Free Other Notice - District Court of Arizona - Arizona

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Thomas L. Hudson, 014485 Danielle D. Janitch, 021838 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 [email protected] [email protected] (602) 640-9000 Steven C. Dawson, 006674 Anita Rosenthal, 006199 DAWSON & ROSENTHAL, P.C. 6586 Highway 179, Suite B-2 Sedona, Arizona 86351 [email protected] (602) 494-3800 Gregg H. Temple, 009866 GREGG H. TEMPLE, P.C. 4835 East Cactus Road, Suite 225 Scottsdale, Arizona 85254 [email protected] (602) 808-0508 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Brett D. Leavey, Plaintiff, vs. UNUM/Provident Corporation, a foreign corporation; and Provident Life and Accident Insurance Company, a foreign corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV-02-2281 PHX SMM PLAINTIFF'S NOTICE RE NEW TRIAL/REMITTITUR

Case 2:02-cv-02281-SMM

Document 278

Filed 07/07/2006

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On May 26, 2006, the Court issued its Memorandum of Decision and Order remitting the compensatory damages award from $4 million to $1.2 million, and "remitting" the punitive damages awards from $15 million to $3 million, subject to Plaintiff's election concerning a new trial on the issue of damages by June 26, 2006. In its order, the Court observed that "[i]n order to preserve Plaintiff's Seventh Amendment jury rights, the court will not order a remittitur without also offering the option of a new trial." (May 26, 2006 Order ("Order") at 27.) In its June 22, 2006 Order denying Plaintiff's Motion for Reconsideration re Remittitur of Punitive Damages Award, the Court extended the deadline to accept or reject the remittiturs to July 7, 2006. The Court's reduction of the punitive damages award does not implicate Plaintiff's Seventh Amendment jury rights. Accordingly, the Seventh Amendment did not require the Court to offer a new trial on the issue of punitive damages. Additionally, Plaintiff is willing to accept the remittitur of the compensatory damages award if the Court enters judgment on the punitive damages award (without the offer of new trial on the issue of punitive damages). Plaintiff sets forth his analysis and election below in light of this clarification.

I.

The Court Should Not Grant a Conditional New Trial With Respect to the Punitive Award The Court correctly observed that reducing the compensatory award implicated

"Plaintiff's Seventh Amendment jury rights," thereby requiring the Court to offer Plaintiff a choice between a new trial on damages or accepting a remittitur." (Order at 27.) However, "[b]ecause the jury's award of punitive damages does not constitute a finding of `fact,'" but rather an issue of law considered de novo, a reviewing court's reduction of a punitive award as constitutionally excessive "does not implicate the Seventh Amendment . . . ." Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 (2001); see also id. at n.11 (the constitutionally appropriate level of damages is not "itself a `fact' within the meaning of the Seventh Amendment's Reexamination
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Clause"); see also Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1049-50 (8th Cir. 2002) ("the court's mandatory review of a punitive damages award does not implicate the Seventh Amendment"). In light of the Seventh Amendment's inapplicability in this context, courts agree that reducing an unconstitutionally excessive punitive award is independent of the Seventh Amendment constraints on the plaintiff's right to consent to remittitur. Ross, 293 F.3d at 1050 n.4. As the Eighth Circuit has explained, "[w]hile the traditional remedy of remittitur does require the plaintiff's consent in order to comport with the Seventh Amendment right to jury trial, the court's mandatory review of a punitive damages award does not implicate the Seventh Amendment." Id. at 1049-50. Similarly, the Eleventh Circuit has explained that a reduction of a punitive award on constitutional grounds "is not really a remittitur at all:" The court orders a remittitur when it believes the jury's award is unreasonable on the facts. A constitutional reduction, on the other hand, is a determination that the law does not permit the award. Unlike a remittitur, which is discretionary with the court ... a court has a mandatory duty to correct an unconstitutionally excessive verdict so that it conforms to the requirements of the due process clause. Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1331 (11th Cir. 1999); see also Leatherman Tool Group, Inc. v. Cooper Indus., Inc., 285 F.3d 1146, 1151 & n.3 (9th Cir. 2002) (reducing constitutionally excessive punitive damages award without offering new trial); Simon v. San Paolo U.S. Holding Co., 113 P.3d 63, 80-81 (Cal. 2005) (explaining that because the court in reducing a constitutionally excessive punitive damages award does not "decide any question of fact plaintiff has a right to have decided by a jury . . . a new trial on punitive damages would be futile."); Eden Elec. Ltd. v. Amana Co., 258 F. Supp. 2d 958, 975 (N.D. Iowa 2003) ("Because the Court is reducing the verdict as a matter of constitutional law, it need not issue a

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remittitur or otherwise obtain the Plaintiff's consent."), aff'd, 370 F.2d 824 (8th Cir. 2004).1 The inapplicability of the Seventh Amendment to the punitive award holds true regardless of whether the underlying compensatory award is also reduced because the question remains the legal one of the constitutionally appropriate level. See Ross, 293 F.3d at 1049 n.4 (where there has been a reduction of both punitive and compensatory awards, the Seventh Amendment requires consent for a remittitur of "the compensatory damages verdict only"). Consequently, in a case such as this where the plaintiff is willing to accept the remittitur of the compensatory damages award, the only question that remains is a legal one. Accordingly, if Plaintiff accepts the remittitur of the compensatory award, the Court should enter judgment on the reduced punitive damages award. Cf. State Farm v. Campbell, 538 U.S. 408, 429 (2003) ("The proper calculation of punitive damages under the principles we have discussed should be resolved, in the first instance, by the Utah courts.") (emphasis added). That procedure will permit either or both parties, if they choose, to seek further appellate review.

II.

Plaintiff's Position Re New Trial/Remittitur In light of the above, Plaintiff makes the following election(s): 1. Plaintiff accepts the remittitur of the compensatory damages award from

$4 million to $1.2 million subject to the Court simply entering judgment on the reduced punitive damages award (because reducing the punitive damages award does not implicate Plaintiff's Seventh Amendment rights). However, Plaintiff will not accept the remittitur of the compensatory award if that precludes Plaintiff from seeking appellate review of the reduction of the punitive damages award.

Although some Ninth Circuit cases have remanded for a remittitur or new 27 trial without analysis or discussion, e.g., Planned Parenthood v. American Coalition of Life Activists, 422 F.3d 949, 965 (9th Cir. 2005), the Ninth Circuit in Leatherman 28 expressly endorsed Johansen's rationale. See Leatherman, 285 F.3d at 1150 (citing Johansen, 170 F.3d 1320). Case 2:02-cv-02281-SMM Document 278 4 Filed 07/07/2006 Page 4 of 7

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2.

If Plaintiff is legally mistaken and Plaintiff's only options are: (1) to

accept the remittitur of the compensatory damages award from $4 million to $1.2 million and accept a true "remittitur" of the punitive damages award (because the reduction of the punitive damages award does implicate Plaintiff's Seventh Amendment rights thereby requiring the option of a new trial); or instead (2) to proceed to a new trial on the amount of damages for both the compensatory damages award and the punitive damages award, Plaintiff rejects both remittiturs and elects to proceed to a new trial on the issue of punitive and compensatory damages.2

III.

Conclusion In light of the above, Plaintiff asks the Court to enter judgment reflecting:

(1) Plaintiff's acceptance of the remittitur of the compensatory damages award of pain and suffering from $4 million to $1.2 million; and (2) the Court's reduction of the punitive damages award (determined by the court to be unconstitutionally excessive) from $15 million to $3 million; (3) the jury's verdict of $809,028 in future policy benefits; (4) the Court's award of attorneys' fees in the amount of $755,247.50; and (5) post-judgment interest at the rate mandated by law. A proposed form of judgment accompanies this Notice. ... ... ... ... ... ...

Plaintiff reserves the right to appeal any ruling ordering a new trial. See Eaton v. Nat'l Steel Prods. Co., 624 F.2d 863, 863 (9th Cir. 1980) (noting the general 27 rule that "[a]n order granting a new trial, which may or may not be accompanied by a provision for remittitur, is an interlocutory order not appealable as a final judgment," 28 along with the "exception" to this rule "when the district court grants a new trial when it has no jurisdiction to do so"). Case 2:02-cv-02281-SMM Document 278 5 Filed 07/07/2006 Page 5 of 7

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If the Court concludes that the Seventh Amendment applies to the reduction of the punitive damages award, Plaintiff asks that the Court enter an order granting a new trial on the issue of compensatory and punitive damages. DATED this 7th day of July, 2006. Steven C. Dawson, 006674 Anita Rosenthal, 006199 DAWSON & ROSENTHAL, P.C. 6586 Highway 179, Suite B-2 Sedona, Arizona 86351

Gregg H. Temple, 009866 GREGG H. TEMPLE, P.C. 4835 East Cactus Road, Suite 225 Scottsdale, Arizona 85254-4196

OSBORN MALEDON, P.A. By s/Thomas L. Hudson Thomas L. Hudson Danielle D. Janitch 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 Attorneys for Plaintiff

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I hereby certify that on July 7th, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Stephen M. Bressler Ann-Martha Andrews Scott Michael Bennett Dawn M. Bergin Lewis and Roca, LLP 40 North Central Avenue Phoenix, Arizona 85004-4429 [email protected] [email protected] [email protected] [email protected] Attorneys for Defendants s/Brenda Wendt
1299394

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