Free Motion for New Trial - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

Document 459

Filed 04/10/2007

Page 1 of 9

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' 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, hereby move for remittitur, pursuant to Fed. R. Civ. P. 59. In accordance with D.C.COLO.LCivR 7.1(A), Defendants state that they have conferred with counsel for Plaintiff Clawson regarding this motion; Plaintiff Clawson opposes the relief sought by this motion. I. INTRODUCTION

The $250,000 non-economic, or emotional distress, award entered in favor of Plaintiff Michael E. Clawson is grossly excessive and unfounded, given the scant evidence Clawson presented at trial about any emotional harm he suffered as a result of Defendants' alleged misconduct. Indeed, the Tenth Circuit has not only affirmed ­ but has also mandated ­ the application of remittitur in instances where plaintiffs presented far more evidence than Clawson did here. Thus, the emotional distress award should be remitted to $50,000.

Case 1:01-cv-02199-MSK-MEH

Document 459

Filed 04/10/2007

Page 2 of 9

II.

FACTUAL BACKGROUND

Three claims were tried to the jury in this case: Plaintiff Clawson's claim for failure to accommodate his "regarded as" disability under the Americans with Disabilities Act ("ADA"); and Plaintiff Dillon's claims for failure to accommodate his "regarded as" disability and for wrongful termination in violation of the ADA. The jury found in favor of Clawson on his claim for failure to accommodate his "regarded as" disability and awarded him $236,000 in economic damages and $250,000 in non-economic damages. Verdict Form (Dkt. 407) at 6. The jury did not award Clawson any punitive damages. Id. The jury also found in favor of Dillon on both of his claims, but those claims were dismissed by the Court's January 24, 2007 Order granting in part and denying in part Defendants' Rule 50(a) motion (Dkt. No. 447). Following entry of the verdict, Clawson moved for an assessment of punitive damages (Dkt. No. 418). Additionally, both parties filed motions concerning the jury's advisory verdict on economic damages, with Clawson requesting that the Court award back pay in the amount advised by the jury (Dkt. No. 422) and Defendants requesting a reduction of the back pay award on various grounds (Dkt. No. 423). In its January 24, 2007 Order (Dkt. No. 447), the Court denied Clawson's motion to assess punitive damages, adopted the jury's advisory verdict on back pay, and reduced the back pay award by the amounts Clawson had received in short- and long-term disability benefits. In its oral ruling following the evidentiary hearing on March 27, 2007, the Court denied Defendants' motion to reduce the non-economic damage award based on application of the statutory damage cap. Thus, on March 27, 2007, the Court entered judgment in favor of Plaintiff Clawson in the amount of $540,991.07, consisting of $219,011 in economic

2

Case 1:01-cv-02199-MSK-MEH

Document 459

Filed 04/10/2007

Page 3 of 9

damages, $71,980.07 in interest on economic damages, and $250,000 in non-economic damages (Dkt. No. 457). The Court also entered judgment against Dillon. Id. III. A. LEGAL STANDARD FOR REMITTITUR A damage award "must be supported by substantial evidence." Wulf v. City of Wichita, 883 F.2d 842, 874 (10th Cir. 1989). "If a damage award is excessive or so large as to appear contrary to reason, a remittitur is the appropriate relief." Hughes v. Regents of the Univ. of Colo., 967 F. Supp. 431, 437 (D. Colo. 1996) (remitting Title VII/ADEA plaintiff's $125,000 emotional distress award to $50,000). 1 In employment discrimination cases such as this, "`[a] remittitur is in order when a trial judge concludes that a jury verdict is clearly unsupported by the evidence and exceeds the amount needed to make the plaintiff whole, i.e., to remedy the effect of the employer's discrimination.'" Id. (quoting Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1100 (3d Cir. 1995)). In determining whether an emotional distress award is excessive, the court may take into account both the evidence presented by the plaintiff and the amounts awarded in comparable cases. See Wulf, 883 F.2d at 875 (stating that "[o]ur review of the record, informed by a review of awards granted in other comparable cases, indicates that the award should have been no greater than $50,000," and directing trial court to remit the award to an amount "not to exceed $50,000") (emphasis in original); Hughes, 967 F. Supp. at 437 ("[a] court may look at awards in similar cases to determine whether an award is excessive"). The determination of whether to ARGUMENT

Where a remittitur is ordered, the plaintiff has the option of either accepting the reduced judgment or proceeding to a new trial on damages. Sloan v. State Farm Mut. Auto. Ins. Co., 360 F.3d 1220, 1225 (10th Cir. 2004).

1

3

Case 1:01-cv-02199-MSK-MEH

Document 459

Filed 04/10/2007

Page 4 of 9

remit such an award is within the trial court's discretion. Blanke v. Alexander, 152 F.3d 1224, 1236 (10th Cir. 1998). B. THE EMOTIONAL DISTRESS AWARD SHOULD BE REMITTED The governing Tenth Circuit authority requires the consideration of several factors in determining whether an emotional distress damage award is supported by substantial evidence. These factors include: (1) the severity of the alleged conduct leading to the finding of liability; (2) the nature and extent of emotional harm allegedly suffered by the plaintiff; (3) whether the plaintiff was able to continue working in his chosen field; (4) the existence of any corroborating testimony by objective witnesses; and (5) whether the plaintiff sought medical treatment or offered any expert testimony concerning his emotional distress. See, e.g., Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1416-17 (10th Cir. 1997) (upholding $200,000 emotional distress award, after statutory cap was applied, where plaintiff's supervisor allegedly made various "invective" and sexually harassing remarks to plaintiff in an "intimate office setting" such that her co-workers could hear; plaintiff testified that she experienced nausea, migraines, humiliation, degradation, loss of self-respect, crying, and stress in her relationship with her daughter; plaintiff did not continue working in her chosen field; and at least two of plaintiff's coworkers testified that plaintiff was hurt, visibly shaken, and on the verge of tears). Applying these factors, the Tenth Circuit in Wulf, supra, ordered that a $250,000 emotional distress award had to be reduced to an amount "not to exceed $50,000" where the plaintiff's only evidence in support of his damages was (1) his own testimony that the loss of his job was "very stressful" and that he was angry, depressed, scared and frustrated, and (2) his wife's testimony that he was under "tremendous emotional strain" and that they experienced

4

Case 1:01-cv-02199-MSK-MEH

Document 459

Filed 04/10/2007

Page 5 of 9

significant financial difficulties after his termination. 883 F.2d at 875. In that case, the plaintiff, a city police officer, alleged that he was terminated for engaging in First Amendment protected speech. Id. at 846. In addition to terminating the plaintiff's employment, the police department had also taken actions that prevented him from obtaining new employment and interfered with his efforts to start his own business. Id. at 855. Nonetheless, comparing the plaintiff's substantive allegations and his allegations of emotional distress to analogous cases, the court held that the award was excessive and had to be reduced to $50,000 or less. Id. at 875. The Tenth Circuit also upheld the remittitur of a $300,000 emotional distress award to $50,000 based on similar concerns of excessiveness of the verdict in relation to the plaintiff's evidence of emotional distress and the awards upheld in other cases. Powell v. Cobe Labs., Inc., 2000 WL 235241, at *9 (10th Cir. March 2, 2000). There, the plaintiff alleged that she had been removed her from her position because of her gender. Id. at *1. Although she prevailed on her sex discrimination claim, she offered only "limited evidence in support of her emotional distress damages." Id. at *9. That evidence consisted of (1) her own testimony 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 from a physician for migraines, and (2) testimony from her psychotherapist that she exhibited symptoms of stress, anxiety, worry, depression, anger, and a sense of powerlessness. Id. Based on this record, the district court reduced the emotional distress award to $50,000, finding the plaintiff's evidence analogous to that presented in Wulf, 883 F.2d at 875. Powell, 2000 WL 235241, at *9. The Tenth Circuit upheld the reduction, even though the plaintiff had offered corroborating testimony from her psychotherapist, because the plaintiff's evidence of

5

Case 1:01-cv-02199-MSK-MEH

Document 459

Filed 04/10/2007

Page 6 of 9

emotional distress equated to less than 1% of her total proffer at trial and because neither her nor her psychotherapist's testimony was "developed to any significant degree." Id. Accordingly, the court found, "the limited depth and detail of the testimony . . . is comparable to Wulf " and, therefore, a reduction to the same amount ($50,000) was appropriate. Id. Similarly, in this case, Clawson's $250,000 emotional distress award is not supported by substantial evidence, and is excessive in relation to his allegations of emotional harm and the awards sustained in comparable cases. Applying the five factors outlined above, the evidence presented at trial reveals that: (1) Clawson did not allege that he was harassed in any way, but rather complained only that Mountain Coal Company, L.L.C. ("Mountain Coal") failed to accommodate his "regarded as" disability following an on-the-job injury and the exhaustion of his short-term disability leave; (2) Mountain Coal provided Clawson with short- and long-term disability benefits (as well as other employee benefits); (3) Mountain Coal offered to reinstate him in 2003, after his medical restrictions were lifted, but he declined the offer to take a job at a nearby mine; 2 (4) Clawson did not offer any detail about specific harms he allegedly suffered, but testified only that it was "pretty stressful" trying to stay employed after he lost his job, that he felt like "my feet had been kicked out from under me" and for a while he had to take whatever work he could find (although he admitted that any hurt feelings he had did not prevent him from going out and finding a job and working), that he felt "rejected" and "not welcome" at Mountain Indeed, in denying Clawson's motion for punitive damages, the Court noted that the evidence presented at trial demonstrated that "the Defendants initially exempted Plaintiff Clawson's lightduty assignment from its policy change eliminating such assignments," that "the Defendants continued to carry Plaintiff Clawson on the payroll for some period of time after his short-term disability leave was exhausted and he was otherwise subject to termination under the Defendants' policies," and that "the Defendants offered to re-hire Plaintiff Clawson in 2003." Dkt. 447 at 22. This is hardly the type of conduct that warrants a large emotional distress award.
2

6

Case 1:01-cv-02199-MSK-MEH

Document 459

Filed 04/10/2007

Page 7 of 9

Coal, and that he was upset about the way Mountain Coal had treated him ­ all issues that relate to his disappointment over losing his job and his concern about finding new employment, and thus, issues that are already largely addressed in his back pay award; (5) Clawson did not offer any corroborating testimony by other witnesses concerning his alleged emotional distress; and (6) Clawson did not see a psychiatrist or other mental health professional about any alleged emotional harm and did not offer any expert testimony concerning his emotional distress. Given the scant evidence Clawson offered in support of his claim for emotional distress damages, the $250,000 awarded by the jury is plainly excessive and should be remitted to a more reasonable sum of $50,000. As this Court has previously noted, "[d]amages awarded solely for emotional distress in discrimination cases arising under Title VII and related statutory provisions are typically less than $50,000." Hughes, 967 F. Supp. at 438 (citing cases, and finding that "the maximum reasonable amount of emotional damages the jury could have properly awarded to plaintiff is $50,000"). Such an amount is more than sufficient to remedy the relatively minor harms alleged by Clawson. See, e.g., Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1253 (10th Cir. 2005) (upholding $50,000 emotional distress award where plaintiff alleged that she was terminated in violation of the ADA, testified that she experienced various 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); Wulf, 883 F.2d at 875 (ordering remittitur to an amount not to exceed $50,000); Powell, 2000 WL 235241, at *9 (upholding remittitur to $50,000). 3

In making this argument, Defendants do not concede that Clawson is entitled to any damages at all. Rather, reserving their other arguments concerning issues of liability and damages, Defendants contend that if any damages are to be awarded for Clawson's alleged emotional 7

3

Case 1:01-cv-02199-MSK-MEH

Document 459

Filed 04/10/2007

Page 8 of 9

Based upon the evidence in this case, and as compared with emotional distress awards in other cases from the Tenth Circuit on evidence similar to ­ and, indeed, more compelling than ­ that presented here, the non-economic damage award to Clawson should be remitted to $50,000. IV. 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: April 10, 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

(cont'd.).. harm, such damages must be limited to $50,000. See, e.g., Viestenz v. Fleming Cos., 681 F.2d 699, 702 n.1 (10th Cir. 1982) ("a defendant against whom judgment is entered may maintain an appeal after requesting and receiving a remittitur in the trial court").

8

Case 1:01-cv-02199-MSK-MEH

Document 459

Filed 04/10/2007

Page 9 of 9

CERTIFICATE OF SERVICE I hereby certify that on April 10, 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]

3689568_4.DOC

9