Opinion
NO. CIV. 2:10-629 WBS EFB
01-27-2012
EDISON MAYO, Plaintiff, v. RECYCLE TO CONSERVE, INC., Defendant.
For the Plaintiff: LAW OFFICE OF ALDON BOLANOS BY: ALDON BOLANOS Also Present: EDISON MAYO For the Defendant: WILKE, FLEURY, HOFFELT, GOULD & BIRNEY BY: KELLI M. KENNADAY Also Present: SEAN ODAHL
ORDER RE: MOTION FOR NEW TRIAL
After a five-day trial, the jury returned a verdict in favor of defendant Recycle to Conserve, Inc., on plaintiff Edison Mayo's sole claim for employment discrimination under Title VII, 42 U.S.C. § 2000e-2. In its verdict, the jury found that plaintiff had not proven that his race was a motivating factor for defendant's decision to terminate him. (Docket No. 66.)
Pursuant to Federal Rule of Civil Procedure 59, plaintiff now moves for a new trial. Plaintiff claims that the court "severely prejudiced plaintiff by halting its closing argument on three occasions; and to refuse, in mid-presentation, to allow plaintiff's counsel to use trial transcriptions in his presentation, and to then subsequently and unfairly allow defense counsel to use videotape deposition testimony of plaintiff in her own presentation." (Docket No. 68 at 1:23-2:2.) Aside from his complaint about the court's decisions and interruptions during his closing statement, plaintiff does not argue that any other grounds merit a new trial.
Rule 59(a)(1)(A) "does not specify the grounds on which a motion for a new trial may be granted, but allows new trials to be granted for historically recognized grounds." Shimko v. Guenther, 505 F.3d 987, 993 (9th Cir. 2007) (internal quotation marks omitted). "A judge's participation justifies a new trial only if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality." Id.; see also Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995) ("The standard for reversing a verdict because of general judicial misconduct during trial is rather stringent" and requires "an extremely high level of interference by the trial judge which creates a pervasive climate of partiality and unfairness." (internal quotation marks and citation omitted)).
1. The court did not unfairly interrupt counsel's closing argument
This court recognizes that the closing arguments are an important part of any jury trial. It is the last opportunity the lawyers have to speak before the case is finally submitted to the jury for deliberation. Other than the opening statements, and perhaps in the course of jury voir dire, it is the only time the lawyers can directly address the jury; and if the trial is conducted properly, it is the only chance the lawyers have to summarize the evidence and to suggest to the jury how they should interpret that evidence in light of the instructions to be given by the court.
The court also recognizes that each lawyer has his or her own style of arguing a case, and for that reason, as long as they keep within the bounds of the law and established procedures, they should be accorded substantial latitude in the manner in which they present their arguments. For those reasons, this court is always hesitant to restrict, limit, or interrupt counsel in their closing arguments.
On the other hand, the court has to recognize its own corresponding obligation to control the proceedings in order to assure a fair trial for both sides. As the Ninth Circuit has recognized, "a trial judge is more than an umpire, and may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition." United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988).
For the very same reasons that closing arguments are viewed by the attorneys as so important, it is all the more important that the trial judge assure that those arguments are not abused or used improperly to gain unfair advantage. See United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984) ("It is well-established that the trial judge has broad discretion in controlling closing argument.").
Here, the first time plaintiff's attorney complains that the court "interrupted" his argument was after he made the following statement:
Now, it can be difficult to remember - we've had four days off or so since the last time we met, and it can be difficult to remember a lot of the testimony that we heard in this case. And so we have the benefit of the Court Reporter who took down everything that everyone said, and we have an opportunity to look at in writing what it is that was said in this case.(Nov. 8, 2011 Tr. at 2:16-22.)
That remark took the court entirely by surprise. To the best of the court's knowledge at that time, there was no transcript of any part of the trial in existence. The court had not ordered nor received a copy of any transcript. In fact, the court had expressly informed the jury at the beginning of the trial that their would be no written transcript of the testimony. The court, quite frankly, did not know what to think of Mr. Bolanos's statement, and believed he was mistaken. The court accordingly took prompt action to correct Mr. Bolanos's statement lest the jury be misled into believing, contrary to the court's earlier instruction, that there was indeed a written transcript of the testimony for them to consult. Thus, the court interrupted to point out,
Specifically, the court stated:
You'll note that the Court Reporter is taking down everything that we say in shorthand. She can review that on her screen, I also have a screen up here where I can view her notes, but they're not in a form that we could just give to you as a transcript. There will not be a written transcript of the testimony for you to consult. That means that you must listen carefully to the testimony of the witnesses as it is given.(Id. at 4:5-12.)
We really don't, Mr. Bolanos. The jury does not have a transcript and will not have a transcript.(Id. at 2:23-24.)
It was only then, after Mr. Bolanos agreed that the jury did not have a transcript, but stated that he wanted to "show them the transcript of some of the testimony" that the court realized that Mr. Bolanos had apparently made arrangements with the Court Reporter, unbeknownst to the court, and apparently unbeknownst to opposing counsel as well, to have some of the trial testimony transcribed, and that was apparently only Mr. Bolanos who had a copy of that transcript.
(Id., at 2:25-3:2.)
The court considered admonishing counsel then and there not to display his transcript to the jury, but in light of the court's reluctance to interfere with closing arguments and Mr. Bolanos's statement that he was going to show "just partial highlights," the court refrained from making any further comments at that time. As Mr. Bolanos's argument progressed, however, the court became increasingly concerned with his repeated showing of excerpts from the transcripts, marked with his own underscoring and highlights. Had the court known beforehand that he intended to do that, it would have instructed him not to do so. Nevertheless, hoping that each time would be the last, the court refrained from preventing him from displaying portions of the transcript to the jury.
(Id., at 3:1-2.)
The second time plaintiff's attorney complains that the court "interrupted" his argument was not an interruption at all. When Mr. Bolanos placed an inadmissible document on the screen for the jury to view, defense counsel objected. (Id. at 10:19.) It was in response to that objection that the court asked Mr. Bolanos what he was showing to the jury. (Id. at 10:20.) After determining that the document was an exhibit which the court had earlier refused to admit into evidence, the court instructed Mr. Bolanos to remove it from the screen. It was at that time, when Mr. Bolanos's summation had already been interrupted by a valid objection, that the court took the opportunity to more explicitly limit his use of the transcripts. Specifically, the court instructed Mr. Bolanos to remove the transcripts from the screen and explained, "You can use them to refresh your own recollection for purposes of argument, but I've already explained to the jury there is no transcript for them to read." (Id. at 11:7-10.)
The third time plaintiff's attorney complains that the court "interrupted" his argument it was actually in his favor. Concerned that Mr. Bolanos might have misinterpreted the court's ruling on defendant's objection and its admonition not to show his transcripts to the jury to have been intended to also preclude him from continuing to show the jury the slides he had prepared to illustrate his argument, as Mr. Bolanos held an exhibit in his hand, the court politely interrupted him to point out:
THE COURT: What -- let me clarify what you can show to the jury. That's fine. You also prepared a couple of slides that you put on there to show the jury to illustrate your argument. That kind of thing is okay. If you have any more of those, you can show that to the jury. It's just that you can't show them exhibits that weren't received in evidence. Okay?(Id. at 12:23-13:6.)
MR. BOLANOS: Got it.
THE COURT: All right.
It is hard to imagine how these legitimate and limited interruptions addressing a specific issue could reflect a bias against plaintiff, let alone constitute an "extremely high level of interference" that created "a pervasive climate of partiality and unfairness." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). The Ninth Circuit has found that a new trial was not merited when trial judges' interruptions have been far more frequent and questionable than the three occasions in this case. See, e.g., United States v. Mostella, 802 F.2d 358, 361-62 (9th Cir. 1986) (trial judge's numerous interruptions through a trial, including "extensive questioning" of expert witnesses and sarcastic comments did not merit a new trial); United States v. Poland, 659 F.2d 884, 894 (9th Cir. 1981) (trial judge's impatience with defense, displays of irritation, and use of sarcasm, while inappropriate, were not prejudicial).
Even if the court's interruption of Mr. Bolanos's closing argument could somehow be interpreted as indicating the court's view of the case or disagreement with Mr. Bolanos's position, any such suggestion was cured by the court's instructions to the jury at the beginning and close of the trial. Specifically, in its opening instructions to the jury, the court stated, "You should not take anything that I may say or do during the course of the trial as an indication of what I think of the evidence or what your verdict should be. That will be a matter entirely for you to determine." (Nov. 1, 2011 Tr. at 3:7-10.) In giving the final instructions to the jury, the court reminded the jury, "You must not read into these instructions or into anything that I may have said or done any suggestion as to what verdict you should return--that is a matter entirely up to you." (Docket No. 63 at 2:17-19.) This court, like the Ninth Circuit, "assume[s] that juries follow admonitions and curative instructions," United States v. Nolan, 700 F.2d 479, 485 (9th Cir. 1983), and the court has no reason to believe that the jury disregarded the court's instructions in this case.
2. The court did not err in not allowing plaintiff's
counsel to publish the transcript to the jury during closing argument
In jury trials, it is this court's uniform practice not to permit counsel to show, or purport to read from, transcripts of the trial testimony during their closing arguments. There are several important reasons for this practice. First, preparation of a trial transcript during trial is expensive. Court reporters charge the more expensive "daily" rate for those transcripts. Accordingly, the party with less money to spend on a trial may find itself at a disadvantage if the other side has the benefit of a transcript during argument.
Second, preparation of a daily transcript poses an undue consumption of court time and resources. Whenever one is requested, two court reporters, working in shifts, are generally required in order to produce the transcripts while the trial is still in session. That practice can unnecessarily drain the resources of the court.
Third, publishing excerpts of the transcript leads to the risk that the jurors will place undue emphasis on certain portions of the testimony because they saw those portions in writing. In that regard, the Ninth Circuit has repeatedly recognized that rereading a witness's testimony from a transcript or giving a jury a partial copy of a transcript creates a risk that the jury will give undue weight to that part of the evidence, thus the "rereading of a witness' testimony is disfavored when it unduly emphasizes that testimony." United States v. Binder, 769 F.2d 595, 600 (9th Cir. 1985).
Even when faced with a jury request to review a transcript, the judge must determine "whether the beneficial effects from allowing the jury to review a part of the transcript outweigh the risk that the jury will give undue weight to that part of the evidence." United States v. An Article of Drug, 661 F.2d 742, 746 (9th Cir. 1981). Thus, when the jury has requested to rehear testimony, the "preferred method . . . is in open court, under the supervision of the court, with the defendant and attorneys present," which can be accomplished by the court reporter reading from the transcript. United States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir. 1994).
See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 5.2.E.1 (2004) ("The trial court should probably never send a transcript of testimony into the jury room. If it decides to do so, great caution should be exercised."). This method is recommended because it decreases the chance that the jury may give undue weight to evidence by repeatedly reviewing a limited excerpt in the jury room. United States v. Sacco, 869 F.2d 499, 502 (9th Cir. 1989).
In this court's experience, consistent with Ninth Circuit caselaw, most other judges seem to follow the same practice. The Ninth Circuit has held that counsel's use of transcripts during oral argument "falls within the discretion of the trial judge." Guess, 745 F.2d at 1288; accord United States v. Bradley, 869 F.2d 121, 123 (2d Cir. 1989) ("It was within the discretion of the district court whether to allow copies of the trial transcript to be distributed to the jury."); United States v. Kuta, 518 F.2d 947, 954 (7th Cir. 1975) ("[W]e think it is also within the discretion of the trial court whether to permit counsel to read from the trial transcript during closing argument.").
See also Robert E. Jones, Gerald E. Rosen, William E. Wegner, & Jeffrey S. Jones, Rutter Group Practice Guide: Federal Civil Trials and Evidence Ch. 14-B(2)(g)(1) (2011) ("It is within the trial judge's discretion to permit counsel to read from the trial transcript during closing argument. . . . Likewise, counsel's use of transparencies (blowups) of portions of the trial transcript during closing argument is within the court's discretion."); Jacob Stein, Closing Arguments § 1:75 (2011-2012 ed.) ("[T]he recognized rule is that it is within the trial court's discretion whether to permit counsel to read from the trial transcript during final argument to the jury."); Federal Trial Handbook Civil § 76:3 (4th ed.) ("The trial judge has discretion to deny permission to counsel to distribute copies of portions of the trial transcript to the jury during summation."); Federal Procedure, Lawyers Edition § 77:263 (Dec. 2011) ("The trial judge has discretion to deny permission to the counsel to distribute copies of portions of the trial transcript to the jury during summation.").
Here, and consistent with the court's uniform practice, the court restricted Mr. Bolanos from publishing a copy of the transcript for the jury to view during his closing argument. The limitation initially stemmed from the court's prior instruction to the jury when the jury was first empaneled that a transcript would not be available. (See Nov. 1, 2011 Tr. at 4:5-12.) That instruction is based on the Ninth Circuit's Model Instruction No. 1.13, which states:
During deliberations, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given. If at any time you cannot hear or see the testimony, evidence, questions or arguments, let me know so that I can correct the problem.Although it may be obvious, this instruction serves the important purpose of preventing the jury from relying on the possibility of reviewing transcripts at the close of trial, thus encouraging it to pay close attention throughout the entire trial.
Mr. Bolanos should have been well aware of this court's practice of instructing the jury that there would be no transcript, because not only had he heard it in this case but he had recently heard the instruction when he tried an unrelated case before the undersigned judge only five months prior to trying plaintiff's case. Despite the court's clear instruction to the jury that a transcript would not be available for its review, Mr. Bolanos had a transcript prepared and, without talking to the court about it, sought to show it to the jury throughout his closing argument. The fact that he was even able to show several portions of the transcript to the jury before the court finally put a stop to the practice, if anything, gave Mr. Bolanos an unfair advantage.
(See June 1, 2011 Tr. at 5:13-21 ("The Court Reporter is taking down what we say in shorthand, and she has a screen on which she can view her notes. I have another screen up here which I can view them as well. That does not mean there is going to be a written transcript for you to read at the end of the trial or during the trial. There will not. She can read those notes, and I can see them, but they're not in a form that we could give to you so that you can read them. And so it is important that you listen to the testimony of the witnesses as it is given.").)
According to one practice guide, Mr. Bolanos's failure to inform the court about his desire to use the transcript during his closing argument is fatal to plaintiff's request for a new trial:
In determining whether an abuse of discretion has resulted by the denial of an attorney's request to read from the trial transcript during closing argument, it is first necessary that counsel offer to indicate to the court that which is to be read, the purpose for the request, and the need as seen by the party making the request. The underlying rationale is that just as discretion should not be arbitrarily withheld, it cannot be unexplainedly demanded.Jacob Stein, Closing Arguments § 1:75.
Although it was within its discretion, and would have been consistent with this court's general practice, after instructing Mr. Bolanos not to continue showing portions of the transcript to the jury, the court did not restrict him from utilizing the transcript during the remainder of his summation. In fact, Mr. Bolanos read verbatim from his copy of the transcript after the court restricted him from publishing it.Because Mr. Bolanos was still able to utilize the transcript to refresh his recollection and read extensively from it, his inability to publish the written copy of it did not even affect the substance of his closing argument. The court did not perceive, nor did Mr. Bolanos articulate, any need to show the jury portions of the transcript, as opposed to using it to refresh his recollection or, as Mr. Bolanos did, reading portions of it. In his motion for a new trial, Mr. Bolanos still does not explain why the jury needed to see the transcript.
(See, e.g., id. at 19:16-20:10 ("MR. BOLANOS: But then on direct -- on cross-examination, he [Sean Odahl] admitted, well, I thought he was making a misrepresentation about the speed. Question: So you believe that Mr. Mayo was making a misrepresentation -- first, at the time of this report, did you believe that Edison was making a misrepresentation about the speed he was traveling? Answer: No. Two questions later: Okay. After whether or not you could slip a truck at 20 miles an hour, I asked him, So you believe that he was making a misrepresentation about his speed? Answer: Correct.").)
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In an effort to preserve the credibility of the court's prior instruction about the unavailability of a transcript and to prevent the jury from placing undue weight on limited testimony because it saw only that testimony in writing, the court was well within its discretion to restrict Mr. Bolanos from publishing excerpts of the transcript during his closing argument. Accordingly, because the limitation neither affected the substance of Mr. Bolanos's closing argument nor was influenced by or suggested the existence of the court's bias against plaintiff or his counsel, the limitation does not entitle plaintiff to a new trial.
3. Defendant's use of the videotaped deposition
Lastly, plaintiff argues that the court should grant a new trial because, after preventing plaintiff from publishing the transcripts for the jury, the court did not prevent defendant from playing portions of plaintiff's videotaped deposition during its closing argument. Unlike the transcripts, however, the portions plaintiff's videotaped deposition which were shown during defendant's argument had been played to the jury during the cross-examination of plaintiff.
Moreover, plaintiff did not object to defendant's use of the videotaped deposition during defendant's closing argument. "There is an even 'high[er] threshold' for granting a new trial where [the party seeking a new trial] failed to object to the alleged misconduct during trial." Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 517 (9th Cir. 1991) (alternation in original). When a counsel fails to raise a contemporaneous objection, a new trial is merited only if the conduct by opposing counsel amounts to plain error. Id. "Plain error review requires: (1) an error; (2) that the error be plain or obvious; (3) that the error have been prejudicial or affect substantial rights; and (4) that review be necessary to prevent a miscarriage of justice." Id. The use of the videotaped deposition, which had already been showed to the jury without objection during the trial, by defendant did not result in error, let alone plain error.
IT IS THEREFORE ORDERED that plaintiff's motion for a new trial be, and the same hereby is, DENIED.
Defendant has ten days from the date of this Order to file an Amended Bill of Costs seeking any costs incurred in opposing plaintiff's motion for a new trial. If Defendant files an Amended Bill of Costs, plaintiff shall file any opposition within five days of the date the Amended Bill of Costs is filed.
____________________________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE
BEFORE THE HONORABLE WILLIAM B. SHUBB, JUDGE
EDISON MAYO, Plaintiff,
v.
RECYCLE TO CONSERVE, INC., Defendant.
No. Civ.S-10-629
REPORTER'S PARTIAL TRANSCRIPT
JURY TRIAL
PLAINTIFF'S CLOSING STATEMENT
TUESDAY, NOVEMBER 8, 2011
APPEARANCES
For the Plaintiff:
LAW OFFICE OF ALDON BOLANOS
BY: ALDON BOLANOS
Also Present:
EDISON MAYO
For the Defendant:
WILKE, FLEURY, HOFFELT, GOULD & BIRNEY
BY: KELLI M. KENNADAY
Also Present:
SEAN ODAHL
SACRAMENTO, CALIFORNIA
TUESDAY, NOVEMBER 8, 2011, 9:01 A.M.
(The following proceedings were had in the
presence of the jury:)
THE COURT: All right. This is the time for the
arguments of counsel. As I explained at the beginning of the trial, Ladies and Gentlemen, the arguments of counsel are not evidence. They're intended to help you interpret the evidence as the lawyers remember it.
We'll begin with the argument on behalf of the plaintiff by Mr. Bolanos, then you'll hear the argument on behalf of the defendant by Ms. Kennaday, and Mr. Bolanos will have a rebuttal argument.
You may proceed.
MR. BOLANOS: Thank you, Your Honor.
And keeping with our trouble with technology, I'm just trying to turn the -- lectern laptop. All right.
Okay. Everyone can hear me all right, I hope.
All right. Ladies and Gentlemen, I want to thank you again for serving on the jury. We've tried to make this a relatively fast case, keep it straightforward and simple. It's been about a week long. So I want to thank you on behalf of Mr. Mayo and myself for doing your duty as jurors and serving on this jury.
This is now the time when you've had a chance to hear all of the evidence in the case, and then soon you're going to be asked to decide a couple of questions of fact. You're going to be given I believe three questions to answer. It's going to be a yes or no format. You're going to be given instruction on the law of the case as well from the judge, and then it will be your time to deliberate.
Essentially what you're going to be asked is did race play a role in the termination of Mr. Edison Mayo? The question is going to be was race a factor? Was race a role? It doesn't necessarily mean that race was the only reason for Mr. Mayo being terminated or even the prevailing reason. But, if it played a role, if it was a factor, that's going to be the first question that you're going to be asked.
Now, it can be difficult to remember -- we've had four days off or so since the last time we met, and it can be difficult to remember a lot of the testimony that we heard in this case. And so we have the benefit of the Court Reporter who took down everything that everyone said, and we have an opportunity to look at in writing what it is that was said in this case.
THE COURT: We really don't, Mr. Bolanos. The jury does not have a transcript and will not have a transcript.
MR. BOLANOS: Right, but I want to show them some of the transcript from some of the testimony, just partial highlights.
It's true that you won't have this transcript with you when you deliberate. You're going to have to go from what you heard, the witnesses, what they said; whether you believe they were truthful or not; whether you believe they were testifying about events that they recalled; and, generally speaking, weigh the evidence in that regard. So you will not have this transcript with you when you're in there, but I think that there are some important points to show you here.
The first is that we know that Mr. Mayo started working for these guys before they were called Recycle to Conserve, they were called Dext, and he started with them in 1997. So he's been with them well over ten years, closer to twelve.
And we know that he had some problems with Mr. Lindsay, Elwood Lindsay at work. He testified that he would call him -- call him names, calling him out of my name was the testimony that he gave; that there was some trouble with fixing the trucks that he was driving, there was trouble with getting parts for the trucks; and essentially that he would go to his supervisor, Sean Odahl, and talk about these problems, and that not a lot was done.
There was also an issue about drivers going into the shop. Other drivers were permitted into the shop. We heard something from the defense that there was some agreement not to allow drivers into the shop. But, for the most part, the testimony was drivers were going into the shop, if you recall, but Mr. Mayo himself, Edison Mayo was forbidden from going into the shop.
So we talked about the times that Mr. Mayo went and spoke with Sean Odahl about some of the issues that he was having with Elwood Lindsay. And he talked about meeting with him formally in his office, and he talked about meeting with him three, four, five times in the office. And then we talked about Mr. Mayo meeting informally with Mr. Odahl, and that that occurred also three, four, five times. About -- it's towards the end of this document, but here we see that he talks about the formal meetings in the office, closed doors, just the supervisor, the general manager and Mr. Mayo.
Now, one of the things that was discussed was that there was problems with the trailer. We've talked so much about this trailer and the issues with the trailer, where it came from, what kind of work that was done on it and what kind of problems that Mr. Mayo had with the trailer.
And Mr. Mayo testified at length that he had numerous problems with the trailer. It was the Cottage Bakery trailer. They found it in a wrecking yard. It needed a lot of repairs. He would report problems to Elwood, but Elwood more or less wasn't listening to him or hearing anything he had to say. And he would run him out of the shop was the testimony, cussing me, calling me names.
So I think it's important to keep in mind the issues that we had with this trailer because it's going to be a key issue in this case.
And Mr. Mayo talked about some of the names that he was being called. And we had some testimony at length from Mr. Mayo, we had some testimony at length from Joe Serpa, and we had some testimony from Sean Odahl on this subject as well.
Again, more trouble with the trailer. I want to keep this clean for you.
The controls weren't in working order. The box would fall off the truck because the cables weren't stretched tight. The trailer plays a central role in this case.
The cable was coming loose, clamped together. It wouldn't pull the box all the way up. It would slip. And they had to call out on a number of occasions a tow truck company to come and pick it up because the trailer and the truck couldn't do i t.
And that's undisputed. Because a lot of times in this case we heard one side say one thing and another side say another. And so I'm not going to ask you to take any one particular side's word for anything. I'm just going to ask you to look at what their testimony said and see if we can't funnel down what we heard to come to a few basic truths about what took place in the workplace.
Next I asked Mr. Mayo what he would do about getting the trailer fixed, and that Sean Odahl would go and talk to Elwood about getting this trailer fixed; and that even on a couple of occasions the president of the company went to Elwood talking about the trailer, get it fixed. We're having trouble with the air lines, we're having trouble with the brakes, we're having trouble with the cables.
All of these things undisputed because we heard both Mr. Mayo testify about them and, as we get further into this, we heard Mr. Lindsay testify about them. And we also heard Mr. Odahl testify about some of the problems with the trailer.
So then we come to October, October 13th, which is when we had this accident. He's driving in wet conditions 20 miles an hour, 25 miles an hour. He comes to a red light, starts braking. The rear tires on the trailer lock up. And even when he takes his foot off the brakes, the tires remain locked, and the trailer slides causing damage to the cab of the truck.
Again, as you see here, the president comes down, talks about getting the trailer fixed. It was fixed, but it was not fixed. He would fix it. It would break back down.
Now, I want to get into one of the important things that we heard in this case which related to Sean Odahl. We heard that there were a number of occasions, several occasions when Mr. Mayo would complain about Sean Odahl, and then we heard Sean Odahl say, well, I didn't do any investigation or I didn't do any follow-up or take any statements. And I want to point something out to you, which is that Mr. Odahl has essentially admitted that he failed to follow the company's policy about reporting.
Now, we have the benefit of looking at that company policy. And the defense gave you an exhibit, which you're going to have with you in the room -- you're going to take all the exhibits that have been admitted into evidence. They're going to go back in with you when you deliberate.
You're going to take a look at Exhibit L. Exhibit L is the employee handbook, and the employee handbook talks about what a manager is supposed to do when he gets a complaint. There's a few relevant pages to it here.
Complaint procedure, this is page 7 of Exhibit L, bring the issues to your supervisor. If you experience a problem, report the incident to your supervisor, who will investigate the matter and take the appropriate action. Page 8, if you're unsatisfied with the immediate supervisor or you think he's involved, report directly to the head of your department. That's Sean Odahl again.
If the company determines the employee is guilty, it would take appropriate disciplinary action. Then we have talk about what is a bonafide complaint. If, after an investigation of a complaint, the determination is that it's not a legitimate complaint, there will be other action.
Over and over again we hear there needs to be an investigation. The supervisor needs to do something. Promptly report the incident to your supervisor, who will investigate the matter and take appropriate action. Again, head of the department.
This is page 51 of the employee handbook. Step one, dispute resolution, problem resolution. Discuss the problem with your supervisor as a first step. It doesn't say you have to make a complaint in writing as a first step in order for the supervisor to take it seriously. It doesn't say that you have to go to human resources. It says talk to your supervisor.
Step two, encouraged to request a meeting with your supervisor's supervisor. Again, it does not say submit a formal written complaint detailing exactly all of the allegations that you have to your supervisor or your supervisor's supervisor.
All right. Sean Odahl was required, when he gets a complaint verbally, to conduct an investigation and to generate a report. It's what the company policy says, and it's what undisputedly Mr. Mayo went to him on a couple of occasions undisputedly and did.
Now, you remember what Sean Odahl told us about what he did. He said, When I get a complaint in writing, when someone verbally complains to me, I give them a verbal response. If they give me something in writing when they're looking for an answer, they're going to get a written response. That's how I work.
But that's not how the company is supposed to work. That's not what the company policy is. The company policy is you need to conduct an investigation. You need to do something when an employee comes to you. You don't just have this -- this attitude where if it's a written complaint, it's more serious than a verbal complaint. He said this over and over again.
I asked him, Have you ever documented a verbal complaint in your time as a supervisor for Recycle to Conserve for anything? No.
If you make a complaint orally, you get something back orally, right? Right.
If they give me a verbal complaint, I'll look into it, and I'll give them a verbal response.
So it's important to point out here that the company policy said one thing about when you receive a verbal complaint. In fact, the company policy says go to your supervisor verbally. It says talk to your supervisor verbally as a step one. It says, if that doesn't work, talk to your supervisor's supervisor verbally as a step two.
In this instance, Sean Odahl was the general manager. There was no supervisor's supervisor. He was the only supervisor at the plant. But we have no investigation and no report.
So the question then becomes -- we heard Sean Odahl say, well, Edison Mayo didn't come to me, he didn't report anything to me. But we have Edison saying he went to him on a number of occasions. So where do you go with that? Well, here's where you go.
We have at least two instances where Sean Odahl has agreed that he spoke with Edison Mayo about problems he was having with Elwood Lindsay, the mechanic. I'm not going to ask you to take one person's word over the other. I'm only going to ask you to look at the evidence, where we can agree on the evidence.
First I asked him about how many times did he come? Had you ever said that Mr. Mayo came to you on several occasions and made complaints about Elwood Lindsay?
MS. KENNADAY: Your Honor, this isn't in evidence.
THE COURT: What are you showing them now?
MR. BOLANOS: This is page 2 of a declaration filed with the court by
THE COURT: Is it evidence?
MR. BOLANOS: It is not in evidence, no.
THE COURT: Oh, it's not in evidence. You can't show them something that's not in evidence.
MR. BOLANOS: This is closing argument.
THE COURT: Take that off the screen.
MR. BOLANOS: It's off the screen.
We had this incident in the testimony
THE COURT: And while we're at it, take those transcripts off the screen, they're not evidence either. You can use them to refresh your own recollection for purposes of argument, but I've already explained to the jury there is no transcript for them to read.
MR. BOLANOS: Okay. So, for clarification, should I be limited to just exhibits that have been admitted into evidence?
THE COURT: Yes.
MR. BOLANOS: The first incident that Mr. Odahl agreed that he talked to Edison Mayo about related to the throwing of parts at his feet. You recall that Edison Mayo testified that he would go into the shop, and Elwood Lindsay would throw things; and he would go to bring him a part, and then he would drop it at his feet and say there, you get that, boy.
And he went to Sean Odahl. Undisputedly Sean Odahl received that complaint at least once. No investigation, no written statements, no discipline undisputedly. He just said, you know, I talked to him, I talked to him about it, I talked to Edison about it.
Sean Odahl also admitted that there were a number of problems with the trailer, and that Edison Mayo came to him on a number of occasions and reported the problems. He reported that he was having trouble with Elwood Lindsay; that he was bringing these repair issues to Elwood, that Elwood was chasing him out of the shop, calling him names, throwing things at him, and the trailer was still having problems. No dispute about that either.
No written statement from the employee [verbatim].
Now, then you remember that Sean Odahl told us that he knew there was nothing wrong with that trailer because it had been used by another driver, Kevin Christian, on a number of occasions, and there were no complaints about the trailer.
The defense introduced something called Exhibit P, like Peter, and that's going to be with you back in the deliberation room. And you'll recall during the course of the trial that I objected to this exhibit, and I said this is -- there's no foundation for this. There's -- there's nothing to this exhibit. It looks like they made it up just for the purposes of the trial. And because I had not lodged a formal objection prior to the trial, I had waived that objection. So this is -- this is evidence now.
THE COURT: What -- let me clarify what you can show to the jury. That's fine.
You also prepared a couple of slides that you put on there to show the jury to illustrate your argument. That kind of thing is okay. If you have any more of those, you can show that to the jury. It's just that you can't show them exhibits that weren't received in evidence. Okay?
MR. BOLANOS: Got it.
THE COURT: All right.
MR. BOLANOS: So Exhibit P was received in evidence, and the defense represented to you that this shows who drove the truck in the time before Mr. Mayo's accident. They represented to you that this showed who drove the same truck and trailer that Mr. Mayo wrecked. That's Ms. Kennaday's words, not mine. She asked that question to Sean Odahl. Does this Exhibit P show the same truck and trailer? And Mr. Odahl answered that is correct, yes, like I said.
Well, if this is the same truck and trailer, if this is the same truck and trailer, how is it that there's no record of this trailer being used on October 13th, 2009? That's the date that Mr. Mayo used it. There's no dispute that that's the date that Mr. Mayo used it.
How is it that this same truck and trailer was driven twice by Edison Mayo on October 14th? We thought it was wrecked and damaged on the 13th. How was it that he drove it again twice on the 15th, and that Edison and Kevin both drove it on the 16th? That doesn't make any sense.
And I want you to question the accuracy and the truthfulness of this exhibit because this is not some report that was kept in the normal course of business of the bakery -- of the company. This is something that they prepared for this case to show to you to try and prove that there was no problem with the brakes.
Now we get into the issue of mechanical problems with the trailer. We've talked about it and talked about it and talked about it. And the question became for Sean Odahl, according to his testimony, there was no mechanical problem with this trailer, it couldn't have been a mechanical problem.
But the sole basis for him concluding that it could not have been a mechanical problem was because that's what Elwood Lindsay told him. Elwood Lindsay went out there and said -- looked at the brakes and said this trailer is fine, don't worry about this trailer.
So Sean Odahl writes in his report, his supervisor's incident/accident report, Mr. Lindsay did not find any mechanical problems with the trailer.
He was asked where did you get this information in the second paragraph about there being no problem with the mechanics of the trailer? And he said from Elwood Lindsay.
So then it's up to us to look at what Elwood Lindsay told him. If the basis for his decision that there was no mechanical problem with the trailer is what Elwood told him, what is it that Elwood told him? And we have that, too. Because this is another exhibit that's going to be back in the jury room. This is Elwood's report dated October 15th, 2009, two days after the incident.
Now, you would expect this report to talk about the brakes, the trailer, the wet conditions, the wheels, the road, the cables, something about the incident of October 13th. But it doesn't open up with that. It opens up with a history of Edison Mayo and all the problems Edison Mayo has had.
The driver complained. The driver got mad and told Sean something. Other drivers have told me that this driver is a problem and that he's done other things wrong at the shop. This is the same driver who won't do something else that I asked him to do because he couldn't learn to do his job.
Does this sound like someone who's talking about an incident that occurred two days before, or does this sound like a hatchet job to you, like someone who is deliberately going out of his way to try and get someone fired?
He concludes, I know, I refuse to talk about the truck and trailer incident. That's the whole purpose of this report. It's two days after this truck and trailer incident. He says I refuse to talk about it except that, you know, the brakes, we adjusted those as part of this BIT inspection. Another key point. When were the brakes adjusted? When were the brakes repaired? That's going to be something that we're going to move on to next.
But this is just -- this is just Elwood Lindsay spouting about all the things that he thinks are wrong with Edison Mayo. On that basis, Sean Odahl concludes there was no mechanical problem. Mr. Mayo is fired.
You remember I asked Sean Odahl about what kind of brakes -- what kind of work had been done on this trailer. And his response was there was nothing done on the preceding month. We have to do a 90-day inspection as part of this BIT inspection for regulations, and everything was fine. And nobody else complained about it, specifically Kevin Christian.
And then I asked Elwood Lindsay about what he did with the brakes. You'll recall that testimony. We established that if there was a problem with the brakes, it would have been Elwood Lindsay's responsibility to fix them. We established -- I asked him, How often did you inspect this trailer? He said about every three months. I said, Do you recall any recurring issues with the trailer? He said no.
I asked him about the history of the trailer. He said, you know, I got it from this -- from this recycling yard, and it was out of service for a few months, but then it was fine.
You know, we got this trailer for one purpose and one purpose only, one customer and one customer only -- that's the Cottage Bakery route that we have been talking about -- and it was the only one we had.
I asked him if Edison ever came directly to him and said, look, I'm having problems with this trailer, can you please help me fix it? He said, no, Edison never came to me for anything.
I said -- I asked him did Mr. Odahl ever come to you and say, look, I spoke with Edison, there's trouble with the trailer, can you please get the trailer fixed? He said no, nothing like that. Nothing at all wrong with this trailer according to Elwood Lindsay.
And then you remember I put some receipts in front of him. And the receipts had his signature on them, they had his handwriting on them, and they said this is for the new trailer. And I asked him, well, is it a new trailer? He says, well, this is the used trailer that we were talking about.
And I said, so, you know, were you still buying parts for this thing leading right up to the accident? His response, I was buying parts the whole time.
And so I asked him, So you were still doing work on the trailer, right? He said, Yes, I did work on the trailer all the time. He directly contradicted his own testimony that no work was done on the trailer for approximately 90 days.
How often did you work on this trailer? Was it all the time? Because it was the only trailer for this job, I looked at that trailer every -- I'd say every week at least.
So just to recap where we are right now, we have Sean Odahl admitting that he was aware of issues between Elwood Lindsay and Edison Mayo. He admitted that he didn't document or investigate anything or take any statements because that was how he operated. That was the way he did business. That's how I work. And he admitted that his conclusion that there was nothing wrong with that trailer was based on what Elwood Lindsay told him.
So then you're left with why did you fire Edison Mayo? Well, because there was nothing mechanically wrong with that trailer. And how did you arrive at that conclusion? Well, because Elwood Lindsay told me there was nothing mechanically wrong with that trailer.
Then consider that you've got this document that looks very official, but is really not. No one told you, yes, I generated these documents. No one told you, yes, I prepare these in the course of my business. No one told you any of that. They just said, look, it's the same truck and trailer, and this other driver uses it just as much as Edison and doesn't complain. Well, we've talked about this document. It has some serious factual problems with this document and the way it's set up.
You know, you throw also in that Sean Odahl said he didn't know that there was any work being done on the trailer. He said as far as he was concerned, 90 days, no work on the trailer. So what should that tell you? That should tell you that Sean Odahl didn't know what Elwood Lindsay was doing on that trailer. Elwood Lindsay was working on it every week. He was ordering parts for it all the time. The trailer was a broken down piece of junk is the only way to characterize it.
We heard Edison Mayo talk about the controls didn't work, the brakes didn't work, the box couldn't be lifted onto the back of the trailer, it was rusted out, it had bad tires. All these things were wrong with this trailer. Sean Odahl found there was no mechanical problem with the trailer, and yet Sean Odahl didn't know that Elwood Lindsay was tinkering on this trailer every week on a weekly basis.
Incidentally, Sean Odahl also included in his report that Mr. Mayo was traveling approximately 20 to 25 miles an hour. But then on direct -- on cross-examination, he admitted, well, I thought he was making a misrepresentation about the speed.
Question: So you believe that Mr. Mayo was making a misrepresentation -- first, at the time of this report, did you believe that Edison was making a misrepresentation about the speed he was traveling? Answer: No.
Two questions later: Okay. After whether or not you could slip a truck at 20 miles an hour, I asked him, So you believe that he was making a misrepresentation about his speed? Answer: Correct.
Then there was some testimony about the white drivers and whether they had any injuries or accidents. And one of the white drivers was Ralph Lantz. We heard from him. And the other white driver was Kevin Christian, and we heard from him. And when we talked to Sean Odahl he was asked specifically by his attorney, Did Kevin Christian have any accidents while you were the supervisor? The answer, no, he has not, no accidents involving damage to company property or injury.
Well, this is Plaintiff's Exhibit 5. You heard Edison Mayo talk about this exhibit. This is a document from San Joaquin County small claims division. Kevin Christian is the defendant. Payment made of eleven hundred dollars and 41 cents, $1,166.41. Full and final settlement of damages to Mr. Mayo's vehicle on July 28th, 2006, at Recycle to Conserve.
What was this lawsuit about? Why does the defendant owe plaintiff money? The defendant damaged my car while it was parked in the parking lot. You remember that? He dropped a bin, a bin that they hold the dough, he dropped it, hit the car, damaged the car. This was after the accident policy, and it caused property damage, so why didn't it count against Kevin Christian under the accident policy?
I asked Sean Odahl about that. His answer was property damage was property damage. It could be ours or it could be a third party's. Why didn't it count against Kevin Christian?
Now, at the beginning of this trial, I told you that it is always difficult to show that there is race discrimination. The law that we're dealing with is over 40 years old at this point, and we as a society have become very good at masking or hiding our prejudices. No one sends an e-mail or writes a memo about the prejudice that they have against other people. Things are done verbally. And so that can be hard to prove when you're in a court of law because, as you've seen the last week or so, we look at a lot of documents. We look at a lot of exhibits.
But I think you were able to discern from the testimony that you heard that there was some bad blood between Elwood Lindsay and Edison Mayo. We had Elwood tell us that, you know, he come out telling me my job. You don't do that. And you don't tell me what to change on the truck.
I asked him, Did you ever call Edison any names? Answer: Not that I remember.
These names that we have been talking about, you know, coon, I don't even -- I don't even want to say them, you know, lazy nigger.
Have you ever called him any ethnic or racial names at all? Not that I remember. Don't you think he would have said no if he didn't do it?
We all know that we can only be held to testify about what we remember. Well, not that I recall is an easy way of saying I'm not going to say no to that because I don't want to commit perjury, but I don't want to admit it either. Not that I remember.
So on this issue of bad blood, then, we had -- obviously we had Edison Mayo talk, and then we had Elwood Lindsay talk, and then we had Joe Serpa talk. Joe Serpa, disinterested witness presumably. He had a little bit of a run-in with Elwood, that's not disputed. He was let go in November of 2009. The reason given was that his salary was too high. He made 12.50 an hour. We remember Joe Serpa. No interest in this case at all. Just thought that things were being done to Edison or that he was not getting a fair shake.
Joe Serpa testified about the words. What kind of comments would you hear Elwood say about Edison? He was a lazy "N" word. Ah, coon. Just he's no good, he's worthless, he doesn't need to be here, so forth.
These are the things that Elwood Lindsay was saying about and to Edison Mayo. This is evidence of the bad blood between those two. Keep in mind, Elwood Lindsay is the reason why it was decided there was no mechanical failure with that trailer.
Joe Serpa testified about the frustration that Edison Mayo was feeling, that he was going to his supervisor, he was trying to correct these issues, and nothing was getting done.
He testified that he saw that other drivers were going into the shop to get minor repairs done for little nicks or bumpers going bad or little things like that that occurred in the course of driving. They would get their repairs done quickly and be out the door.
And we, again, established there's only one supervisor, there's only one general manager at this plant, and it's Sean Odahl. There was some talk about, well, if Sean Odahl is not being responsive to your complaints, go higher. But there was no one higher. There was no one else there.
We talked a little bit about human resources. They're down in L.A. The way that Edison Mayo contacted human resources previously was he went to the secretary and said, I need to talk with someone about a payroll issue I'm having. The secretary connected him to human resources. That was years prior and had nothing to do with complaints of discrimination or inappropriate conduct by a co-worker in the workplace.
My point here is that you've got Edison telling you, Edison Mayo telling you that there was this problem, this inappropriate conduct in the workplace. You've got Elwood Lindsay admitting it to a degree. You've got Sean Odahl admitting that he came to -- that Edison came to him on several occasions with problems related to Elwood Lindsay.
And then you've got Joe Serpa, who was just an employee there at the time and really is as close to an impartial witness as we're going to get in this case because all the other witnesses were either on the plaintiff's side or the defense side, employed by the defendant. And he told us, yeah, there was problems. There was bad blood between those guys. There was racial stuff going on in the workplace.
Joe also talked about the trailer and the problems with the trailer.
So you're going to be asked a couple of questions, and the first is going to be whether race played a role in the firing, and that's what we have been talking about this entire time. The second question you're going to be asked is whether -- even if race didn't play a role in the termination, whether Recycle to Conserve, Incorporated, still would have terminated Mr. Mayo anyway. That's question two essentially.
And what I want to point out to you is that the basis for the termination, as we have been talking about this entire morning, is that there was no mechanical problem with the trailer. The trailer was never checked out, the trailer was never investigated, there was never any look at the brakes, but they determined there was no mechanical problem with the trailer. How did they determine that? Because of what Elwood told them. But that was the basis for the termination.
So my question would be, if there was a mechanical problem with the trailer, clearly you wouldn't have terminated Edison Mayo, right? Because that was the whole basis for their termination. So even if you try to take race out of the equation, you're still left with the only reason they fired him is because of what the racist guy told him about Edison Mayo and all the things that he said in that two-page report going back to August of that year.
You know, I don't think that Sean Odahl is a racist guy. I don't think that he deliberately set Edison Mayo up to get fired. And I don't think he had anything against Edison Mayo or anybody at his job. To me Sean Odahl seemed like a pretty straightforward guy.
But the thing that we heard repeatedly from the witnesses in this case was that he was an office guy. He didn't much try to get involved with some of the problems that the employees were having. We heard Elwood Lindsay say, you know, he's an office guy. He doesn't know what's going on in my shop. The shop is my area. He stays up front, deals with the numbers.
We heard Sean Odahl tell us himself that he was brought in to make the company more profitable from the Los Angeles office. We heard Joe Serpa say, well, you know, my feeling was he wasn't going to do anything about any complaints, you might as well just shred them, nothing gets sent to corporate. And he's a numbers guy, he's there for that reason.
So I think what you had happen is you had this culture of truck drivers, and there was inappropriate conduct in the workplace, but Sean Odahl, for whatever reason, just didn't want to address it. He was notified of it, several employees came to him and said there was an issue, but for whatever reason he was focused on the profitability of the company. And there's nothing wrong with focusing on the profitability of a company, but you also need to -- as the general manager, as the only supervisor, you also need to turn your attention to your people when there is an allegation or there's evidence of improper conduct in the workplace.
Now, at the conclusion of the jury verdict form, you're going to be asked a question that if you found that there was race as a factor, and if you found that there was no way they could have terminated him absent this racial factor, those two first questions, the third question says, okay, what kind of damages are going to be involved here?
In a criminal case, if the defendant is found guilty, he's sentenced to jail time. But in a civil case, if you found the defendant liable, then the penalty is damages, it's not jail time.
And so you're going to be asked for two categories of damages. The first is called compensatory damages. Now these are, generally speaking, damages to make the plaintiff whole again, to compensate him for having to deal with this case, for having to be out of work, for having to bring a lawsuit in federal court, for having to do all of the things that go with the problems of being involved in a lawsuit. It's stressful. And this lawsuit has been going on for two years now.
So I talked to Mr. Mayo, and we would submit to you that, if you are inclined to award compensatory damages to Mr. Mayo, you consider these factors.
THE COURT: No, you don't. You can't consider wages. We've talked about that.
MR. BOLANOS: I'm asking them to calculate compensatory damages using his wages as a baseline.
THE COURT: I suppose you can get away with that. Go ahead.
MR. BOLANOS: Mr. Mayo does not want to or seek a windfall from this case. He doesn't want to say that the mental stress was so burdensome for him that he should be entitled to what would essentially be like winning the lottery. Sometimes we see some of these outrageous civil judgments that are in the millions of dollars. That's not what we're looking for here.
What Mr. Mayo is saying is that he did have a substantial problem after this incident took place, and he would just like to be compensated for the trouble that he went through. The trouble that he went through was essentially this.
He made nineteen an hour at Recycle to Conserve. He was out of work for six months. Nineteen an hour times 40 hours a week is seven sixty. Seven sixty times four, that's 3,000 bucks a month. $3,000 a month times six months he was out of work, $18,000.
Then he got another job at Cherokee Truck Lines, but he made substantially less at Cherokee, he made fourteen an hour, and he still works there now. So same analysis. Fourteen an hour times 40 hours a week is approximately $500. $500 times four weeks is approximately $2,200 a month, which comes out to, per year, $26,880.
Now you'll see I also did the analysis at the Recycle to Conserve wage times a year. He made 36,000 a year. So he essentially made 36,000 at Recycle to Conserve and twenty-six at Cherokee. So it's about a $10,000 difference.
So our request to you would be the loss of $18,000 over six months
THE COURT: I just can't let you -- I'm sorry. I cannot let you make this argument.
MR. BOLANOS: All right.
THE COURT: The law is, Ladies and Gentlemen, that you may not award any damages for lost wages. If you decide liability, it will be for the Court to determine how much, if any, to award the plaintiff for his lost wages. You may only award compensatory damages for the emotional distress. You may not award damages for lost wages.
I just can't let you make that argument, Mr. Bolanos. I'm sorry.
MR. BOLANOS: All right. Then let me phrase it a different way.
The compensatory damages Mr. Mayo requests for his pain and suffering, for his emotional distress, for the mental anguish of going through this process is $34,000.
Now, on the issue of punitive damages, punitive damages are a second category of damages that deal with punishing a defendant. You're going to be asked if the defendant acted in willful disregard for a federally protected right or deliberately turned a blind eye or was indifferent to a federally protected right. And I would submit to you that some of Mr. Odahl's conduct in failing to take any action at all and just really not taking any action to correct what was inappropriate conduct in the workplace could constitute a deliberate indifference to the occurrence of that conduct.
And so you're going to be asked to determine what, if any, punitive damages, which are to -- essentially to punish or deter an employer from doing this kind of thing again. You know, you want the employer to say or the defendant to say, look, we need to do something differently so that this kind of stuff doesn't happen again. And unfortunately, you know, in our world, in a profit-driven world, in a corporate-driven world, that sort of incentive only comes with having to write a check. Companies don't listen to anything besides that.
Now, the way I've seen punitive damages computed is as follows, and here's what I would submit to you.
If you want to consider punitive damages, I would put it at three tiers. I would say, if the level of culpability is low, we don't want to punish them too much, just consider half of the compensatory damages, whatever you award. If you want to say it's sort of in the middle range of culpability, consider an amount equal to the compensatory damages award. And then if you believe that there is an egregious need for punitive damages, you would want to double the compensatory damages award. Those are your three -- low, medium and high -- if you're inclined to award punitive damages. And that's completely up to you.
I will tell you that any award of ten times or greater compensatory damages is not going to work. It's going to get thrown out by the Court. They're going to say it's too much. So limit your -- if you do award punitive damages, keep that limit in mind.
Otherwise, I would thank you again for your jury service, and we appreciate your time.
THE COURT: All right. Ms. Kennaday, would you rather have a break or would you rather start right now and then we can break when you decide that you would like to ask me to do that?
MS. KENNADAY: Well, Your Honor, if we could take a break right now, then I can finish up probably in about 35 minutes.
THE COURT: All right. We'll take a 10-minute recess. Ladies and Gentlemen, remember the admonition.
(Recess taken.)
(End of requested proceedings.)
I certify that the foregoing is a correct partial transcript from the record of proceedings in the
above-entitled matter.
Kathy L. Swinhart
KATHY L. SWINHART, CSR #10150