Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

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Alcoholism , Drug Abuse and Mental Health , retaliated Springer against the plaintiff Dr. David Springer ), for expressions of protected speech , in violation of the First Amendment to the United States

T.

Constitution. The plaintiff was awarded
United States District Court D. Delaware.
David T. SPRINGER, M.

damages

, Plaintiff

Renata J. HENRY , individually and , in her official capacity as Director of the Division of Alcoholism , Drug Abuse and Mental Health of the Department of Health and Social Services of the State of Delaware
and Gregg C. Sylvester

accordingly. The defendant now challenge the verdict and moves for a new trial. The plaintiff seeks reinstatement and attorneys ' fees , interest , and costs. For the reasons stated below , the court wi\ grant in part the defendants motion challenging the damages award. The verdict will otherwise stand. The judgment for a new trial will be denied. Likewise , the plaintiffs motion for reinstatement will be denied. The court will grant the plaintiff's motion for fees , interest, and costs based
on the adjusted award.

II. BACKGROUND
A. Procedural History

, in his official capacity as Secretary of the Department of Health and Social Services ofthe State of Delaware , Defendants.
No. C. A. 00- 885
Sept. 16 ,

The plaintiff Springer filed a complaint on October 6

GMS.

2004.

2000 , seeking compensatory and punitive damages , as well as injunctive relieffor " retaliatory violations of the free speech and petition clauses ofthe FirstAmendment of the U. S. Constitution. II (D. I.). Springer named

Thomas S. Neuberger and Stephen 1. Neuberger of The Neuberger Firm , P. , Wilmington , Delaware for the plaintiff.
Phebe S. Young and

Marc P. Niedzielski

of the

Department of Justice ,

Civil Division , Wilmington

Delaware for the defendant.

Renata Henry, individually and in her offcial capacity as Director of the Division of Alcoholism , Drug Abuse and Mental Health (" DADAMH" ) of the Delaware Department of Health and Social Services (" DDHSS" Dr. Gregg Sylvester , in his official capacity as Secretary of the DDHSS , and the DDHSS as defendants. (D. I.). In his complaint , Springer requested , among other relief, compensatory damages , punitive damages attorneys ' fees and costs , and reinstatement. (D. I.).
June 19 ,
200 I

MEMORANDUM OPINION

, the parties stipulated to dismiss the

SLEET , J.

DDHSS and " all claims for monetary damages against the two individual defendants in their offcial capacities

if any such claims were implicit in the Complaint. II
I. INTRODUCTION
* 1 Presently before the court are the parties motions
ITN .11 (D. I.4).

trial relief. Following a four- day jury trial , in which the jury concluded that the defendant , Renata Henry (" Henry ), the director of Delaware s Divisionof
for post-

FN I .

from the action.

Effectively, this dismissed Dr. Sylvester Since he is no longer Secretary, he has no authority to reinstate Dr.

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Springer to his former position. As such , the remaining injunctive claim for reinstatement against Sylvester is moot. Thus , in spite ofth parties use of both the singular and plural tenses when referring to the defendant(s), it
seems clear that only one defendant remains in this action-- Renata J. Henry.

position at the DPC. (D. I.98). The parties submitted post- trial motions , which the court presently considers.
B. Factual Background

I. Springer s Contract

Springer began working for the DPC as a part-time independent contractor physician in 1991. fFN31
The defendant Henry moved for summary judgment on
November 9 , 2001 , arguing that Springer s speech was
(B0339). fFN41 He worked under annual contracts that were automatically renewed for nine years until June of 2000. (B0343). From 1991 to 2000 , Springer s contracts

not protected; that , in the alternative , it was disruptive;
that his termination was inevitable given his failure to submit a bid; that , regardless , Springer has not suffered

any damages; and , finally, that Henry was entitled to
qualified immunity.

fFN21

(D. I.47). Springer

cross-moved for partial summary judgment on November 19 2001 , arguing that his speech was

specified that the contract term was for one year and could be term inated without cause upon fifteen days notice. The contract terms did not guarantee renewal. Nevertheless , until 2000 , Springer s contract was renewed each year.

protected under the First Amendment , and that Henry

was not entitled to qualified immunity. On March II 2002 , the court denied Henry s motion for summary judgment and granted Springer s cross-motion for

In 1991 , DPC was known as Delaware State Hospital. Nevertheless , Delaware State Hospital and DPC are the same entity.

FN3.

partial summary judgment, (D.I.47). The court
concluded that Springer s speech was protected and that Henry was not entitled to qualified immunity. (D.I.47). Specifically, the court identified the memorandum dated November 23 , 1999 , and a report fied with the
Governing Body on March 21 , 2000 , as protected speech. (D. I.47 , pp. 3- 4). The issues that remained to
be decided by a jury at

FN4. B followed by a number refer
motions appendix.

to the

pages in the plaintiffs four volume post- trial

trial were whether Henry terminated Springer because of his exercise ofprotected speech , and , whether as a result of his termination Springer suffered any damages. On March 18 , 2002 Henry and Syl vester appea led the Order. However , the ir appeal was dismissed on November 29 , 2002.
FN2. Dr. Sylvester was part of the Motion for Summary Judgment , however , given the above
stipulated dismissal

In 1991 Springer s billing rate was eighty dollars per hour. At some point it raised to ninety and at the time of his termination , his rate was ninety-three dollars per hour. (B0371). His contracts stated that he would work

30 hours per week for 50 weeks , for a total of 1500 hours per year. (B0341). At ninety three dollars per
hour , Springer s annual pay from the DPC was $139 500. (B0340). When he began , his duties included

being the Assistant Residency Training Director. In 1993 he was promoted to the position of Residency
Training Director. (B0348). In addition , Springer

his involvement

irrelevant to the recitation of facts.

served as a member of the Credentials Committee
fFN 51 from 1993 to 2000. (B0386). He was also the Chairman of the Medical Staff Executive Committee Executive Committee ) from 1999 to 2000. (B0387).

*2 The case proceeded to trial on March 29 , 2004 , and

took place over the course of four days. The jury
returned a verdict in favor of Springer. He was awarded $998 895 in damages , but was not reinstated to his
FN5.

The Credentials

Committee is a

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committee composed of physicians who

unsafe cond itions for the staff as well as the patients.

conduct peer review of physician performance and the qualifications of physicians who apply for jobs or contracts. (80386).

Id. The residents expressed a concern that the residency Id. The memo program was suffering as a result.

received media attention and was the subject of a series
of editorials. (B 1158).

2. Events Leading up to Springer s Termination
FN8. PX = Plaintiff Exhibit

In 1996 , the Delaware General Assembly amended the Delaware Procurement Act , 29 Del. C. ch. 69 , to

provide that all contracts
exceeding $50

for professional services

000 per year must be subject to public

bidding. (B083 0). The provision went unenforced at the DPC until early 2000 , when Dr. Sylvester , Secretary of the DDHSS , instructed his division directors to comply with the Act and require public bidding on professional
service contracts.

*3 On November 23 , 1999 , a number of the DPC Medical Staff Executive Committee offcers echoed the residents ' attempt to expose the conditions. They drafted a memo entitled " Critical Issues in the Care of
the Mentally II in Delaware.

II (B 1158; PX7). Springer

DADAMH , a subdivision of DDHSS , oversaw the Delaware Psychiatric Center (hereinafter the " DPC" or " hospital" ). The defendant Renata Henry was hired as the Director ofDADAMH in 1999. ITN61 (B0740). Her boss , Dr. Sylvester , began his term as the Secretary ofDDHSS in October of 1997
administration of the
and served in that capacity until January of200 I.

was the President of the Committee at the time the letter was drafted. The memo was addressed to the Governor the DPC Governing Board , and Henry. (B 115 8). The memo generally reiterated many of the same concerns expressed by the residents , in particular , the decline of

the residency program. The executive
psychiatrists to
(B 115 8- 59).

Committee

invited the DPC Governing Body to schedule a series of emergency meetings with it to discuss hiring teaching
residency program. In a prior ruling, the court already

save the

fFNTI

(B0222- 0225).

determined that this memo constituted speech protected

under the First Amendment. (D .1. 47).
FN6. Although she served as director of DADAMH , Ms. Henry is not a physician.
1999 , a number of Executive including Springer , drafted another memo addressed " To Whom It May Concern. (B 1160). The memo expressed the Executive Committee s frustration with the lack of initiative on the administration s part to remedy the issues previously
Committee Offcers ,

On December 2 ,

FN7. He started as Acting Cabinet Secretary
of the

DDHSS in October 1997 , and was sworn in as the offcial Secretary in January
1998 , under Governor Carper. (B0222- 225)

raised. (B 1160). The signatories proposed a list
actions that " may begin us on the road to protecting and preserving patient care and safety. " (B 1160). On December 16 , 1999 , Springer individually addressed the DPC Governing Body Members in a memo entitled Proposed Agenda for December 22 , 1999 Governing Body Meeting. II (81162). In this memo , on behalf of the medical staff, Springer outlined a proposed plan of action. (BI162- 63).

On October 21 , 1999 ,

the DPC psychiatric residents

drafted a memo to then Governor Carper , Dr. Sylvester Dr. Springer, and other hospital staff, articulating their

concerns regarding the egregious conditions of the
DPC. (B 1154- 1157;
PX I

fFN8D . They also sent the

memo to the News Journal and the Department of
Pub lic Safety. (B 115 7). In the memo , the residents cited problems such as under-staffng, overcrowding, low morale , poor security, inadequate treatment , and overall

At some point following the initial memo by the
residents , the Delaware News Journal ran several highly critical articles about the DPC. In December 1999 , the

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federal Healthcare Financing Administration (FHA)

threatened to withdraw 6. 5 to 7 milion dollars in
federal funding to the DPC. (B0234- 3 7; B0297). Given the growing notoriety of the conditions at the hospital and the threat from the FHA to withdraw funding, Henry felt pressured to effect immediate improvements. (B0747- 48; B0268). In response to the pressure , she requested temporary credentialing for a particular physician applicant. At trial , she testified that the DPC

minimal ethical standards. II He threatened to notify regulatory agencies of the conditions in order for them to intervene and demand improvements. " (81164). As
well , he accused the

staff was causing physicians to practice below their

administration of granting

temporary privileges to a psychiatrist in violation of

medical staff bylaws. (BI165). He said the action was prompted by an administration
unannounced site visit from Medicare. (BI165). The

needed the physician applicant in order to meet the

court determined by way of summary judgment that this

federal requirements concerning the ratio

of

memo constituted speech protected under the First
Amendment. (D. I.47).

psychiatrists to patients. (B0747). At first ,

Springer

objected to credentialing the physician applicant. Henry

was frustrated with Springer because she felt he was
obstructing the credentialing process. (B0274; B030 I).
On January 7 2000 , Springer was approached by Mr. Giarow Shimono (" Shimono ), the hospital director at the time , about credentialing the physician applicant on

an emergency basis. (B0431). Springer told Shimono
about his concerns regarding the physician applicant.

The Credentialing Committee met twice with regard to this particular applicant , on April 27 and May 2 , 2000. Id. At the first meeting on April 27 , three members of the Credentialing Committee voted to grant partial privileges to the physician applicant , two members including Springer , voted not to grant privileges. (B0408- 10). On May 2 , 2000, the Executive Committee met to consider the recommendation of the
Credentialing Committee. (B0405- 06). The Executive

Springer testified that Shimono wanted to put the
physician applicant on duty anyway. Springer had no authority himself to issue emergency credentials. (B0432- 33). Springer informed Shimono that he had documents to support his concerns about the physician applicant. (B0434; B0438). He kept the documents at his home offce. (B0435). The documents , drafted in
1997 , included an email to " Dr. Smoyer or the credentials committee , II a memo addressed to the credentials committee , and II one was just a memo to (Springer s) own file. II (B043 5). Henry asked Springer to produce the documents. (B0435). In response, Springer wrote a letter to Henry dated January 7 2000

Committee elected to grant the physician applicant

partial privileges. (B0413). Springer testified that

Henry refused

to sign the

physician applicant'

credentialing unless he was given full unrestricted
privileges. (B0413).

On May 12 , 2000 , Henry sent Springer a letter informing him that his contract with DADAM H would not be renewed. (B 1175). The letter indicated that DADAMH would be publishing requests for proposals
and invited Springer to respond. (B 1175). Springer

advising her to consult with an attorney about whether Springer was permitted to disseminate the " peer review material." (B0436- 37). As it turned out , the Attorney General' s offce concluded that Henry was allowed to

view the materials. (B0438). Springer
produced them. (B 043 8).
*4 On January 26 ,

accordingly

2000 , Springer drafted a report in

testified that he did not receive the letter until May 15 2000. (B0424). The deadline to submit a proposal was May 17, 2000. (B 1176). The request for proposals had been public since April 10 2000 , and the deadline to ask questions about the bid was April19 , 2000 , by 4:30 m. (B0429; B0774). Springer was only on notice of the request as of his receipt of Henry s letter on May 15. (B0424). Springer asked Melody Lasana, DADAMH' Contract Manager , for an extension of the deadline.
(B 117 6). His

preparation for a meeting with the Governing Body
2000. (B 1164- 74). He did not , however , present the report until March 21 , 2000. (B 1152; B 1164- 74). In the report , Springer alleged that
scheduled for January 29 ,

request was denied. (B 1176).

3 . Post- Termination

the tension between the administrators and the medical

Springer asserts that the non-renewal of his contract

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was based on his comments to the Governor. Henry testified that the reason Springer was not automatically renewed was because " not only were we under the gun
at the hospital , but we also had just had a series of rulings in reference to how the department was doing contracts and indicating that we were outof compliance as we continued to renew , renew , renew , renew year

any actual injury from not being offered a new contract
the jury answered

Y es. II (B 1587). The jury found
43 I into the future. Id.

Springer suffered damages in the amount of $285, 464
up to present , and $58 8
The jury

also found that
non-economic damages.

Springer suffered $100
Id.

000 in

Finally, when asked if the defendant acted recklessly, intentionally or maliciously
with regard to Springer , the jury answered

after year after year without putting things out to bid.
And this was department-wide as well as in the division

Yes. II

(BI589; D. I. 92). Accordingly, the jury awarded

that I stepped in to run. " B0816. She stated that she

was unable to ask all of the independent contractor
physicians to rebid in a single year. She testified that
she chose Springer because to her knowledge there

were no other physicians that had been there as long as he had without ever having been asked to rebid. (B0817).
*5 Springer alleges that he suffered losses as a result of his termination and has been unab Ie to find employment comparable to the work he did as Residency Training Director. Accordingly, he filed the present action
against the defendant on October 6 , 2000. (D. I.).

000 in punitive damages. The court entered the Judgment on April 5 2004 for damages plaintiff suffered which were proximately caused by not being offered a new contract ... in the amount of ($285 464); ($588, 431) for future damages; and finding in favor of plaintiff for non-economic damages in the
Springer $25

000); and on the additional verdict form awarding plaintiff punitive damages in the amount
amount of ($100
of ($25, 000). II The parties filed which the court now considers.
post- trial

motions

II. STANDARD OF REVIEW
A. Renewed Motion for Judgment as a Matter of Law

At the conclusion of the trial , the jury returned the following verdict. When asked if Springer proved by a preponderance of the evidence whether his protected

Pursuant to

Federal Rule of Ciyi) Procedure 50 a court

may render judgment as a matter of law (JMO L) after

activity was a substantial or motivating factor in the decision not to renew his contract , the jury answered
Y es. II (B 1585). In particular , the jury found that plaintiff's exhibits two through five were the instances of protected activity that motivated the decision not to renew his contract. (B 15 8 6). Exhibits two and five were Springer s memorandum dated November 23 , 1999 , and
the report he prepared in preparation for the meeting

the moving party is fully heard on an issue at trial , if
there is no legally suffcient evidentiary basis for a

reasonable jury to find for that party on that issue.
Walter v. Holiday lnns, lllC. 985 F. 2d
1232. 1238 (3d

Cir.1993) (citation . omitted). If the court denies a motion for JMOL during trial , the motion may be

renewed within ten days of entry of judgment in the case. Fed. R. Civ. P. 50(b), To prevail on a renewed
motion for JMQL following a jury trial , a party must show that the jury s findings , presumed or express , are not supported by substantial evidence or , if they were,
that the legal conc1usion(s) implied (by) the jury

with the Governing Body on March 21 2000. Exhibits one , three , and four were , respectively, a memo from
the DPC resident physicians dated October 21 , 1999 , a

memo drafted by the Executive Committee , of which Springer was a signatory, dated December 2 , 1999 , and

a memo from Springer to the Governing Body dated
December 16 , 1999.

verdict cannot in law be supported by those findings. 155 F. 3d 1344, 1348 Panllu v. lolab CO/'.. Perkin- Elmer Corv. (Fed. Cir.1998) (quoting
(Fed. Cir.1984))

When asked i fHenry proved by a preponderance 0 fthe
evidence that " regardless of (Springer s) exercise of his First Amendment rights , that she would not or could not

732 F. 2d 888. 893 Comvutervision Corv., II ' Substantial' evidence is such

have renewed his contract in July 2000
answered
N 0.
Id.

" the jury

relevant evidence from the record taken as a whole as might be accepted by a reasonable mind as adequate to Perkin- Elmer CO/'.. support the finding under review. II
732 F. 2d.
at 893. In assessing the sufficiency of the

When asked if Springer suffered
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evidence , the court must draw all reasonable inferences from the evidence in the light most favorable to the
non-moving party. Uv.lohn Co..

critical evidence; and (3) that the plaintiff's counsel'

made racially inflammatory comments during his
rebuttal.

Id.

Richardson- Vicks Inc.

122 F. 3d 1476. 1479 (Fed. Cir. J997)

The

appropriate inquiry is whether a reasonable jury, given
the facts before it , could have arrived at the conclusion it did, Da 11/1 Ec/Uip. Co. v. Ken/llck)' Farms. lnc., 140

I. Henry s Motion for Judgment as a Matter of Law
a, Whether Henry is entitled to qualified immunity

The court may not determine the credibility ofthe witnesses nor " substitute its choice for that of the jury between conflicting elements of the evidence. Perkin- Elmer Corp.. 732 2d at893.
3d l009. JO) 4 (Fed. Cir.1998\.

As noted in the plaintiffs opposition brief, the court already ruled that Henry was not entitled to qualified immunity as a matter of law. (D. I. 47 , Memorandum and Order (" the court finds that Ms. Henry is not entitled to qualified immunity )). As such , the court
construes defendant' s motion as an un timely motion for
reconsideration of its previous

8. Motion for a New Trial
Federal Rule of Ciyil Procedure 59 for any of the reasons for which new trials have heretofore been granted in actions of law in the courts of the United States. Fed. R. Civ. P. 59(a) . A court should grant a new trial in a jury case , however , only if " the verdict was against the weight of the evidence ... (and) a miscarriage of justice would result ifthe verdict were to stand. II Wiliamson 1'. Consolidated Rail Corp.. 926 F. 2d 1344. 1352 (3d Cir.199l ) . In making this determination , the trial judge
*6 The court may grant a new trial pursuant to

summary judgment

ruling.

As a general rule , motions for reconsideration should

be granted only " sparingly. Karr v.

Castle, 768

SuPV. ) 087. ) 090 m. De1.1991 ). In this district , these types of motions are granted on Iy if it appears that the

court has patently misunderstood a party, has made a decision outside the adversarial issues presented by the parties , or has made an error not of reasoning, but of
apprehension.

See, e.

should consider the overall setting of the trial ,

the

25 F. Supo. 2d
lnc. v. Blocker. (citing Inc..

293. 295 m. DeLI998);

Sherine Corvo v. .AmQen. lncoo Brambles USA

character of the evidence , and the complexity or

simplic ity of the legal principles which the jury had to apply to the facts. Lind v. Schell/ev Industries. lnc.. 278 2d 79. 89 (3c\ Cir.) cert. denied, 364 U. S. 835

735 F. SuDP. 1239. 1240 m. De1.990) Above the Belt. lnc. v. MelBonhannall RoofinQ. 99 F. D. 99 m. Va. 1983)) see also Kan. 768

Supo. at l090 (citing same). Moreover , eyen if the court has committed one of these errors , there is no need to gran t a motion for reconsideration if it would

IV. DISCUSSION
A. HENRY' S MOTIONS
The defendant argues that she is entitled to judgment as Rule 50 on the issue of qualified immunity, on damages , and on the plaintiffs substantive
Rule

a matter of law under

not alter the court' s initial decision. See Pirell Ca ble 988 F. Supp. 424. 455 Com. v. Ciena CO/'.. De1.1998) . Finally, motions for reconsideration should not be used to rehash arguments already briefed. T1 Group Automotive Svs/ems, (North America). Inc. v. VDO North America L.LC, 2002
(citation omitted);

claim of retaliation. In the alternative , the defendant
argues that she should be granted a new trial under

S. Dist. LEXIS 1018. 2002 WI. 87472 m. De1.20(2) see also Ollaker Allov Castlnr! v.

because she was denied a fair trial. She bases this claim on the following alleged errors: (1) that the court failed to make essential rulings oflaw on the protected nature of Dr. Springer s communications and on the existence of qualified immunity, and to charge the jury in accordance therewith; (2) that the court excluded

123 P. 282. 288 Gu/f( Industries. Inc.. (N. IlI988) This Court' s opinions are not intended as mere first drafts subject to reyision and
reconsideration at a litigant' s pleasure. " ). The defendant

D.

is merely rehashing exhausted arguments. No additional evidence was introduced at trial to change the court'

understanding of the issue. Henry is not en titled

to

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qualified immunity for the reasons stated in the court' Memorandum and Order dated March 11 2002. fFN91

259. 27.1 (J 997) Relevant Supreme Court precedent establishes

that " independent government contractors
cannot be terminated for exercising their First
FN9. The court stated: Henry is not entitled to qualified immunity.

Amendment rights. II Board ot'
Waballlsee v. Umbehr.

Comm.

518 U. S. 668. 686

Although state offcials may be sued in federal court , their liability may be limited by the doctrine of qualified immunity, which permits

(1996). See

also

Otv o(NeJlhlake.

Hare Truck Service. lnc. v. 518LJ. S. 712. 721 (1996)

offcials to avoid liability

for actions
duties.

(noting same). Thus , the Supreme Court has recognized on at least two occasions that an
independent contractor-osuch as Dr. Springer-has a constitutional right to free speech.

performed in the course oftheir offcial

The Supreme Court recently affirmed the two

part test for qualified immunity. First ,

the

court must determine

whether the facts

alleged , taken in the light most favorable to the plaintiff, are suffcient to show that the
defendant violated a constitutional right.

Therefore , it cannot be more clear that this right was clearly established. The defendant assert that this court should be
persuaded by District.

Hauffe v. Bralldvwine Schoof

See

131 F. SllPfJ. 2d 573 CD. De12001 ).

aucier v. Katz. 121 S. Ct. 215 L 2) 55!1. Second , if a constitutional violation
can be demonstrated on the facts alleged , the court must next consider whether the right was
clearly established at the time of the alleged
violation. See id.

that case, the court held that the right to be

free from retaliation was not clearly
established because due to the " fact- intensive
nature of the Pickering balancing test, II the offcials were not on notice that their conduct ld.

at 2156. In Saucier the court
right must be

violated the First Amendment. court will not follow Hauge

at 584. The

further clarified that the

established in a " particularized" sense

meaning that li the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing

for two reasons. First , the court is persuaded by the plaintiff's although it may have Hauge, contention that
been correctly decided on the record before

violates that right. II
decide whether

See id.

Additionally, the

court noted that although the court must

proved-the plaintiff amount to constitutional violation , even where there may

by

the facts allegednnot

Hauge is unique. Although the court granted qualified immunity based on the fact- intensive balancing required by the test , neither the plaintiff nor the Pickering
that court ,

defendant have presented any authority to

permit this
Pickering

court to conclude that the

be a material issue of fact, if the law did not put the officer on notice that his conduct was unlawful , summary judgment may
permissible. See id.

balancing test must always lead to a denial of qualified immunity. Ifthe court were

to accept the defendant' position , qualified

at 2156- 57.
only whether

immunity could never be denied in First

The parties here contest

Amendment retaliation cases. This is
court probably extreme result , one the Hauge did not intend and one that this court will not sanction. Second , this case is factually distinguishable Hauge involved a school district from Hauge. administrator who brought allegations offraud See id. at 577- 578. against the school district. This case involyes a physician who spoke on the various problems confronting hospital

Springer s rights were clearly established at the time he was term inated, A right is clearly established where " it would be clear to a
reasonable officer that his conduct was

unlawful in the situation he confronted . See id. at 2156. M ore specifically, a right is clearly established where case law speaks with obvious clarity to the specific conduct in
question. II United States v. Lanier.

520 U.

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adm inistration, Under facts very similar to
those in this case, courts have found that the right to speak was clearly established. See
Schneiner,

The jury awarded Springer economic damages to
future economic losses. Defendant argues that Springer is not entitled to economic damages for two reasons. First , she asserts that it was incorrect to assume that Springer's contract would have been renewed until his projected retirement
compensate Springer for past and date. Second , Henry argues that Dr. Andrisani'

152 F. Supp. 2d at 493 (" There is no

doubt that the plaintiff (physician s) rights

under both the First Amendment and the
Fou rteenth Amendm ent (to comm ent on health care at the hospital) were clearly established at the time the plaintiff was disciplined, " ). Thus considering the facts before this court , this
court also finds that Springer s right was

testimony alone was insuffcient to support the award. (D. I.I26 , pp. 19- 20). She contends that the " sole evidence in support of plaintiffs claim for economic damages was the opinion testimony of John Andrisani
Ph. D. II (D. I.26 , p. 19).

clearly established at the time he spoke.

Finally, the defendant contend that

the

plaintiff's right was not clearly established because under the new bidding process , his contract was not certain to be renewed. independent Springer notes , however
contractors are entitled to First Amendment

Whether Springer s contract would have been renewed

but for his memos was a question

of fact properly

before the jury. The court cannot conclude that the
evidence was insuffcient to support a finding that the DPC would have continued its practice ofautomatically renewing Springer s contract had he not drafted and disseminated the controversial memos.
Likewise , the court cannot conclude that Dr. Andrisani' s testimony was insuffcient to support the

protection where there is a
contractual relationship, See

pre-existing
Umbehr,

518

S. at 685 (noting that holding establishing

right to First Amendment speech was limited to independent contractors with " preexisting
commercial relationship "
with government).

jury s award of economic damages. The only evidence
the defendant presented to contradict Dr. Andrisani'

Springer had been under contract with the
DPC since 1991. Thus , it is clear that he had
a pre-existing commercial relationship. The court therefore rej ects the defendant' argumen t on this issue.
For these reasons ,

testimony was their own expert , Dr. Link. The issue

came down to a battle of experts.
credible. See

It is within the

province of the jury to determine which expert is more

Lansdale v.

P hi/ade/ph ia Electric Co..

the court finds that Ms.

692 F. 2d 307 . 313 (3d Cir.1982) (li The battle of the

Henry is not entitled to qualified immunity. I. 47 , pp. 11- 13.

experts was waged in the trial court before the jury. The

jury resolved the factual dispute. What Lansdale lost fairly and squarely, at the hands of a jury cannot be retrieved by converting a factual controversy into an
issue of law. ld.

*7 Therefore , the court concludes that there is no

/I ). Upon review of the experts

reason to disturb the verdict on the basis that Henry was entitled to qualified immunity.

testimony, the court concludes there was sufficient
evidence to believe Dr. Andrisani' s calculation of loss, fFNI01

b. Whether Springer suffered any damages

Henry argues that Springer is not entitled to any
damages , be they economic damages for past economic

FN I O.

Henry raises no challenge

to the

qualifications of Springer s expert or the

loss to date of trial and/or projected future losses
general damages for harm to reputation , and/or punitive damages.

methodology that he employed in calculating the plaintiff's damages. Moreover , the court

could discern no colorable issue in this regard.

I. Economic damages
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ii. General damages The jury awarded Springer non-economic damages in

the amount of $100 000 for harm to his reputation.
Henry contends that there is no evidence in the record to support a finding of harm to Springer s reputation. The court agrees with the defendant that a reasonable jury could not have concluded based on the evidence in the record that Springer has su ffered any loss to his
reputation. Springer cites to the fact that Henry

year. The timing of the non-renewal of his contract could be viewed as suspect given that it occurred in relatively close proximity to the drafting of his controversial memoranda. As well , Henry notified
Springer only five days ,

at best, before the proposal

deadline despite the fact that the position had been advertised for oyer a month. Springer testified he received her letter only two days before the proposal
deadline, As such , the court will not upset the punitive

award. A reasonable jury could have concluded that Henry was motivated by evil intent or reckless
indifference,

discussed her frustrations regarding Springer s conduct
with Dr. Sylvester , a preeminent physician in the

community, as the cause of

the damage to his

reputation. However , attrial , Dr. Sylvester testified that he had no reason to doubt that Springer is " committed
to quality health care for patients

In conclusion , the court reduces the damages award by $100 000. There is insuffcient evidence in the record
for a reasonable jury to conclude that Springer

skiled clinician. II

" and that he is a (B0237). Even drawing all

reputation has been damaged. The remaining damages
economic and punitive , are preserved.
c. Whether , as a matter of law , the evidence
suffcient to support a finding of

reasonab Ie inferences from the evidence in a light most

favorable to the plaintiff, a reasonable jury could not
have arrived at the conclusion that Springer s reputation suffered.

retaliation

In order to establish that his contract was not renewed
iii. Punitive damages
000 in punitive damages. Henry contends that the record is insuffcient to support a punitive award. Although the court may not have reached the same decision had this been a bench trial , it is not in a position to " substitute its choice for
*8 The jury awarded Springer $25

in retaliation for exercising his First Amendment rights,

Springer first had to demonstrate that his speech was
protected. A IIlhoritv. See Green v.

Philadell1hia HOltsillft
he

105 F . 3d 882. 885 (Jd C ir. 1997) . Next ,

establish that his protected speech was a substantial or motivating factor behind the alleged
had to
retaliation. See id.

Finally, if Springer established these

that of the jury between conflicting elements of the evidence. Perkin- Elmer Com.. 732 F. 2d at 89.3
Therefore , the punitive award will stand.

two elements ,

the burden would then shift to the

Punitive damages are appropriate when " the defendant' s conduct is shown to be motivated by evil motive or intent , or when it involves reckless or callous
indi fference to the federally protected rights of others.
Smith v. Wade,

defendant to demonstrate that the same action would Id. ; see have been taken if the speech had not occurred. also Carter v. Del. State Univ. 2002 U. S. Dist. LEXIS 4721 , at *5 (D. Del. Mar. 21 , 2002).

Here , the court decided as a matter of law that Springer s memorandum dated November 23 1999 , and

461 U. S. 30. 56 (1983) .

The record

the report he prepared in preparation for the meeting
with the Governing Body on March 21 , 2000

contains evidence to support a finding that Henry acted with , if not eyil intent , then reckless indifference to Springer s federally protected rights. The trial record contains evidence that Henry was upset about Springer memos. She felt that they preached " blatant mistruths. (B0746). Despite the pressure she was under to enforce the bidding process , Springer was the only independent contractor psychiatrist asked to submit a proposal that

constituted protected speech. (D. I.47). The jury
determined that those materials , as well as the memo

from the Executive Committee dated December

2

1999 , and the memo from Springer to the Governing

Body outlining a proposed agenda for a future meeting
dated December 16, 1999 , constituted instances of

protected activity that were a substantial or motivating

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factor in the decision to not renew Springer s contract. (B 1585; D, I. 90). The jury also found that Henry failed
to prove that regardless of Springer s protected speech
she would not or could not have renewed Springer
con tract.

whether the court erred in refusing to permit Henry to

testify about her belief as to the falsity of Springer statements and in excluding other critical evidence
(I) The protected nature of Springer s communications

*9 Henry argues that " (p)laintiffs entire case regarding the substantive claim of First Amendment retaliation is based on the temporal relationship between his protected writings oo. and Renata Henry s May 12 2000 courtesy letter. " (D.I. 126 , p. 22). She contends that the temporal relationship is not close enough according to the Supreme Court. Id. (citing Clark Countv Seh. Disr. V. Breeden, 532 U. S. 268 (200!))

The court rejects this argument because , viewing the
record as a whole , there was evidence other than the
proximity in time of Springer s speech and Henry

non-renewal letter to suggest that the protected writings were the substantial and/or motivating factor in Henry decision not to renew Springer s contract. The record

With regard to plaintiffs exhibits two and five , at the pre- trial stage of the case , the court determined as a matter of law that these memoranda constituted protected speech, The court will not revisit this issue. As discussed above in relation to the Henry s motion for renewed judgment as a matter of law on whether she is entitled to qualified immunity, no additional evidence was presented at trial that would alter the court' s prior ruling. In addition to those two exhibits , the defendant objects to the characterization of plaintiff's exhibits numbers one , three , and four as protected speech as reflected in the jury verdict form. Henry also argues that the court' s failure to instruct the jury on which portions

of the documents were protected is cause for a new
trial.
Exhibits one , three , and four were , respectively, a

indicates that Henry felt that Springer s conduct was insubordinate and disruptive. She felt he was obstructive to the credentialing process. This evidence viewed in conjunction with the temporal element , is
substantial enough for a reasonable jury' to conclude that Springer s protected speech was a motivating factor

memo from the DPC resident physicians dated October

in Henry s decision not to renew his contract. As well a reasonable jury could have concluded that Henry

failed to prove that she would not or could not have renewed Springer s contract regardless of his exercise
of protected speech.

, 1999 , a memo drafted by the Executive Committee of which Springer was a signatory, dated December 2 1999 , and a memo from Springer to the Governing Body dated December 16 , 1999. Even if the court were to determine that these exhibits did not constitute protected speech , the error is harmless.
* 1 0 The Third
Circuit has outlined a two- part

test to

Relief
2. Henry s Motion for a

New Trial or ,

in the

s speech is protected. First , the speech must pertain to a matter of
determine whether a public employee
See pub Jic concern. A:zaro v. CounrF olA /lel!hellv,

Alternative , Motion to Amend the Judgment or Other

110

As stated above , a new trial may be granted where li the yerdict is contrary to the great weight of the evidence. Roebuck v. Drexel Univ., 852 F. 2d 715, 735 (3d Cir.1988) . For the reasons that follow , the court concludes that Henry is not entitled to a new trial.

3d 968. 976 Dd Cir.l99T) . Second , the court must interest in effective balance the government' administration against the employee s free speech rights. Pickering See id. This is commonly referred to as the
balancing test. lllZh School. See Pickerillf! F. 568 (J Board or Ed. or

1'/).

a. Whether the court failed to make required findings
on the protected nature of Springer s communications

and on the existence of qualified immunity, and thus failed to properly charge the jury on these issues; and

problem in any case is to arrive at a balance between the interests of the teacher , as a citizen , in commenting upon matters of public concern and the interest of the State , as an employer , in promoting the efficiency of the public services it performs through its employees. "
391 U. S.

563,

968)

(li The

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Whether speech addresses a matter of public concern
is an issue for the court to decide. See

Waters v.

Churchil, 51l U . S. 661, 668 (1994 . To ascertain whether speech addresses a matter of public concern

(B 1162). In this memo , on behalf of the medical staff Springer outlined a proposed plan of action. (BI162- 63).

the court must consider whether the speech can be

fairly considered as relating to any matter of political social , or other concern to the community. Pro v. Donalllcei. 81 F. 3d 1283. 1288 (3d Cir.1996)( citations omitted). In making this determination , the court can consider the " content , form , and context of a given 461 U. S. 138. 147statement. Connick v. lvlvers. () 983),

*11 The content of Springer s speech in plaintiff's exhibits three and four clearly addressed a matter of
public concern. Speech may be characterized
as a

matter of political or social concern if the
reveals " actual or potential wrongdoing.
See

speech

Holdel' v.

Otv of A lientown, 987 F. 2d 188. 195 (.d Cir. 1993 ) Health care issues are matters of public concern when
addressed by medical professionals. New York City Health and Hospitals,

See Schneiner v. 157 F. Supp,

It is a fair statement that the jury verdict form
suggested to the jury that all of plaintiffs exhibits one through five were instances of protected activity under

487, 495- 96 (S. N. Y. 200 I) (finding speech protected where physician wrote to Mayor Giuliani' s offce
regarding problems at municipal hospital); Three Rivel's Area llosvital Auth..

Kallal' v.
52 F. SUDP. 2d 789.

the First Amendment. See Jury Verdict Form (asking li Do you find that plaintiff has proven

by a

preponderance of the evidence that his protected
Plaintifs Exhibits 1

799 (W Mich. 1999) In several cases , courts have held that statements by health care providers regarding
patient care involved matters of public concern.
(collecting cases),

reflected in 5 was a substantial or motivating factor in the decision to not renew or offer (plaintiff) a new contract?" (emphasis added). The jury concluded that the memo drafted by the residents dated October 21 , 1999 , was not an instance of protected activity that was a substantial or motivating factor in the decision to not renew Springer s contract , therefore , its appearance in the jury verdict form is immaterial to the present motion. (BI586 , D.I. 90). To the contrary, the
2, 4, and

activity under the First Amendment

Springer was a health care provider who commented on the state of health care at the DPC facility. All of his

statements concerned perceived deficiencies at the
facility. Moreover , many of problems Springer , along with other members of the Executive Board , addressed
involved danger to the

lives of patients

or the

jury concluded that exhibits two through five were
protected speech that was a substantial and motivating factor.

surrounding community (i, e. suicides and escapes). Thus , he raised concerns of a grave nature that would be relevant to the medical community, the community

surrounding the DPC facility, the families of DPC
patients , and the Delaware taxpayers who financed the

Exhibits two and five are discussed above, Exhibits three and four involve the following. On December 2
1999 , a number of Executive Committee Offcers including Springer , drafted a memo addressed li Whom It May Concern. (BI160). The memo expressed the Executive Committee s frustration with
the lack of initiative on the administration s part to

operation. The court therefore concludes that the
content of plaintiffs exhibits three and four addressed

issues that would be of concern to many groups of
Delaware residents.

remedy the issues previously raised. (81160). The signatories proposed a list of actions that " may begin us

on the road to protecting and preserving patient care
and safety. " (B 1160). On December 16 , 1999 , Springer

individually addressed the DPC Governing Body
Members in a memo entitled " Proposed Agenda for December 22 , 1999 Governing Body Meeting.

Henry has asserted in prior communications with the court that Springer s comments were disruptive to the DPC' s operation and that Springer intended them to be disruptive. Indeed , plaintiffs exhibits three and four contain proposed solutions to the existing problems at the DPC. Therefore , the court is hard- pressed to believe that Springer intended to aggravate the conditions at the
hosp ita!. It is apparent that he was motivated by a desire

to improve conditions at the DPC and was frustrated

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that , in his view , he was encountering resistance. Upon review of the record, there is no evidence that would perm it the court to reasonably conclude that Springer comments had ' any disruptive effect.
Consistent with the court' s prior rulings , exhibits three

implementation and whether she could have reasonably believed under the circumstances that Springer was not

exercising a clearly established right. Again ,

these

issues were briefed and decided at the pre- trial stage of the proceedings, They will not be revisited at this time,
Henry also seeks to overturn the court' exclusion of proposed defense exhibits four , three , and six. Whereas exhibit four was a compilation of sixteen letters terminating employment relationships with people unrelated to Springer or this case, the court concluded they were irrelevant. Whereas , proposed exhibits three
and six were deemed to be settlement proposals demand letters , and/or products of compromise

and four were appropriately presented to the jury as
instances of protected activity. Therefore , the court will not grant the defendant a new trial on this ground.

(ii) Qualified immunity

Again , in their motion for a new trial , Henry challenges the courts determination that she was not entitled to

qualified immunity. Henry contends that given

her

allegations that Springer s memo s contained falsehoods
the court should reconsider whether she reasonably

negotiations , the court excluded them Federal Rule of Evidence 408 . (D. I.81).

pursuant to

failed to recognize the protected nature of Springer speech. Alternatively, Henry argues , the court should have permitted her to testify about her belief that the memos contained untruths and instructed the jury on
this point.
* 12

The court has already addressed these arguments and affrms its evidentiary rulings related to these issues.
Accordingly, Henry s motion for a new trial on the basis of her challenge to the court' s evidentiary rulings as
discussed above is denied,

In fact

, the court did permit Henry to testify that

she felt that some of Springer s statements were lies. However , the court did not permit the defense to

b. Whether Springer s counsel' s remarks during closing argument were racially inflammatory and require a new trial

present evidence as to the substance of the particular statements. Such testimony was irrelevant to the issues on trial. Regardless , although Henry testified that she

Preliminarily, it should be noted that Henry is African- American female and Springer is a white male.

felt that parts of the memos were not true , she also stated that " th ere are some parts oo. I was not upset

This fact would have been eyident to all those who
viewed the parties during the trial proceedings

about because it was clear that they were
B0745. As such ,

known.

the jury was free to conclude that the
in part accurate , undisputed

including the jury, It should also be noted that race was never raised as an issue in this case by either party.

memos were at least
given Henry

accounts of the conditions at the DPC. Furthermore

s testimony, even if the court were to

reconsider its prior ruling on qualified immunity with the defendant' s present arguments in mind , the outcome

During closing arguments, plaintiff's counsel made a number of remarks that defendant' allege were racially inflammatory. For example, plaintiffs counsel
repeatedly analogized the defendant' defense to an

would not change. Certainly, Henry should
was violating his clearly
speech.

have

understood that by taking the actions which have been previously discussed , in light of Springer s memos , she
established right to free

octopus emitting " black ink. " Furthermore , plaintiffs counsel referred to his client as a forty-five year old

white male. In his brief, plaintiffs counsel submits that the " black ink" analogy is a common theme. He cites to several cases in which it has been used.
*13 The court agrees with the defendant that plaintiff's
counsel's choice of analogies and language was notab Ie

Henry also argues that certain rulings by the court impeded her ability to present evidence on whether Springer speech obstructed DPC policy

given the respective races of the parties. However , the

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court cannot conclude that counsel's remarks affected the jury s impartiality and , thereby, provoked a verdict
in Springer

s favor. The court is satisfied

that the

termination , the record is completely devoid of evidence that he would have continued in that capacity had his contract been renewed. In fact , the evidence
infers the opposite conclusion. The evidence cal1s into

octopus and black ink analogy is common enough and did not likely confuse the issues for the jury. The court also concludes that counsel' s remark that his client is a forty- five- year-old white male was innocuous when considered in the context in which it was uttered.
Counsel was discussing the experts ' testimony regarding

doubt the continuing vitality of the residency training
program altogether. The evidence also indicates that since the former Medical Director left , the residency program has been completely revamped. (B0760- 763). Thus , it is quite probable that Springer s participation in

the probability that Springer would maintain sixty- hour work weeks in the future. (B0980). Counsel may have been making a statistical reference e., the statistical probability that a forty- five year old white male would continue to work a sixty- hour week until the age of retirement. Although , given the context of the remark and the manner of its delivery, it is not unreasonable for
the defendant to question whether counsel was

the program would have been entirely redefined if he

were even to have remained involved. Plaintiffs
counsel acknowledged as much in a sidebar conference,

When questioned by the court as to why he was proceeding with what appeared to be an irrelevant line of questioning, he responded: *14 MR. T. NEUBERGER: am seeking

reinstatement. I know I am

going to have this

attempting to appeal to some perceived or hoped for

problem. I thought (the present Residency Training

bigotry on the jury, and although the court agrees that counsel' s choice oflanguagewas unfortunate , in light of the overall setting of the trial and the character of the evidence the court cannot conclude that the verdict was against the weight of the evidence. It would not be a
miscarriage of justice
FViliamsoll.

Director) was Dr. Rosenbaum. He is an innocent
third party. I am trying to build up a record as far as who is in the position. And we would have to address it posttrial briefing, whether or not you would bump him. Now I have been totally surprised and told there is somebody else in the position as wel1 as they have had a reorganization. I am floundering around a little bit , in all honesty, trying to figure out how that affects the injunctive issues in my case.... Just for the sake of the record , I think what has happened here is that it' too late in the day for me to be challenging the bona

to let the verdict stand.

926 F . 2d at 1352

B. SPRINGER' S MOTIONS

I. Springer s Motion for Reinstatement to the Position
of Residency Training Director at the Delaware

fides of a reorganization. And I will just probably
leave the record as is in my case , and may just in the end fail on reinstatement and it' s just an issue of what money damages are. We wil1 just have to see. (B0763- 764).
In essence ,

Psychiatric Center
Springer moves for an

injunction ordering his
Residency Training

reinstatement to the position of

Director at the DPC. Reinstatement is not a feasible remedy in a case in which the desired position is no
longer available at the time of judgment.

Springer is asking the court to draft a
the court denies

Max

provision into his hypothetical future contracts that

Sinclair lll
denied,

766 F. 2d 788. 796 (3dCir.1985) cert.

never before existed. As such ,
Springer s motion for reinstatement.

474 U. S. 1057 (1986) . For the following

reasons , the court denies Springer s motion.
2. Springer s Motion for Attorneys ' Fees , Interest, and

Springer was hired by the DPC as an independent contractor physician. None of his contracts delegated to him the position of Residency Training Director. While employed at the DPC , one of his duties involved serving as the Residency Training Director. Although Springer served in that capacity from 1993 up until his

Costs
Springer asks for attorneys fees in the

amount of

$224 972. 50 plus $27, 748 for time expended on post- trial motions. He asks for costs and expenses in the amount of $6, 988. 59. He also seeks an award of

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attorneys ' fees for the services of a contract attorney in the amount of $25 000. Finally, he seeks an award of post-judgment interest on those amounts from the date of the jury verdict on April I , 2004 , and an award of
pre-judgment interest on the liquidated and unliquidated damages award between July 1 2000 and April I , 2004.

motions, Springer would not be the prevailing party. The court has granted partial relief to the defendant by determining that as a matter of law Springer is not entitled to non-economic damages for his alleged reputation injuries. However , Springer still succeeded on significant issues in his case and has achieved much
of the benefit he sought in bringing the suit.

a. Attorneys ' fees

461 U. S. at 433.

Hensler. Therefore , he is the prevailing party.

Springer moves for attorneys ' fees , interest , and costs
pursuant to

(ii) The requested attorneys ' fees are reasonable
Springer must also establish that the attorneys fees are
reasonable. Here , his counsel submits that under the

42 U.

C & 1988 and Rule 54. (D. I.03).
to

Section 1988 permits the court , in its discretion ,

award reasonable attorneys fees. Although the statute gives a district court discretion to award attorneys ' fees
the Third Circuit has stated that a court should

lodestar calculation he should be awarded attorneys
fees in the amount of$224 972. 50. In addition , he seeks $27 748 for time spent on post- trial motions. The defendant generally objects to the requested amount on the grounds that the fees sought are excessive. She also raises a general objection to " a third party payment of attorneys fees in the amount of $100 000" but fails to

attorneys fees to a prevailing party absent
circumstances.

award special

Truesdell v. Philadelvhia B. ous. Auth.. 290 F. 3d 159. 163 (3d Cir.20(2) . Henry challenges the
request for attorneys '

fees on two grounds. First , she argues that Springer was not a pre v ailing party. Second

Henry contends that the amount sought is excessive.

expand upon that objection. Finally, Henry questions
the plaintiffs calculation of the fees of the contract

Springer may recover fees under this section if (I) he is the " prevailing party, " and (2) the attorneys ' fees are
reasonable. Farrar v. Bobbv,

attorney, John M. LaRosa.
Although Springer bears the burden of proving that the
requested fees are reasonab Ie , the defendant must

506 U. S.

.I03 (1992) . A

party is a prevailing party if he or she succeeds li on any

significant issue in litigation which achieves some of the benefit (the party) sought in bringing the suit.

present specific evidence challenging the
reasonableness of the requested rates or the time

Hensler v. Eckerhart,

461 U. S. 424. 433 (1983 Reasonable fees are measured by the " Iodestar calculation which multiplies the number of hours
Bellslev.

expended.
Dover.

Cell/ral Delaware Branch of' NAACP v.

Blum 123 F. D. 85. 88 (D. DeI.988) (citing 461 U. S. at 892). " (They) cannot rely upon conclusory
denials of the applicant' s prima facie proofs. II

reasonably expended on the litigation by a reasonable

Id.

A court may adjust the lodestar figure when appropriate under the
hourly rate, circumstances. Blum v. Stenson.

461 U. S. at 433 .

Henry declined to object to the lodestar calculation
other than to state that it is excessive. She contends that

465 U. S. 886. 897

(J 984)

(I) Springer is the prevailing party
*15 Specifically, the Henry argues that Springer is not a prevailing party because the Court of Appeals declined to affirm this court' s March 11 2002 , decision that she was not entitled to qualified immunity. Henry

it was unreasonable for Springer s counsel to charge rates comparable to those of the Philadelphia market given that the case was not litigated in Philadelphia and
that his counsel is not admitted to practice in counsel has Pennsylvania. However , Springer
declarations of other

submitted his own declarations as well as the attorneys attesting to the

reasonab leness of the rates.

mis-characterizes the procedural event. Rather ,
Third Circuit dismissed the

the

defendant' interlocutory

appeal. Henry also argues that to the extent the court grants the defendant relief pursuant to her post- trial

The court concludes that the plaintiffhas satisfied the prima facie burden of proving the requested attorneys
fees are reasonable, The defendant has declined to

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present any evidence that would contradict such a
to alleged miscalculation of the attorneys fees related to the work done by attorney John M. LaRosa , the court recognizes that there is an inconsistency between the invoices and

determination. With regard

the

jury s decision. " As the plaintiff points out , only the non-economic damages in the amount of $1 00, 000 are unliquidated. In view of the court' s decision to grant in

the figure stated in the plaintiff's opening brief in support of his motion for attorneys ' fees, (D. I. 113 14; D, I. 113 , Exhibit F). The plaintiff explains that the figure proposed in the opening brief represents Mr,
Lann i LaRos a s curren t ra te. Springer argues tha t under New Jersev, 259 F. 3d )46. 149 (3d Cir. 200I), the

motion for renewed JMOL , the plaintiff will not be awarded non-economic damages. Therefore, the defendant' s argument regarding the unliquidated nature of the damages is moot.

part the defendant' s

Henry further argues that " (i)t would be unjust to
assign prejudgment interest oo. where plaintiffs expert witness Paul Andrisani' s testimony to the jury included interest into the numbers presented. II (D.I. 121 , p. 8). As the plaintiff points out in his reply brief, Dr. Andrisani
did ,
excluded

reasonable fee is the rate at the time of the petition rather that the rate at the time the services were
performed. The defendant declined to address this issue
in light of Lanni,

in fact , provide a damages

calculation that

nor has she presented any opposing

case law. The plaintiff's motion for attorneys fees wil be granted as requested.

interest and those figures were argued to the jury. (B0676- 677; B0914 ). Thus, the court wil grantthe plaintiff's motion for prejudgment interest.
The plaintiff asks for a prejudgment interest ra te " equal constant maturity treasury yield , as published by the Board 0 f Governors 1961 of the Federal Reserve system. See 28 U. C. (D. I.13 , p. 26). Springer claims he is entitled to an

*16 It should also be noted that the court accepts plaintiff's counsel' s supplemental fee request. It was
125). Henry has not submitted any objection to the request. The court infers
that Henry
filed on June 16 , 2004. (D. I.

to the weekly average one year

s silence on the matter indicates

her

acquiescence with the figure.
b. Costs

award of prejudgment interest from the date of the
expiration of his contract on July I , 2000 , through the
entry of judgment on April 1 , 2004 , compounded

semi-annually. Henry has raised no obj ection

to the

Springer asks for costs and expenses in the amount of 988. 59. Springer provided a detailed account of costs. Again , the defendant raises merely a conclusory objection, She states plaintiffis seeking expenses not
recoverab Ie under statutory costs, " Henry failed to state

measure of prejudgment interest. Therefore , the court wil grant the plaintiff's request. Prejudgment interest
shall be calculated accordingly.

V, CONCLUSION
For the reasons stated above , Henry s motion for judgment as a matter of law shall be granted in part. The court concludes as a matter of law that Springer is

her obj ections with any specificity. Nor did she did
present any evidence to contradict the requested

amount. The court wil grant the plaintiff's motion for
costs.

c. Prejudgment Interest
Springer seeks prejudgment interest on liquidated and unliquidated compensatory damages. It is within the court' discretion to award prejudgment interest.
Savarese Af!riss,

000 in non-economic damages. The remaining damages award shall stand. All other defense post- trial motions wil be denied. Likewise , Springer motion for reinstatement will be denied. The court wil grant Springer s motion for attorneys fees , interest and costs,
not entitled to $1 00

883 F. 2d ) ) 94, 1207 (3d Cir. 1989).

ORDER

Henry argues that Springer is not entitled to prejudgment interest because his " d