Opinion
Civ. No. 94-CV-2173.
March 7, 2000.
ORDER
This case is before the court for ruling on all remaining pending Motions. A jury trial was held in this case which began on February 16, 1999, and ended March 4, 1999. Subsequently, on June 24, 1999, this court entered judgment in favor of Plaintiff, Jerry Deon Owens, and against Defendant, Archer Daniels Midland Co. (ADM), on Plaintiff's claim under the Americans with Disabilities Act (ADA) in the amount of $565,000. However, this court granted the parties' request for a new trial as to Plaintiff's claim against ADM and Defendant Marie E. Powers, as Independent Administrator of the Estate of Art Boyle (Boyle Estate), for the intentional infliction of emotional distress (IIED). Following a jury trial held on October 18, 1999, through October 22, 1999, this court entered judgment in favor of Plaintiff and against Defendants on the IIED claim in the amount of $3,535,000. Post-trial motions remain pending as to both judgments.
I. POST-TRIAL MOTIONS RELATED TO ADA JUDGMENT A. FRONT PAY UNDER THE ADA
On November 12, 1999, Plaintiff filed a Motion to Reconsider Ruling on Front Pay under the ADA (#374). In the Order entered June 24, 1999 (#267), this court carefully explained the distinction between damages for lost future earnings and front pay. Damages for lost future earnings may be awarded by a jury under Title VII (and the ADA). Williams v. Pharmacia, Inc., 137 F.3d 944, 952-53 (7th Cir. 1998). This type of damages may be awarded when the plaintiff shows that his injury caused a diminution in his ability to earn a living. Williams, 137 F.3d at 952. Damages for lost future earnings are compensatory damages under 42 U.S.C. § 1981a(b)(3) (Williams, 137 F.3d at 952-53) and, as a result, these damages fall under the $300,000 statutory cap on compensatory damages ( 42 U.S.C. § 1981a(b)(3)(D)). By contrast, front pay is an alternative to the equitable remedy of reinstatement and is the judge's decision rather than the jury's. See Williams, 137 F.3d at 951-52; Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1141-42 (7th Cir. 1994). This court concluded in its Order that "front pay is not an appropriate award in this case because the evidence proved that Plaintiff is completely disabled and cannot work."
In his Memorandum in Support of his Motion to Reconsider Ruling, Plaintiff argues that this court should reconsider its decision regarding front pay because recent case law has held that front pay does not fall under the statutory cap on compensatory damages. See Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148, 1153-55 (9th Cir. 1999) (district court properly found that its award of front pay did not fall under the statutory cap on compensatory damages); Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1348-49 (D.C. Cir. 1999), cert. dismissed, 2000 WL 156060 (U.S. 2000) (front pay equitable remedy so award of front pay excluded from statutory damages cap); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 556 (10th Cir. 1999), cert. denied, 120 S.Ct. 48 (1999) (award of front pay excluded from statutory compensatory damages cap); Kramer v. Logan County School Dist. No. R-1, 157 F.3d 620, 625-26 (8th Cir. 1998) (district court's award of front pay did not fall under statutory cap); but cf., Hudson v. Reno, 130 F.3d 1193, 1203 (6th Cir. 1997), cert. denied, 119 S.Ct. 50 (1998) (front pay is an award of damages to compensate for "future pecuniary losses" and is subject to the statutory cap on damages). Based upon this case law, Plaintiff asks this court to enter judgment on the jury's award of $1,020,000 for back and future lost salary.
Plaintiff has completely misapprehended this court's Order. This court did not determine that front pay fell under the damages cap but, in considering Plaintiff's very belated request that this court award front pay, concluded that Plaintiff was not entitled to front pay because he is completely disabled and unable to work. The fact that case law holds that front pay does not fall under the statutory damages cap does not change this court's conclusion that, based upon the facts of this case, Plaintiff is not entitled to front pay under the ADA. See Flowers v. Komatsu Mining Sys., Inc., 165 F.3d 554, 556 (7th Cir. 1999) (disabled plaintiff's claim for front pay under the ADA properly rejected).
Accordingly, Plaintiff's Motion to Reconsider Ruling on Front Pay under the ADA (#374) is DENIED.
B. SOCIAL SECURITY BENEFIT SET OFF
This court reserved ruling on ADM's request for an offset against Plaintiff's $240,000 back pay award under the ADA for the social security disability payments Plaintiff has received. Plaintiff filed records with the court showing that he received: $6,720 in 1993; $13,788 in 1994; $14,172.70 in 1995; $14,550 in 1996; $14,961.60 in 1997; and $15,273.60 in 1998; for a total of $79,465.90.
In Flowers, the Seventh Circuit considered the issue of whether the district court erred when it set off social security disability payments from the plaintiff's back-pay award under the ADA. Flowers, 165 F.3d at 558. The plaintiff argued that the social security payments were from a collateral source and should not have been offset. The court stated:
The purpose of the collateral source rule is "not to prevent the plaintiff from being overcompensated but rather to prevent the tortfeasor from paying twice." Perry v. Larson, 794 F.2d 279, 286 (7th Cir. 1986). In an employment case, if the employer is the source of the funds at issue, then the payments can be deducted from the award. However, we have said in an age discrimination case that even if the source is collateral, "it is clear that a district court has discretion to deduct or not deduct them from an ADEA back pay award." EEOC v. O'Grady, 857 F.2d 383 (7th Cir. 1988). It is within the district court's discretion to set off-or not to set off-social security disability payments. However, . . . the only social security disability payments which can be set off are the ones [the plaintiff] received during periods for which he received back pay. Flowers, 165 F.3d at 558.
Based upon Flowers, this court must consider the issue of an offset for social security disability payments. However, this court may, in its discretion, deny the offset. In O'Grady, the Seventh Circuit held that the district court did not abuse its discretion when it refused to offset pension benefits received by the plaintiff because "as between conferring a windfall on claimants or defendants, claimants are the logical choice." O'Grady, 857 F.2d at 391.
In Kohnke v. Delta Airlines, Inc., 1995 WL 478858 (N.D.Ill. 1995), the Magistrate Judge recommended that disability payments should not be offset against any award of damages under the ADA. The Magistrate Judge stated that the net effect of deducting these payments "would be to dilute the deterrent effect of the enforcement of the [ADA]." Kohnke, 1995 WL 478858, at *6.
Similarly, the court in Stein v. Forest Preserve Dist. of Cook County, 1994 WL 160563, at *2 (N.D.Ill. 1994), declined to exercise its discretion to offset social security benefits received by the plaintiff in an age discrimination case. The court stated that if its choice was to give a windfall to the defendant or the plaintiff, it chose the plaintiff. Stein, 1994 WL 160563, at *2.
In this case, this court, in its discretion, denies the offset because: (1) it is better to confer a windfall on Plaintiff rather than ADM because the jury found that ADM violated Plaintiff's rights under the ADA (see O'Grady, 857 F.2d at 391; Stein, 1994 WL 160563, at *2); and (2) an offset could dilute the deterrent effect of the enforcement of the ADA (see Kohnke, 1995 WL 478858, at *6). Accordingly, ADM's request that Plaintiff's social security benefits be set off against the back pay awarded under the ADA is DENIED.
C. PREJUDGMENT INTEREST
On July 9, 1999, Plaintiff filed a Motion for Prejudgment Interest (#273). Plaintiff argued that he should be awarded prejudgment interest on the back pay portion of the judgment entered under the ADA. Plaintiff argues that the Seventh Circuit has held that prejudgment interest should be presumptively available to victims of federal law violation, citing Gorenstein Enter. v. Quality Care USA, 874 F.2d 431, 436 (7th Cir. 1989). The interest rate to be applied is within the discretion of the court. O'Grady, 857 F.2d 383 at 392. However, according to Plaintiff, district courts in the Seventh Circuit have used the federal post-judgment interest rate, which was 5.163% on June 24, 1999. Based upon this interest rate, Plaintiff calculated that the total amount of interest on the back pay award over the last six years is $42,728.54.
ADM argues that Plaintiff has waived this issue by not raising it any time prior to July 9, 1999. ADM also pointed out that one of the requirements for awarding prejudgment interest is that the damages must be easily ascertainable. See Donnelly v. Yellow Freight System, Inc., 874 F.2d 402, 411 (7th Cir. 1989), aff'd, 494 U.S. 820 (1990). ADM noted that prejudgment interest could not be awarded until after a decision was made regarding a set off for social security benefits. ADM has not contested the interest rate proposed by Plaintiff.
ADM has cited no case law authority in support of its waiver argument. This court does not find the argument persuasive because Plaintiff filed a Motion seeking prejudgment interest within 30 days of the date judgment was entered on the ADA claim, June 24, 1999. Moreover, the Seventh Circuit has held that prejudgment interest is an element of complete compensation and a normal incident of relief under Title VII. Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1046 (7th Cir. 1994). This presumption in favor of prejudgment interest has also been applied to damages for back pay under the ADA. See Best v. Shell Oil Co., 4 F. Supp.2d 770, 773 (N.D.Ill. 1998); see also Price v. Interstate Warehousing, Inc., 49 F. Supp.2d 1081, 1082 (N.D.Ill. 1999). So long as the amount of damages for back pay is "easily ascertainable," prejudgment interest should be allowed. Hutchison, 42 F.3d at 1047-48. In this case, this court has determined that Plaintiff is entitled to $240,000 for back pay. This court has also determined that there should not be a set off from this amount for the social security disability benefits Plaintiff has received. Accordingly, Plaintiff's Motion for Prejudgment Interest (#273) is GRANTED, and Plaintiff is awarded the $42,728.54 in prejudgment interest he has requested.
D. ATTORNEY FEES AND COSTS
Plaintiff submitted a Petition for Attorney Fees and Costs (#279) on July 27, 1999. Plaintiff requested a total of $346,576.84, broken down as follows: $88,718.75 in attorney fees for Mary Lee Leahy (Leahy); $240,633.00 in attorney fees for Frank Renner (Renner); $6,000 in paralegal fees; and $11,225.09 in costs. In support of his Petition, Plaintiff submitted:
(1) the affidavit of Leahy which set out her extensive experience in employment-related law, stated that she has previously been awarded $225 per hour in a case in this district, and also showed that her current fee agreements with clients reflect an hourly rate of $225;
(2) an itemization of the 394.50 hours Leahy spent on the case from June 6, 1995 to July 26, 1999, and an itemization of the 120 paralegal hours spent on the case from September 8, 1995 to July 23, 1999;
(3) an itemization of 16.25 hours Leahy is not claiming because this time involved only the IIED claim, and an itemization of 22.25 paralegal hours spent solely on the IIED claim;
(4) an itemization of Leahy's costs related to the ADA claim in the total amount of $7,908.76;
(5) the affidavit of James C. Craven, an attorney practicing in Springfield, stating that a reasonable hourly rate for Leahy's services is $225 per hour;
(6) the affidavit of Thomas Londrigan, an attorney practicing in Springfield, stating that a reasonable hourly rate for Leahy's services in $225 per hour;
(7) the affidavit of Patricia C. Benassi, an attorney practicing Peoria, stating that "a rate of $225.00 per hour for a person of Ms. Leahy's accomplishments, ability and experience is more than reasonable." In fact, Benassi stated that, in her opinion, Leahy is entitled to $300 per hour;
(8) the affidavit of Renner setting out his legal experience;
(9) an itemization of the 1,254.49 hours Renner spent on the case from April 25, 1995 to June 16, 1999. The itemization states that 183.76 of these hours were spent solely on the IIED claim so that a total of 1069.48 hours are claimed as hours spent on the ADA claim. Renner's itemization of his time is not as detailed as Leahy's itemization and includes a total of 63 days for which he states he spent eight hours or more working on this case;
(10) an itemization of $3,316.33 in costs incurred by Renner;
(11) the affidavit of John Nicoara, an attorney practicing in Peoria, stating that Renner's request for $225 per hour "is in line with the degree of expertise he possesses, the requirements of federal litigation and the complexities of the issues presented by the case of Owens v. ADM;"
(12) the affidavit of Patricia C. Benassi, stating that a rate of $225 per hour for Renner's services is "more than reasonable." In fact, Benassi stated that, in her opinion, Renner is entitled to $275 to $300 per hour.
Plaintiff also filed a Memorandum of Law in support of the Petition. Plaintiff argued that "the claim under the ADA was closely linked to the claims of intentional infliction of emotional distress" and that the "same facts underlay all claims." Plaintiff also argued that $225 per hour for attorney time and $50 per hour for paralegal time was reasonable. Plaintiff also noted that it was not unusual for Leahy and Renner to team up on a case such as this one.
On August 6, 1999, ADM filed a Memorandum of Law in Opposition to Plaintiff's Petition for Attorney Fees and Costs (#282). ADM argued that, because this case involved two distinct claims, Plaintiff's attorneys should not be able recover substantially all of their fees and costs resulting from the litigation as a whole. ADM also strenuously objected to Renner's request for reimbursement for time he spent trying to gain access to the premises of ADM in November 1995. ADM noted that these efforts were found to be sanctionable and the District Court awarded ADM the fees it incurred in responding to the sanctionable conduct by Renner. In addition, ADM argued that the hourly rate requested exceeded the amount accepted within the legal community.
Plaintiff filed a Reply (#284) on August 16, 1999, and argued that the hours requested and the hourly rate requested were reasonable. Plaintiff noted that ADM presented no affidavits as to what the appropriate hourly rate should be.
A hearing was held on Plaintiff's attorney fee petition (and other matters) on December 22, 1999. At the hearing, Leahy testified that she was brought into the case because of her expertise on employment discrimination law, including the ADA. She indicated that much of her time spent on the case related to the ADA claim. Renner testified that, for family law matters and other similar litigation, he generally charges $165 per hour for trial work and $155 per hour for office work. He candidly admitted that he has never charged $225 per hour. However, he stated that this was a very difficult and demanding case. He opined that the case was as demanding as a medical malpractice case. In his affidavit, Renner stated that the fees garnered in medical malpractice cases he handled on a contingent fee basis had equaled or exceeded $225 per hour.
At the hearing, ADM again argued that it would not be right to award fees under the ADA for the time spent by Plaintiff's counsel on the IIED claim. ADM contended that probably 90% of the time spent on the case was spent on the IIED claim.
The ADA provides that "the court . . . in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205. Accordingly, Plaintiff may recover reasonable attorney fees as the prevailing party on his ADA claim. A district court's fee determination is guided by the Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424 (1983). Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999). Under Hensley, "`[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'"
Spegon, 175 F.3d at 550 (quoting Hensley, 461 U.S. at 433). This product is commonly referred to as the "lodestar." Spegon, 175 F.3d at 550. The party seeking the fee award bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed. Spegon, 175 F.3d at 550. The district court may then increase or reduce the modified lodestar amount by considering a variety of factors, the most important of which is the degree of success obtained. Spegon, 175 F.3d at 550. The factors a district court must review in determining an appropriate attorney fee award include: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. City of Riverside v. Rivera, 477 U.S. 561, 568 n. 3 (1986); Hensley, 461 U.S. at 430 n. 3. However, "Hensley does not require the application of a precise rule or formula, leaving fee reduction to the discretion of the trial court." Bryant v. City of Chicago, 200 F.3d 1092, 1101-02 (7th Cir. 2000). In appropriate circumstances, a percentage reduction may be made by a district court without parsing the specific hours to be eliminated. Tauber v. City of Chicago, 33 F. Supp.2d 699, 701 (N.D.Ill. 1999); see also Bryant, 200 F.3d at 1102. The district court must, however, provide a "concise but clear explanation" of why it reduced the total amount of hours or fees. U.S.E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1288 (7th Cir. 1995).
This court first concludes that $225 per hour is a reasonable rate for an attorney of Leahy's experience in employment-related law. However, this court concludes that Renner's experience does not justify the same hourly rate. As noted, Renner candidly testified that the highest hourly fee he has charged is $165 per hour for trial work. He stated that he believed a higher hourly rate is warranted here because of the complexity of the case. This court agrees but not to the extent requested by Renner. This court is not required to enhance Renner's hourly rate to a new high $60 more than he has previously charged. See Cunningham v. Gibson Elec. Co., 63 F. Supp.2d 891, 893 (N.D.Ill. 1999). This court concludes that $175 per hour is a reasonable rate for Renner's work on this case. See Perez v. Z Frank Oldsmobile, Inc., 2000 WL 222632, at *1-2 (N.D.Ill. 2000) (court concluded $185 was a reasonable hourly rate although attorney claimed he was entitled to $225 per hour because of the complexity and undesirability of the case); Dale M. v. Board of Educ. of Bradley-Bourbonnais High School Dist. No. 307, 29 F. Supp.2d 925, 928 (C.D.Ill. 1998) (this court concluded hourly rate of $175 appropriate for attorney who was specialist in special education advocacy).
This court agrees with the district court in Cunningham that, while the affidavits submitted by Renner from other lawyers might arguably support a higher rate than this court is awarding, "those affidavits are thin on demonstrating total parallelism between the bases used by the affiants for their opinions and the circumstances of the particular lawyer involved in this action." Cunningham, 63 F. Supp.2d at 893. This court believes the best indicator of the "prevailing market rate in the relevant community" (see Cunningham, 63 F. Supp.2d at 892, citing People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310, 1312 (7th Cir. 1996)) is the rate that Renner customarily charges his clients.
In this case, Plaintiff was successful on his ADA claim and has been awarded a judgment in the amount of $565,000. This court also concludes that Plaintiff's ADA claim presented novel and difficult questions and required a substantial amount of time and labor. However, this court agrees with ADM that a reduction in the number of hours requested is warranted. In most cases, a court is faced with determining an appropriate award for attorney fees where some of the plaintiff's claims have been successful and some have not been successful. See Hensley, 461 U.S. at 434-40; Bryant, 200 F.3d at 1100-01; Merriweather v. Family Dollar Stores of Ind., Inc., 103 F.3d 576, 582-84 (7th Cir. 1996); Tauber, 33 F. Supp.2d at 701-703. In this case, Plaintiff brought two separate and distinct claims. See Van Stan v. Fancy Colours Co., 125 F.3d 563, 571 (7th Cir. 1997) (different elements make up a claim under the ADA and a claim for IIED). Plaintiff was ultimately successful on both claims. However, Plaintiff does not dispute that he is not entitled to receive attorney fees under the ADA for time spent on the IIED claim. As a result, Plaintiff is not seeking an award of fees for 16.25 hours Leahy spent solely on the IIED claim and 183.76 hours Renner spent solely on the IIED claim. However, this court concludes that Plaintiff has underestimated the amount of time attributable solely to the IIED claim.
It is clear to this court from its presence at the first trial and a review of the voluminous file that much of the time spent in this case related solely to the IIED claim. Although there was some overlap, this court concludes that most of the evidence presented at the first trial related to the claim of IIED and not the ADA claim. Plaintiff presented testimony regarding the circumstances of his employment at ADM from the early 1980's through the date he left his employment in December 1992. Most of this testimony could not have any real relevance to Plaintiff's claimed violation of the ADA, which was not in effect until July 26, 1992. In fact, the jury in the first trial was given the following instruction:
The Americans With Disabilities Act (ADA) did not become effective until July 26, 1992. Therefore, Defendant, Archer Daniels Midland Company, could not have violated the Americans With Disabilities Act prior to that date. However, evidence was presented in this trial regarding certain actions and events occurring prior to July 26, 1992.
Evidence of acts prior to July 26, 1992, has been allowed by the court for the limited purpose of determining whether either of the Defendants are liable to the Plaintiff for intentional infliction of emotional distress.
Evidence of acts prior to July 26, 1992, must not be considered by you in determining whether Defendant, Archer Daniels Midland Company, violated the ADA. It should only be considered in determining whether either of the Defendants are liable to the Plaintiff for intentional infliction of emotional distress.
Based upon the law, as stated in this jury instruction, much of the evidence presented at trial had no relevance to the ADA claim.
This court does note that Leahy was brought into the case as an expert on employment-related law, including discrimination under the ADA, and indicated that much of her time was spent on the ADA claim. Based upon the record, this court concludes that 75% of Leahy's time was spent on issues related to the ADA claim. Accordingly, this court will reduce the total number of hours spent by Leahy, 410.75, by 75% to 308.06. At $225 per hour, Plaintiff is entitled to $69,313.50 in attorney fees for Leahy's time spent on the ADA claim. This court will also award 75% of the total number of paralegal hours spent on this case, for a total of 107 hours. At $50 per hour, this amounts to an award of $5,350 for paralegal fees.
In Plaintiff's reply to ADM's opposition to his request for attorney fees, Plaintiff states that it was Renner who interviewed the witnesses, drafted witness statements and prepared the occurrence witnesses for trial. This court notes that most of this time related to testimony solely relevant to the IIED claim. Also, Renner's itemization of time shows that he was the one who responded to Defendants' Motions for Summary Judgment. All of the Motions for Summary Judgment filed in this case related solely to the IIED claim. Renner has deducted some of the time spent responding to the Motions for Summary Judgment as time related only to the IIED claim. However, he has included many hours spent researching and responding to the Motions for Summary Judgment in his request for attorney fees. Further, Renner has included significant time spent regarding the issues raised by the death of Art Boyle. These issues related solely to the IIED claim. This court concludes that Renner did not adequately reduce the number of hours in the fee petition to reflect the total number of hours spent on issues and testimony which related solely to the IIED claim. Based upon all of these considerations, this court concludes that it is fair and reasonable to reduce the total number of hours spent by Renner in this case by 50%. Therefore, this court concludes that 627.25 of Renner's time was spent on issues related to the ADA claim.
However, this court also agrees with ADM that it should not be required to pay for Renner's time for conduct which was found sanctionable. On October 12, 1995, Plaintiff, by Renner, filed a Motion to Compel (#37) and ADM responded with a Motion for Sanctions (#40). On November 28, 1995, Renner filed a Motion to Compel access to the ADM Refinery (#44). ADM filed a Motion for Sanctions (#45), arguing that the filing of the Motion was sanctionable because the parties had entered into a Stipulation by which ADM agreed to allow Plaintiff access to the refinery. On February 9, 1996, Magistrate Judge David G. Bernthal entered an Order (#58) which found that the filing of both Motions to Compel subjected Plaintiff to sanctions. Judge Bernthal later entered an Order (#69) ordering Plaintiff to pay ADM's attorney fees in the amount of $1,725. Judgment was entered against Plaintiff in that amount on May 13, 1996 (#70). Based upon this history, this court will deduct 10 hours of Renner's time charged for preparing the November 28, 1995, Motion to Compel, which Magistrate Judge Bernthal found to be sanctionable conduct, and time charged for responding to the Motions for Sanctions. This reduces Renner's total compensable time to 617.25 hours. At $175 per hour, Plaintiff is awarded $108,018.75 for Renner's time spent on the ADA claim.
This court further notes that ADM has represented to this court that the judgment entered against Plaintiff in the amount of $1,725 has not been satisfied. The court concludes that this amount should be deducted from the attorney fees awarded to Plaintiff. It is appropriate to deduct this amount from the fees awarded for Renner's time. This reduction results in a total award for Renner's time of $106,293.75. Accordingly, this court awards attorney fees in the total amount of $180,957.25. This court concludes that this is a "reasonable attorney's fee" under the ADA. ADM has not challenged the costs claimed in this case, so costs are awarded in the total amount requested of $11,225.09. See Place v. Abbott Lab., 1999 WL 675301, at *4 (N.D.Ill. 1999).
II. POST-TRIAL MOTIONS ON IIED JUDGMENT A. ADM'S MOTION FOR A NEW TRIAL
On November 1, 1999, ADM filed a Motion for a New Trial (#364) pursuant to Rule 59 of the Federal Rules of Civil Procedure. ADM argues that: (1) the jury was improperly instructed on the issue of alter ego; (2) the court improperly modified the verdict form submitted to the jury; (3) the court erred when it did not allow evidence of the dollar value of the equipment Plaintiff "had charge of" to rebut evidence elicited by Plaintiff regarding Art Boyle (Boyle); (4) the court erred when it allowed the testimony of Robert Sheets over ADM's objection that Plaintiff's counsel violated Rule 4.2 of the Rules of Professional Conduct when he interviewed Sheets prior to trial; (5) the court improperly instructed the jury on the issue of Boyle's intent; (6) the court erred in allowing witnesses to testify regarding incidents not connected to Boyle, and the court's subsequent striking of some of this testimony was insufficient to remove the "taint" from the consideration of the jury; (7) the court erred when it allowed the desk to be admitted into evidence and published to the jury; (8) the court improperly instructed the jury on the issue of proximate cause; (9) the court erred in allowing evidence of incidents which occurred prior to July 18, 1992, because claims for such events were barred by the applicable statute of limitations; (10) the court erred when it allowed Plaintiff's expert witness, William Powell, to testify on the issue of causation; and (11) the court erred in allowing Plaintiff to pursue a claim for costs of counseling. Based upon these claims of trial error, ADM argues that the verdict returned was contrary to law, against the manifest weight of the evidence and the result of matters considered improperly by the jury. Accordingly, ADM seeks an order granting a new trial on Plaintiff's IIED claim.
This court previously ruled on all of the issues raised either at trial or prior to trial (in the case of the issues of alter ego and the statute of limitations on many occasions prior to trial). This court adheres to all of its prior rulings and the reasons stated for the rulings. Regarding the issue of alter ego, this court notes that the Illinois Appellate Court has recently recognized that a managerial employee may be found to be the alter ego of the employer "through evidence that the manager was in a position of authority over other employees and the employer knew of or allowed the injurious conduct or knew there was a substantial likelihood that injurious conduct would occur." Toothman v. Hardee's Food Sys., Inc., 710 N.E.2d 880, 886 (Ill.App.Ct. 1999), app. denied, 720 N.E.2d 1106 (Ill. 1999). For the reasons previously stated on the record regarding all of the issues raised, ADM's Motion for a New Trial (#364) is DENIED.
B. ADM'S MOTION FOR JUDGMENT
On November 1, 1999, ADM filed a Motion for Judgment (#365) pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. ADM repeats many of its arguments regarding trial errors set out in its Motion for New Trial and argues that it is entitled to judgment because: (1) Plaintiff failed to prove Boyle was the alter ego of ADM, thus precluding Plaintiff's claim against ADM; (2) ADM is entitled to judgment because Plaintiff was required to prove that Boyle had the specific intent to injure Plaintiff in order to avoid the exclusivity provisions of the Illinois Workers Compensation Act; (3) Plaintiff failed to prove causation because, even if Powell's testimony on causation is considered, it was not sufficient to show that Plaintiff's injuries were caused by Boyle; (4) the testimony regarding Boyle's conduct was not sufficient to establish a claim for IIED; (5) Plaintiff's claim of IIED was barred by the applicable statute of limitations; (6) Plaintiff failed to prove any damages which arose from the alleged actions of Boyle; and (7) communications between Plaintiff's counsel and ADM employee witnesses, including Sheets, was a violation of Rule 4.2 and the testimony of these witnesses should have been stricken. Based upon these arguments, ADM contends that this court should enter judgment in favor of ADM and against Plaintiff on Plaintiff's IIED claim.
Pursuant to Rule 50 of the Federal Rules of Civil Procedure, this court may grant a motion for judgment as a matter of law "if there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a). In ruling on ADM's Motion for Judgment, this court's inquiry is limited to "whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed." Williams, 137 F.3d at 948. This court concludes, for the reasons previously stated on the record in this case, that Plaintiff presented sufficient evidence that Boyle was the alter ego of ADM for the issue to go to the jury. This court next rejects ADM's argument that it is entitled to judgment because Plaintiff failed to prove that Boyle acted with the specific intent to injure Plaintiff. This court notes that none of the cases cited by ADM in support of this argument involve IIED claims. This court concludes that the jury could reasonably find that Boyle intended to inflict severe emotional distress or knew that there was at least a high probability that his conduct would inflict severe emotional distress. This is the proper standard to apply in an IIED case which arises in an employment setting. See Van Stan, 125 F.3d at 567. This court further concludes that the testimony of Plaintiff and Powell was sufficient to go to the jury on the issue of causation. This court also finds that sufficient evidence of outrageous conduct by Boyle was presented to go to the jury on the issue of whether Boyle's conduct constituted IIED. This court again concludes that Plaintiff's claim was not barred by the applicable statute of limitations because Plaintiff presented evidence that Boyle's actions continued until December 1992, and for torts involving a continued or repeated injury, the statute of limitations does not begin to run until the tortious conduct ends. This court also concludes that Plaintiff presented sufficient evidence on the issue of damages. Finally, this court adheres to its prior ruling at trial that Plaintiff's counsel adequately explained his actions regarding the interview of Sheets and there was no need to strike the testimony. In addition, this court agrees with Plaintiff's argument that Sheets' discussion of testimony with Plaintiff's counsel related to Sheets' experiences as a union employee when he worked with Plaintiff and did not relate in any way to Sheets' new managerial responsibilities.
Accordingly, for all of the reasons stated, ADM's Motion for Judgment (#365) is DENIED.
C. BOYLE ESTATE'S MOTION FOR JUDGMENT AND FOR NEW TRIAL
On November 1, 1999, the Boyle Estate filed a Motion for Judgment (#366) pursuant to Rule 50 of the Federal Rules of Civil Procedure and a Motion for New Trial (#368) pursuant to Rule 59 of the Federal Rules of Civil Procedure. The Boyle Estate first argues that this court erred when it set aside the March 4, 1999, verdict in favor of the Boyle Estate and against Plaintiff. The Boyle Estate contends that the March 4, 1999, jury verdict was amply supported by the evidence and the law. The Boyle Estate further argues that vacating the jury's verdict deprived it of its right under the Seventh Amendment to have the case decided by a jury. In support of this position, the Boyle Estate has cited Latino v. Kaizer, 58 F.3d 310, 314-15 (7th Cir. 1995); Matter of Innovative Constr. Sys., Inc., 793 F.2d 875 (7th Cir. 1986); and Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1348 (3rd Cir. 1991). In addition, on December 16, 1999, the Boyle Estate was allowed leave to file Supplemental Authorities in Support of this argument. In this document, the Boyle Estate argues that, under Illinois law, ADM could only be liable based upon the conduct of Boyle, and that neither could be liable once the jury found in favor of the Boyle Estate. The Boyle Estate argues that the verdict in its favor controlled the outcome as to ADM and thereby precluded any inconsistency. The Boyle Estate contends that, following the jury's March 4, 1999, verdict, this court was required to enter judgment in favor of the Boyle Estate and ADM.
This court notes that a new trial was ordered in this case because this court found that the jury instructions regarding the burden of proof on both the claim against the Boyle Estate and the claim against ADM were confusing. This was because the instructions used the terms "Estate of Art Boyle," "Defendant," and "individual Defendant" with no clear explanation of the entity actually referred to in the instructions. This court noted that the Boyle Estate was the Defendant because Art Boyle had died, but Plaintiff's claims were based upon the actions of Art Boyle while he was alive.
This court concluded that the instructions were unclear and may have confused the jury. This court therefore ordered a new trial because the misleading instructions prejudiced Plaintiff. In addition, this court noted that the jury's verdict in favor of the Boyle Estate and against Plaintiff and in favor of Plaintiff and against ADM were legally inconsistent.
For this reason, the jury instructions given at the second trial clearly defined the terms used to refer to the various entities in the instructions.
A district court has great discretion in determining whether to order a new trial. Latino, 58 F.3d at 314. Further, this is not a situation where a new trial was ordered because this court disagreed with the jury's verdict. Cf. Latino, 58 F.3d at 314-15. None of the cases cited by the Boyle Estate involved a situation where the trial court concluded that the jury was improperly instructed. Cf. Allen v. Green Acres Farm, Inc., 396 F. Supp. 442 (N.D.Ill. 1975); Hayes v. Chicago Tel. Co., 75 N.E. 1003 (Ill. 1905); Rogina v. Midwest Flying Serv., Inc., 60 N.E.2d 633 (Ill.App.Ct. 1945). That is the situation here. This court concludes that a new trial was properly ordered in this case because the jury instructions were misleading, unclear and may have confused the jury to the prejudice of Plaintiff. See Humphrey v. Staszak, 148 F.3d 719, 723 (7th Cir. 1998). This court further believes that a new trial was warranted because the verdict rendered following the improper jury instructions was inconsistent and could not stand. See Turyna v. Martam Constr. Co., 83 F.3d 178, 181-82 (7th Cir. 1996). Consequently, this court is not persuaded that it abused its discretion when it ordered a new trial in this case.
The Boyle Estate also argues that it is entitled to judgment because Plaintiff's cause of action against it was barred by the applicable two-year statute of limitations and because Plaintiff failed to prove that: (1) Boyle's conduct was extreme and outrageous; (2) Boyle acted with a specific intent to inflict severe emotional distress; and (3) the conduct of Boyle, as opposed to that of third parties, was the actual and proximate cause of Plaintiff's claimed emotional distress.
In its Motion for New Trial, the Boyle Estate argues that this court erred when: (1) it determined that Plaintiff did not have to prove that Boyle acted with a specific intent to inflict severe emotional distress; (2) it determined that Boyle could be liable for the misconduct of Plaintiff's co-workers which took place on his shift or in his presence; (3) it allowed the jury to consider evidence of conduct which took place before July 18, 1992; (4) it allowed testimony regarding the conduct of co-workers toward Plaintiff which was not connected to Boyle; (5) it allowed the metal desk to be received into evidence and published to the jury; (6) it allowed Plaintiff's expert, Powell, to testify on the issue of causation and Plaintiff's history of events involving Boyle and co-workers; (7) it assisted in the direct examination of Plaintiff; (8) it instructed the jury on proximate cause, the burden of proof, and damages, including costs of counseling; and (9) in giving the jury the verdict form used.
This court concludes that it was within its discretion to ask Plaintiff a question (see Rule 614 of the Federal Rules of Evidence) and further concludes that the Boyle Estate is not entitled to a new trial on this basis. This court has previously addressed all of the other arguments raised by the Boyle Estate and is not persuaded to change its rulings.
For the reasons previously stated on the record in this case, the Boyle Estate's Motion for Judgment (#366) and Motion for New Trial (#368) are DENIED.
D. MOTION FOR REMITTITUR
On October 22, 1999, the jury awarded the following damages to Plaintiff for IIED: $1,030,000 for past and future lost salary and benefits; $2,500,000 for pain, suffering and emotional distress; and $5,000 for costs of counseling. This court entered judgment on the jury's verdict.
On November 5, 1999, ADM filed a Motion for Remittitur (#370) seeking a reduction in the damages awarded to Plaintiff. On November 8, 1999, the Boyle Estate joined in the Motion (#373).
Defendants first note that Plaintiff's economic expert, Dr. Thomas W. Langford, testified that Plaintiff's lost wages and benefits totaled $1,020,381.94. Nevertheless, the jury awarded $1,030,000 for past and future lost salary and benefits. Defendants argue that this amount should be reduced by $9,618.06 to conform to the evidence. Plaintiff agrees that the amount awarded by the jury should be reduced to $1,020,381.94. Accordingly, this court hereby reduces by $9,618.06 the amount awarded for lost salary and benefits.
Defendants next argue that the evidence does not support an award of $2,500,000 for pain, suffering and emotional distress. Defendants contend that there is no rational connection between the award and the evidence. Defendants argue that there were many causes for Plaintiff's emotional distress, including his service in Vietnam, his failure to take prescribed medication and the abuse Plaintiff may have suffered from ADM employees other than Boyle. Defendants conclude that the pain, suffering and emotional distress directly caused by Boyle, as shown through the evidence, cannot amount to $2,500,000.
A damages award should be vacated only if it is "monstrously excessive," considering whether it is out of line with verdicts in similar cases or if it bears no rational connection to the evidence. Miksis v. Howard, 106 F.3d 754, 764 (7th Cir. 1997). Defendants have cited cases where courts have held that an award for emotional injury was too high based upon the evidence. See Merriweather, 103 F.3d at 580 ($25,000 for emotional injury in retaliatory discharge case found to be inflated and remitted by $6,250); Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1228-30 (7th Cir. 1995) (in case where back wages were awarded for a violation of the Fair Labor Standards Act, court reduced $21,000 award for emotional distress to $10,500); Neal v. Honeywell Inc., 995 F. Supp. 889, 894-95 (N.D.Ill. 1998), aff'd, 191 F.3d 827 (7th Cir. 1999) (in whistle blower case, $550,000 award for emotional distress reduced to $200,000); Lawyer v. 84 Lumber Co., 991 F. Supp. 973, 976 (N.D. Ill. 1997) (award of $75,000 for emotional distress in racial discrimination case reduced to $50,000); Williams v. Pharmacia Inc., 956 F. Supp. 1457, 1472-75 (N.D.Ind. 1996), aff'd, 137 F.3d 944 (7th Cir. 1998) ($250,000 award for emotional distress in employment discrimination case monstrously excessive and reduced to $40,000).
In response, Plaintiff has cited cases where multi-million dollar awards for pain and suffering have been upheld. However, all of the cases cited by Plaintiff involve pain and suffering associated with serious physical injuries. See Miksis, 106 F.3d at 764-65 (court upheld $10,000,000 award to plaintiff who was knocked to the ground from the bucket of an aerial lift truck and sustained severe injuries including brain damage and the loss of control of both legs); Gorlikowski v. Tolbert, 52 F.3d 1439, 1447-48 (7th Cir. 1995) (jury's award of $1,425,000 to plaintiff who suffered knee injury not monstrously excessive); DeBiasio v. Illinois Cent. R.R., 52 F.3d 678, 687-89 (7th Cir. 1995), cert. denied, 516 U.S. 1157 (1996) ($4,201,000 in damages, including $1,500,000 for pain and suffering, not excessive where railroad worker's arm caught under wheels of train car, causing amputation of the arm at the shoulder); Frazier v. Norfolk W. Ry. Co., 996 F.2d 922, 925-26 (7th Cir. 1993) (court upheld $2,300,000 award, including $1,000,000 for past and future pain and suffering, to railroad worker who suffered serious injury to his back).
In short, neither side has cited a similar case for comparison. In fact, the court in Avitia noted the distinction between cases, such as those cited by Defendants, where damages for emotional distress are claimed in a suit charging a different tort and claims for IIED where the plaintiff is required to prove that the emotional distress inflicted was severe. See Avitia, 49 F.3d at 1228-29. To prove a claim of IIED, a plaintiff must prove: (1) defendants' conduct was extreme and outrageous; (2) defendants intended to inflict severe emotional distress or knew there was a high probability that the conduct would cause such distress; and (3) defendants' conduct did, in fact, cause severe emotional distress. See Doe v. Calumet City, 641 N.E.2d 498, 506 (Ill. 1994); Hawkins v. Mathus, 1999 WL 966128, at *4 (N.D.Ill. 1999). IIED is difficult to prove and is a tort for which damages are not easily assessed. Kohlmeier v. Shelter Ins. Co., 525 N.E.2d 94, 103 (Ill.App.Ct. 1988), app. denied, 530 N.E.2d 247 (Ill. 1988). The tort of IIED was first recognized by the Illinois Supreme Court in Knierim v. Izzo, 174 N.E.2d 157, 165 (Ill. 1961). The court in Knierim noted that the conduct of the defendant in intentionally causing a severe emotional disturbance is outrageous in nature and is characterized by "wantonness, malice, oppression or circumstances of aggravation." Knierim, 174 N.E.2d at 165. The court then stated that "punitive damages cannot be sanctioned as an additional recovery in such an action. Since the outrageous quality of the defendant's conduct forms the basis of the action, the rendition of compensatory damages will be sufficiently punitive." Knierim, 174 N.E.2d at 165. Accordingly, Illinois law precludes an award of punitive damages for IIED. Hawkins, 1999 WL 966128, at *4 (citing Knierim, 174 N.E.2d at 165).
Based upon the above cited case law, this court concludes that, if a plaintiff succeeds in meeting the difficult burden of proving his claim of IIED, the plaintiff is entitled to substantial damages. Compensatory damages for IIED may be "sufficiently punitive" to adequately compensate a plaintiff for the "outrageous quality of the defendant's conduct." See Knierim, 174 N.E.2d at 165; see also Swick v. Liautaud, 662 N.E.2d 1238, 1247 (Ill. 1996) (McMorrow, J., specially concurring).
In this case, the jury found that both the Boyle Estate and ADM were liable for IIED. This finding was based upon evidence of outrageous conduct by Boyle over the course of many years and the profound, debilitating effect this conduct had on Plaintiff's emotional health. It is interesting to note that the jury in the first trial awarded $2,000,000 in damages for pain, suffering and emotional distress for the IIED claim and an additional $1,500,000 in damages for pain, suffering and emotional distress under the ADA. The second jury awarded a similar amount. This court shares the Illinois Supreme Court's faith in the ability of jurors to assess the evidence based upon their own experience and "`determine whether . . . conduct results in severe emotional disturbance.'" Corgan v. Muehling, 574 N.E.2d 602, 609 (Ill. 1991) (quoting Knierim, 174 N.E.2d at 165). Based upon the large awards made by two juries considering the evidence of severe emotional distress presented in this case, this court is not persuaded by Defendants' argument that the evidence does not support the jury's award of damages for pain, suffering and emotional distress.
Accordingly, this court concludes that there is a rational connection between the jury's award and the evidence and that the jury's award was not "monstrously excessive." This court additionally notes that Defendants have failed to show that the award was out of line with verdicts in similar cases.
This court again notes that the cases cited by Defendants are not similar in any way because they discuss damages for emotional distress incidental to another cause of action and not damages for pain, suffering and emotional distress awarded for IIED. See Avitia, 49 F.3d at 1228-29. The only case this court has found which is even remotely similar is Landis v. Landis, 664 N.E.2d 754 (Ind.Ct.App. 1996), where the appellate court upheld an award of $2,175,000 in compensatory damages for IIED. Based upon the applicable standard, this court denies Defendants' request for a remittitur of the damages awarded to Plaintiff for pain, suffering and emotional distress.
Defendants also argue that the evidence does not support the jury's award of $5,000 for the costs of counseling. Plaintiff argues that Powell's testimony regarding the Plaintiff's costs for each counseling session as well as how often he was seeing Plaintiff was sufficient to support the jury's award. This court agrees with Plaintiff.
Finally, Defendants contend that this court should reduce the amount of the judgment on Plaintiff's IIED claim by the $565,000 already awarded under the ADA. Defendants argue that this reduction is necessary to avoid a double recovery for Plaintiff. Plaintiff agrees that the $5,000 awarded for costs of counseling duplicates a portion of the $25,000 award under the ADA for counseling costs. Also, Plaintiff agrees that the judgment should be conditionally reduced as to lost past and future wages in the amount which is duplicative. Plaintiff does not dispute that the entire $240,000 back pay award under the ADA is duplicative of the lost back salary awarded by the jury on Plaintiff's IIED claim. However, Plaintiff argues that the remaining $300,000 awarded under the ADA is not duplicative. This court disagrees because the $300,000 was awarded for lost future earnings and for pain, suffering and emotional distress. The damages awarded to Plaintiff for his IIED claim amply compensate Plaintiff for these elements of damages. Therefore, this court concludes that Plaintiff is not entitled to duplicate damages under the ADA. Accordingly, this court orders that the judgment entered on the IIED claim be reduced in the amount of $545,000. This court agrees with Plaintiff that this reduction is conditional and should not occur if the Seventh Circuit reverses the ADA judgment.
IT IS THEREFORE ORDERED THAT:
(1) Plaintiff's Motion to Reconsider Ruling on Front Pay Under the ADA (#374) is DENIED.
(2) ADM's request that social security disability benefits received by Plaintiff be offset from Plaintiff's award of back pay under the ADA is DENIED.
(3) Plaintiff's Motion for Prejudgment Interest (#273) on the award of back pay under the ADA is GRANTED. Prejudgment interest is awarded in the amount of $42,728.54.
(4) Plaintiff's Petition for Attorney Fees (#279) is GRANTED. However, this court, in its discretion, has not awarded the full amount of attorney fees requested. For the reasons stated in this Order, this court awards attorney fees in the amount of $69,313.50 for Leahy's time, $106,293.75 for Renner's time, and $5,350 in paralegal fees, for a total of $180,957.25. This court also awards costs in the amount of $11,225.09. The total award on Plaintiff's Petition for Attorney Fees is $192,182.34.
(5) ADM's Motion for a New Trial (#364) is DENIED.
(6) ADM's Motion for Judgment (#365) is DENIED.
(7) The Boyle Estate's Motion for Judgment Notwithstanding the Verdict (#366) and Motion for New Trial (#368) are DENIED.
(8) ADM's Motion for Remittitur (#370) and the Boyle Estate's Joinder in the Motion for Remittitur (#373) are DENIED as to the damages awarded on the IIED claim for pain, suffering and emotional distress. However, the award on the IIED claim for past and future lost salary and benefits is reduced in the amount of $9,618.06 to conform to the evidence. Further, the judgment entered on the IIED claim is reduced in the amount of $545,000 because duplicative damages were already awarded under the ADA. Accordingly, the judgment on the IIED claim is reduced from $3,535,000 to $2,980,381.94. The $545,000 reduction is conditional and will not occur if the Seventh Circuit reverses the ADA judgment on appeal.
(9) The total final judgment entered in this case is $3,780,292.82, itemized as follows:
(a) $565,000 under the ADA;
(b) $42,728.54 in prejudgment interest;
(c) $192,182.34 in attorney fees and costs;
(d) $2,980,381.94 on the IIED claim.
(10) This case is terminated. Because there are no remaining pending issues in the case and his case may now be appealed, ADM's Motion to Withdraw Record (#399) is GRANTED.