position that would have cured the custody situation. The award of $ 75,0 0 0 to Faulk for past m ental anguish is excessive as a m atter of law in light of the evidence presented at trial. Duplantis does not suggest that the jury's verdict was the result of passion or prejudice, and the Court likewise sees no evidence of such a problem . The appropriate rem edy for the excessive award is therefore rem ittitur. The Court will rem it the com pensatory dam age award to $ 30 ,0 0 0 , which com prises over a $ 10 0 0 a m onth in com pensation for the two years of shift work that Faulk endured. If Faulk refuses to rem it then the Court will order a new trial on dam ages. Pu n it iv e D a m a g e s Duplantis contends that the $ 275,0 0 0 exem plary dam age award was both 6 See, e.g., Brow n, 256 Fed. Appx at 711. In Brow n, the plaintiff testified that his em ployer's discrim ination caused him m ental anguish, em otional suffering, and stress, that resulted in m arital difficulties, and aggravation to his already-existing kidney stones. The Fifth Circuit rem itted the entire non-pecuniary dam age award ($ 25,0 0 0 ) after concluding that the plaintiff's evidence was insufficient to support any award at all. Id. Although unpublished cases do not constitute precedent in this circuit, see Fifth Circuit Rule 47.5.4, the results of those cases are very real and instructive to other litigants. 6 constitutionally invalid and against the great weight of the evidence. Duplantis urges the Court to rem it the award com pletely or to $ 5,0 0 0 at the m ost. The jury concluded that Duplantis acted with m alice or wilfulness or with callous and reckless indifference to the safety or rights of others when he retaliated against Faulk. (Verdict Form , Rec. Doc. 10 0 -1 at 3). In 20 12, a police chief in Duplantis's position would have known that he could not take retaliatory action against an officer for the exercise of his First Am endm ent rights. Duplantis need not have acted m aliciously, but only wilfully and with indifference to the rights of others. (J ury Instructions at 5). The jury was instructed that the purpose of punitive dam ages is to discourage sim ilar conduct in the future and to punish the defendant for his past conduct. (Id.). The jury's conclusion that punitive dam ages were appropriate under the circum stances was not against the great weight of the evidence. The Court therefore cannot rem it the award com pletely. The Court does agree, however, that an award of $ 275,0 0 0 is excessive in light of the evidence presented at trial. Faulk attem pts to analogize his case to Forsy th, supra, where Forsyth received $ 125,0 0 0 in punitive dam ages from each of two defendants under § 1983. The Forsy th plaintiffs had been transferred for reporting unlawful activity that not only violated other citizens' constitutional rights to privacy but com prom ised a sensitive undercover investigation. See Forsy th, 91 F.3d at 772. Forsy th not only dem onstrates that the award of $ 275,0 0 0 was grossly excessive in Faulk's case, but Forsy th's far m ore egregious facts distinguish it from this case. Duplantis's conduct violated Faulk's clearly established rights but his conduct was neither shocking nor reprehensible and there was no evidence of m alice or danger to others. Moreover, there was no evidence offered at trial to suggest that an award of $ 275,0 0 0 is necessary to effectively punish Duplantis in light of his personal 7 resources. And a $ 275,0 0 0 personal judgm ent against a police officer is well beyond what is necessary to deter either Duplantis or others in his position from engaging in sim ilar conduct. The Court will rem it the punitive dam ages award to $ 15,0 0 0 . If Faulk refuses to rem it then the Court will order a new trial on dam ages. The m otion for attorneys fees is dism issed as prem ature.7 Accordingly, and for the foregoing reasons; IT IS ORD ERED that the Mo tio n fo r N e w Trial, o r in th e Alte rn ative , Re m ittitu r ( Re c. D o cs . 10 7) filed by Defendant, Todd Duplantis is GRAN TED . The Court rem its the com pensatory dam age award to $ 30 ,0 0 0 and the punitive dam age award to $ 15,0 0 0 . On or before D e ce m be r 3 1, 2 0 14 , Faulk m ust either file into the record an acceptance of the rem ittitur or a notice of his intent to retry the dam ages portion of this case;8 IT IS ORD ERED that the Mo tio n fo r Atto rn e y's Fe e s ( Re c. D o c. 110 ) filed by Plaintiff, Kyle Faulk is D EN IED without prejudice as prem ature. Decem ber 9, 20 14 J AY C. ZAINEY UNITED STATES DISTRICT J UDGE Clerk: Copy via ECF to Magistrate J udge Knowles 7 The attorney's fee m otion is prem ature but the Court advises that fees of $ 159,0 0 0 based on an hourly rate of $ 350 .0 0 will not be awarded. And of course the figure of $ 140 ,0 0 0 based on a contingency fee calculation is no longer valid in light of the rem ittitur. 8 The Court strongly urges the parties to attem pt once again to settle this m atter. At the parties' request, the Court will extend the deadline for Faulk to file his notice regarding the rem ittitur/ new trial if the parties need additional tim e to engage in settlem ent negotiations. 8