Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC. Defendants. DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR REMITTITUR UNDER RULE 59 Defendants Mountain Coal Company, L.L.C., Arch Western Resources, L.L.C., and Arch Coal, Inc., by their attorneys, Holland & Hart LLP, submit this Reply in support of their motion for remittitur under Fed. R. Civ. P. 59 (Dkt. No. 459), filed April 10, 2007. I. A. ARGUMENT

REMITTITUR IS PROPER WHERE, AS HERE, A DAMAGE AWARD IS EXCESSIVE. Plaintiff misstates and misapplies the standard for remittitur, arguing that remittitur is

appropriate only where passion or prejudice have influenced the jury's verdict. Response at 2, 6, 10. In fact, the influence of passion and prejudice on a jury verdict is relevant only when a new trial is being sought ­ not when, as here, a party merely seeks remittitur based on the excessiveness of the verdict. As the Tenth Circuit has explained, "It is well settled that mere excessiveness in the amount of an award may be cured by a remittitur, whereas excessiveness

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which results from jury passion and prejudice may not be so cured. In that case, a new trial is required." Mason v. Texaco, Inc., 948 F.2d 1546, 1561 (10th Cir. 1991). Accord Blair v. EaglePicher Indus., Inc., 962 F.2d 1492, 1499 (10th Cir. 1992) (quoting Mason). Plaintiff also contends, relying largely on cases from the District of Columbia and Seventh Circuits, that comparisons to other cases are of little value in considering a motion for remittitur. Resp. at 1-2, 10. On this same point, Plaintiff also cites a 1958 Tenth Circuit case concerning damages awarded to members of an Indian tribe after their horses and burros were wrongfully seized and destroyed by the government. Resp. at 10 (citing U.S. v. Hatahley, 257 F.2d 920, 925 (10th Cir. 1958)). In that case, the district court arrived at a total amount to be awarded to all of the plaintiffs for pain and suffering, then divided it equally among them, an approach the Tenth Circuit found improper because it failed to take into account the personal and individual nature of such injuries. Id. The case does not stand for the far broader proposition that a court should not consider awards in other similar cases in order to test whether an award is excessive; indeed, the law of this Circuit clearly endorses such an approach. See, e.g., Wulf v. City of Wichita, 883 F.2d 842, 875 (10th Cir.1989) (remitting award based on a "review of the record, informed by a review of awards granted in other comparable cases"); Powell v. Cobe Labs., Inc., 2000 WL 235241, at *9 (10th Cir. March 2, 2000) (upholding remittitur to same amount awarded in Wulf, as evidence in both cases was comparable) 1 ; Hughes v. Regents of the

Plaintiff suggests that the Court should deny Defendants' Motion for Remittitur for failure to comply with D.C.Colo.LCivR 7.1(D), concerning citations to unpublished opinions. Resp. at 11. The Court has admonished counsel previously for making this same argument. See Order (Dkt. No. 92), dated Feb. 20, 2003. Clearly, Plaintiff has access to computerized legal databases, since in his Motion for Attorneys' Fees (Dkt. No. 464), filed April 10, 2007, he seeks $3,226.03 for LEXIS charges. See Motion at 18. But, if counsel truly wanted to be provided a copy of Powell, 2

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Univ. of Colo., 967 F. Supp. 431, 437 (D. Colo. 1996) ("[a] court may look at awards in similar cases to determine whether an award is excessive"). B. THE TENTH CIRCUIT CONSIDERS CERTAIN FACTORS IN ASSESSING WHETHER EMOTIONAL DISTRESS DAMAGE AWARDS SHOULD BE REMITTED. Contrary to Plaintiff's assertion, Defendants have never stated that there is a rigid fivefactor test for consideration of a motion for remittitur. Resp. at 4. Rather, as Defendants explained in their Motion, the Tenth Circuit consistently focuses on certain factors in considering whether emotional distress awards are supported by substantial evidence. Mot. at 4 (citing Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1416-17 (10th Cir. 1997), and Wulf, 883 F.2d at 875). These factors include (1) the severity of the alleged conduct, (2) the nature and extent of emotional harm allegedly suffered by the plaintiff, (3) whether the plaintiff continued working in his chosen field, (4) the existence of corroborating testimony by objective witnesses, and (5) whether the plaintiff sought medical treatment or offered expert testimony concerning his emotional distress. See, e.g., Smith., 129 F.3d at 1416-17; Wulf, 883 F.2d at 875. See also Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1253 (10th Cir. 2005) (considering same issues); Baty v. Williamette Indus., Inc., 172 F.3d 1232, 1243-44 (10th Cir. 1999) (same). Despite his criticism, Plaintiff does not dispute that these are the relevant considerations. See Resp. at 4-6 (discussing same factors). However, Plaintiff misstates the function and purpose of some of the factors. For instance, with regard to the severity of the alleged conduct, he states that court should consider "whether the defendant acted in a callous manner toward the plaintiff" and "whether the defendant ever apologized or attempted to fix its conduct." Id. at 5. (cont'd.).. they need only have asked. At any rate, a copy of the Powell opinion is attached hereto as Exhibit A.

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In referencing "callousness," Plaintiff incorrectly tries to infuse the standard applicable to punitive damages when, as Plaintiff himself admits, any alleged misconduct is relevant only "`as a proxy to assess the distress inflicted upon plaintiff.'" Id. (quoting Peyton v. DiMario, 287 F.3d 1121, 1128 (D.C. Cir. 2002)). And, as to apologies by the defendant, Plaintiff cites two Kansas cases where the defendants' continuing or retaliatory actions were part of the alleged misconduct that caused the emotional distress, facts which are distinguishable from those here. Id. (citing Goico v. Boeing Co., 358 F. Supp.2d 1028, 1030-31 (D. Kan. 2005) (considering defendant's "unlawful retaliation" in assessing emotional distress suffered by plaintiff); Hampton v. Dillard Dep't Stores, 18 F. Supp.2d 1256, 1276 (D. Kan. 1998) (considering defendant's "refusal to apologize" in assessing emotional distress suffered from false accusations of shoplifting)). C. APPLYING THESE FACTORS, AND CONSIDERING THE AWARDS IN SIMILAR CASES, THE DAMAGE AWARD IS EXCESSIVE. Based on application of the relevant factors to the evidence presented in this case, and considering the amounts awarded in comparable cases, the $250,000 emotional distress award is plainly excessive. 2 First considering the severity of the alleged conduct, Plaintiff attempts to recast the facts of this case to render them more comparable to those cases where large emotional distress awards have been upheld. But while Plaintiff did lose his job, he was also initially exempted from company policy eliminating light-duty assignments, was provided short- and long-term disability benefits, was kept on the payroll for some time after these benefits expired, and was offered reinstatement in 2003. On the other hand, there was no evidence that he was subjected to the types of harassment or misconduct that have justified emotional distress awards The parties do not dispute the substance of Plaintiff's testimony on this issue; however, for ease of reference, Defendants have attached a transcript of Plaintiffs' trial testimony as Exhibits B ­ D and have cited the relevant portions of that testimony here.
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in excess of $50,000 in other cases. See, e.g., Baty, 172 F.3d at 1243-44 (upholding $145,000 award where plaintiff alleged that, inter alia, her co-workers and supervisors made graphic sexual remarks to her; there was offensive graffiti in the bathroom; her supervisor grabbed her breast and repeatedly asked her out; and she was terminated after reporting these issues). Plaintiff also complains about Defendants' failure to apologize to him and about the 2003 offer of reinstatement, apparently arguing that defending one's legal position and extending a job offer are grounds for increasing an emotional distress award. Resp. at 8-9. In addition to being entirely unsupported by any authority, this argument also defies common sense. Indeed, while Plaintiff now argues that the offer of employment was "insulting," id. at 9, it was Plaintiff himself who applied for that position. Ex. C at 151:5-15. Turning to the nature and extent of emotional harm allegedly suffered by the plaintiff, Plaintiff testified only (1) that he felt unwelcome and rejected at Mountain Coal, Ex. B at 63:1619, 66:3-5; Ex. C at 69:17-19, 187:20-23, and (2) that it was stressful for him financially to lose his job and to move around from job to job for the first few years after his termination, Ex. B at 60:11-13; Ex. C at 161:2-11. Plaintiff's response improperly emphasizes the financial loss he suffered ­ as opposed to the emotional effects of that loss. See Resp. at 5-6, 7-8, and Exs. A & B to Resp. Plaintiff has already been compensated for his loss of pay and benefits through the $219,011 award for economic loss and the $71,980.07 in interest awarded on economic damages. He cannot "double dip," receiving reimbursement a second time for his financial losses, but must limit his consideration here to any alleged emotional harm. Likewise, Plaintiff's reference to lack of "piece of mind" because his subsequent employment offered fewer medical and other benefits and "reduced quality of life" because he was earning less money, Resp. at 7, 8, is

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entirely improper. Plaintiff offered no testimony whatsoever on these issues at trial. The jury's excessive emotional distress award cannot be rescued by such after-the-fact justification. As to the third factor, Plaintiff was able to continue working in his chosen field. Indeed, he held several jobs in the construction industry, beginning around the time of his termination and continuing for the next few years afterward. Ex. B at 55:19-58:5; Ex. C at 69:25-70:25. Shortly after his medical restrictions were lifted in late 2002, he returned to the mining industry. Ex. C at 150:18-151:25, 155:21-156:13. Turning to the fourth factor, significantly, Plaintiff did not offer any corroborating testimony by any objective witnesses as to his emotional distress. The only corroborating evidence cited by Plaintiff consists of two exhibits relating to his wage losses. Resp. at 7; Exs. A & B to Resp. However, these exhibits offer nothing more than the raw figures of Plaintiff's wage and benefit losses ­ figures which, as discussed above, are not themselves relevant here. Finally, Plaintiff does not dispute that he sought no medical treatment and offered no expert testimony concerning his emotional distress. See also Ex. C at 69:20-24 (Plaintiff admits he did not seek the help of a psychiatrist or other mental health professional). Considering all of these factors, the $250,000 awarded by the jury is plainly excessive and should be remitted to $50,000. See, e.g., Praseuth, 406 F.3d at 1253 (upholding $50,000 award where plaintiff alleged that she was terminated in violation of the ADA; testified that she experienced a variety of depressive symptoms such as inability to eat and sleep and thoughts of suicide; and offered testimony from her psychiatrist that she suffered from a major depressive disorder which caused her to lose sleep and have suicidal thoughts); Powell, 2000 WL 235241, at *9 (affirming remittitur of award from $300,000 to $50,000 where plaintiff alleged that she lost

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her position because of her gender; testified that she was "very sad, very depressed, very upset," that the experience had a "major impact" on her entire family, that she cried every day, that she sought help from a psychotherapist, and that she sought treatment for migraines; and offered testimony from her psychotherapist that she suffered symptoms of stress, anxiety, worry, depression, anger, and a sense of powerlessness); Wulf, 883 F.2d at 875 (ordering remittitur of award from $250,000 to an amount not to exceed $50,000 where plaintiff alleged that he was terminated for engaging in First Amendment protected speech and that defendant interfered with his ability to obtain new employment or start his own business; testified that the loss of his job was "very stressful" and that he was angry, depressed, scared and frustrated; and offered testimony from his wife that he was under "tremendous emotional strain" and they experienced significant financial difficulties). See also Chellen v. John Pickle Co., 44 F. Supp.2d 1247, 1287-88, 1294 (N.D. Okla. 2006) (awarding $52,000 for emotional distress to employees who alleged that they were discriminated against and harassed because of their national origin; testified that they were humiliated, degraded and lost self-respect; admitted that they continued to work in their chosen professions; and offered no medical testimony on emotional distress); Hughes, 967 F. Supp. at 438-39 (citing cases for proposition that "[d]amages awarded solely for emotional distress in discrimination cases arising under title VII and related statutory provisions are typically less than $50,000" and remitting award from $125,000 to $50,000). 3 Notably, Plaintiff has made no attempt to distinguish the facts of either Wulf or Powell
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Plaintiff also argues that any comparison to other cases must be adjusted for inflation. Resp. at 11, 12. Yet the various cases that have found $50,000 to be an appropriate award, based on far more evidence than is present here, range from 1989 (Wulf) to 2005 (Praseuth). Also, in 2006 ­ the same year as the trial of this case ­ another district court in this circuit awarded $52,000 in emotional distress damages to a group of employment discrimination plaintiffs. Chellen, supra.

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(aside from arguing that Wulf is not a recent case), apparently conceding that there is no more support for Plaintiff's emotional distress award in this case than there was in Wulf and Powell, where the awards were each reduced to $50,000. Powell, 2000 WL 235241, at *9; Wulf, 883 F.2d at 875. Nor do the cases cited by Plaintiff support his $250,000 award. For example, Smith, which upheld a $200,000 award (still less than the $250,000 awarded here), involved allegations that the plaintiff's supervisor made various "invective" sexually disparaging and racial degrading remarks to her in a small office setting, as well as testimony that the plaintiff experienced nausea, migraines, humiliation, degradation, loss of self-respect, crying, and stress in her relationship with her daughter and was unable to continue working in her chosen field. 129 F.3d at 1413-17. Moreover, the Smith Court noted that, in contrast to Wulf, the plaintiff had offered objective testimony by two co-workers corroborating her emotional distress. Id. at 1416. The other two Tenth Circuit cases cited by Plaintiff also lend no support to his argument. In Abuan v. Level 3 Communications, Inc., the district court reduced a $5 million compensatory damage award to $300,000 by applying the statutory damage cap, and the defendant did not challenge this amount on appeal. 353 F.3d 1158, 1167-68 (10th Cir. 2003). Similarly, the plaintiff in O'Neal v. Ferguson Construction Co. did not challenge the amount of the emotional distress award ($305,721.25), but argued only that there was insufficient evidence to include a jury instruction on future emotional distress and that the award should be remitted by application of the statutory damage cap. 237 F.3d 1248, 1257 (10th Cir. 2001). On the more general issue of whether there was any evidence of future emotional distress, the court noted that (1) the plaintiff testified that he started seeing a psychiatrist before his termination, but could not afford treatment afterward, and that as of the time of trial he still continued to suffer from inability to

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sleep and loss of appetite, and (2) his wife testified that his condition had gotten worse since his termination and that he was more worried and unhappy than he was when they first met. Id. Nor do the district court cases cited by Plaintiff further his position. The court in Thornton v. Kaplan declined to remit a $250,000 award where the plaintiff alleged that he was denied tenure for engaging in protected activities; testified about the changes in his lifestyle, his loss of enjoyment, stress, humiliation, clinical depression and obsession about the matter, his feelings of exclusion from the academic community, his fears of present and future financial difficulties, his stress about selling his home and moving, his visit to a doctor, and his thoughts of suicide; and offered supporting testimony from his colleagues. 958 F. Supp. 502, 504-07 (D. Colo. 1996). Likewise, the court in Goico declined to remit a $300,000 award (reduced from $625,000 to the statutory cap), considering the plaintiff's and his wife's testimony about his difficulty sleeping and other evidence of his humiliation and mental anguish. 358 F. Supp.2d at 1030-31. The court in Berry v. Stevinson Chevrolet awarded $250,000 to a plaintiff who alleged that the defendant retaliated against him by causing criminal proceedings to be initiated against him, resulting in "extreme emotional distress, suffering, embarrassment, humiliation, loss of reputation, standing in the community, and other hardship." 804 F. Supp. 121, 131 (D. Colo. 1992). And, while the district court in Rawson v. Sears, Roebuck & Co. upheld a $5 million award for pain, suffering and humiliation arising from a store manager's wrongful termination, 615 F. Supp. 1546 (D. Colo. 1985), the Tenth Circuit vacated the award, finding no private right of action under the relevant statute. 822 F.2d 908 (10th Cir. 1987). Finally, Plaintiff references a D.C. Circuit opinion upholding a $300,000 emotional distress damage award (reduced from $482,000 to the statutory cap) under circumstances far

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more compelling than those present here. Peyton, 287 F.3d at 1123. There, the plaintiff alleged that she was sexually harassed by a supervisor, threatened, intimidated, physically assaulted, retaliated against, and ultimately terminated for exercising her rights; and she testified that she became distressed, depressed, angry and fearful of her work environment and that she suffered a loss of self-esteem. Id. at 1126. Plaintiff's evidence here pales in comparison. As the cases cited by both parties reveal, where, as here, a plaintiff does not allege any severe harassment or misconduct, offers little evidence of emotional harm, provides no corroborating testimony by objective witnesses, is able to continue working in his chosen field, and does not seek medical treatment or offer expert testimony concerning the severity of his distress, an emotional distress award should not exceed $50,000. II. CONCLUSION

For the foregoing reasons, Defendants request that Plaintiff Clawson's non-economic damage award be remitted to $50,000. If Plaintiff Clawson refuses to accept such remittitur, a new trial as to emotional distress damages only should be held. Dated: May 21, 2007. Respectfully submitted, s/ Jeffrey T. Johnson Jeffrey T. Johnson Christina Gomez HOLLAND & HART LLP D.C. Box 6 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 (303) 295-8000 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on May 21, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] (J. Keith Killian) [email protected] (Damon Davis) I am not aware of any non CM/ECF participants in this matter requiring service by other means.

s/ Jeffrey T. Johnson Jeffrey T. Johnson Christina Gomez Attorneys for Defendants HOLLAND & HART LLP 555 Seventeenth Street, Ste. 3200 Post Office Box 8749 Denver, Colorado 80201 Telephone: (303) 295-8000 Facsimile: (303) 295-8261 E-mail: [email protected] [email protected]

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