The best hearsay evidence of all-time surfaces in the Led Zeppelin plagiarism lawsuit

Hearsay is a legal concept that non-lawyers use all the time without understanding its meaning. Hearsay is another way to describe gossip, or second-hand information. That does define hearsay, but people may not realize that even explosive hearsay is suspect because you cannot cross-examine it. This is why hearsay is inadmissible at trial. But some hearsay is too good to ignore. The best hearsay in the history of American law surfaced in the lawsuit alleging that Led Zeppelin stole the riff for Stairway to Heaven.

The case is Skidmore v. Led Zeppelin, decided by the Central District of California on April 8. Skidmore is the trustee for a rock star who passed away years ago, Randy Wolfe, who wrote a song called Taurus for the band Spirit. Taurus was written in 1967. Stairway to Heaven was released in 1971. For some technical reasons, Spirit is allowed to sue Stairway to Heaven after all these years.

Here is a comparison of the two songs:



Parts of Stairway to Heaven sound like Taurus. The trial court decides that the jury must determine if Jimmy Page and Robert Plant stole Taurus to write Stairway to Heaven. There is a lot of money at stake. Stairway to Heaven has been played hundreds of trillions of times on the radio since 1971. Any plagiarism finding against Led Zeppelin will likely cause that band's expulsion from the Rock and Roll Hall of Fame, just as Barry Bonds will never be elected to the Baseball Hall of Fame for using steroids. Or not. But a finding against Page and Plant will hurt their reputation.

Led Zeppelin denied any plagiarism, and Page and Plant claim they never heard Taurus before they recorded Stairway to Heaven. While Led Zeppelin and Spirit seem to have played at the same rock festivals in the late 1960s and early 1970s, Page and Plant claim they never got to know Spirit's band members. They also said they never heard Spirit's music during those encounters. The Spirit witnesses say otherwise.

In order to win the case, Spirit has to show that Led Zeppelin had direct access to Taurus or that Stairway to Heaven is substantially similar to Taurus. In the end, the court finds the jury may believe the songs are substantially similar to permit the finding that Led Zeppelin lifted Taurus for Stairway to Heaven. The jury cannot find direct access, the court says, in part because Spirit's evidence on this point is hearsay. The court may be right on the hearsay issue, but this is great hearsay: "Plaintiff introduces the testimony of Tracy Longo, Wolfe's longtime friend, who recounted a story Wolfe told him: apparently in 1968 or 1969, Page asked Wolfe to teach him the opening notes for Taurus." It is those opening notes that provide the very basis for this lawsuit.

The jury will never hear Longo's testimony because it is hearsay. That's because Longo would not really be testifying. Wolfe would be testifying through Longo. But Wolfe has died, and no one can cross-examine Wolfe about what he said about Page asking how to play Taurus. And that's how hearsay works. Had this lawsuit been filed in the 1970s, when Wolfe was still alive, he could have testified to this conversation with Page. As good as it is, Longo's testimony about what Wolfe told him is hearsay. Great hearsay, for sure, but hearsay all the same.

Bergstein & Ullrich prevail in pregnancy discrimination appeal in 2d Circuit

Circuit Reinstates Pregnancy Bias Suit Against Ulster Jail

Mark Hamblett, New York Law Journal April 28, 2016
 
A new trial has been ordered for a corrections officer who alleged she suffered discrimination because superiors at the Ulster County Jail would not assign her light duty while she was pregnant.

The U.S. Court of Appeals for the Second Circuit on Tuesday reversed a lower court judge who had dismissed the case that corrections officer Ann Marie Legg brought against Ulster County and County Sheriff Paul VanBlarcum.

The reason for reinstating Legg v. Ulster County, 14-3636, was a change in the law by the U.S. Supreme Court, the circuit said.

Legg had brought claims under Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978, 42 §2000e, saying the jail, which allows light duty for employees injured on the job, should have treated her in the same way.

Light duty meant a shift to clerical or other work that does not aggravate the employee's condition. Legg had her doctor send a note to the sheriff in 2008 saying Legg had a high-risk pregnancy and "was able to work but shouldn't have direct contact with inmates."

VanBlarcum told Undersheriff Frank Faluotico to deny the request and, on July 10, 2008, Faluotico told Legg the light duty policy was only for employees injured on the job. He allegedly urged her to be re-evaluated by her physician and suggested she use accrued time off and file for disability.
On the same day, Legg was informed by Lt. Jon Becker that he would assign her to light duty after she provided a doctor's note that said she was "able to work with no restrictions."

By August, she was back to working with inmates again. In November, while about seven months pregnant, Legg saw two inmates fighting in a bathroom. One of the inmates bumped into her as he ran out of the bathroom. She left work, went home and did not return to the jail until after she gave birth.

She sued in the Northern District and, after the close of her direct case, Judge Frederick Scullin granted a defense motion for judgment as a matter of law, finding the policy was not discriminatory because it was facially neutral with respect to pregnancy.

Legg appealed to the Second Circuit and, during her appeal, the U.S. Supreme Court handed down its opinion in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015).

Judge Barrington Parker, writing for the circuit, explained that Young found that the Pregnancy Discrimination Act is violated when pregnant employees are treated "'less favorably' than non-pregnant employees similar in their ability or inability to work to such an extent that it is more likely than not that the disparity is the result of intentional discrimination."

Parker said Young modified burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for Title VII claims of pregnancy discrimination to put the focus on "'whether the nature of the employer's policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination'."

Under this analysis, if a plaintiff establishes a prima facie case that it was more likely than not an action was discriminatory, a presumption of discrimination arises, and the burden shifts to the employer to show a legitimate, non-discriminatory reason for the action. If the employer does so, the presumption is gone, and it is then up to the plaintiff to establish by a preponderance of the evidence that the justification was merely a pretext for actual discrimination.

Legg established a prima facie case, but the county answered with what Parker called an apparently "neutral" reason for limiting light duty to those injured on the job —N.Y. General Municipal Law §207-c(1), which requires that correction officers continue to be paid after being injured on the job.
With the burden now back on Legg, Parker said she had presented enough evidence that a reasonable jury could find this justification was a pretext. He said it was only now that the "neutral" reason cited by the county came to light, as "neither VanBlarcum, nor anyone else, ever testified that this was his reason for denying accommodations to pregnant employees."

Legg, the Circuit concluded, had enough to get to trial under Young.

Judge Parker

"A reasonable jury could conclude that the defendants imposed a significant burden on pregnant employees because, like UPS, the County categorically denied light duty accommodations to pregnant women," Parker said.

The court rejected the defense "implication" that an employer can justify pregnancy discrimination by relying upon the fact that pregnant employees constitute an insignificant part of its workforce. Nor did it accept the argument that Legg was not significantly burdened because she was able to perform her regular duties and then elected to stop working—an argument belied by the facts.

"Moreover, regardless of Legg's particular circumstances, we think that when an accommodation policy excludes pregnant employees from coverage and thereby places them at risk of violent confrontations, a reasonable jury could find that the denial itself is evidence of a significant burden," Parker said in a ruling joined by Judges Gerard Lynch and Susan Carney.

Stephen Bergstein of Bergstein & Ullrich in Chester; Brendon Klaproth of Klaproth Law in Washington, D.C.; and Joseph Ranni of the Ranni Law Offices in Florida, New York, represented Legg.

Bergstein said he is looking forward to trial. "This is the first time our Court of Appeals has applied Young," he said. "The opinion is pretty clear about what happened here."

Matthew Kelly and Amanda Davis Twinam, partners at Roemer Wallens Gold & Mineaux, represent the county. Kelly said Wednesday the county is confident of prevailing at trial.

"The opinion does set forth that the county has regularly had a policy of accommodating people with on-the-job injuries and not off-the-job injuries and even at the trial, the county can present that position," Kelly said. "Having a policy that was nondiscriminatory, we will be found to have not discriminated against Miss Legg; we have a number of people who are hurt off the job who are not allowed light duty and because we have this uniformity of approach, we believe our position is fully defensible."

Read more: http://www.newyorklawjournal.com/printerfriendly/id=1202756138844#ixzz477yQSZcu

Preserve that testimony!

Reading a torts decision from Judge Calabresi is like watching George Brett taking batting practice. Judge Calabresi is a scholar of American torts law, and he does not write up a torts ruling with the sort of brief and conclusory holdings that the state appellate courts have mastered. In this case, we learn why a woman who fell at a Target after using a potentially defective door cannot recover damages for her injuries.

The case is Reginella v. Target Corp., decided on April 18. Gustafson tried to use a restroom door at Target but fell to the ground and broke her hip. Her family -- which prosecutes the case after Gustafson passed away -- says the door closed too fast, causing her to fall. There is no direct evidence linking her injuries to the door, so the Court of Appeals applies a three-factor causation test:

First, was there evidence of negligence or a defect on defendant’s part, and, if there was, did that negligence or defect increase the chances of plaintiff’s injury occurring, and by how much? That is, how strong was the circumstantial evidence of causation? Second, which party is better placed to tell us whether the negligence or defect was in fact likely to be a cause of the injury or whether the injury would have happened regardless of the negligence or defect? And third, has the relevant jurisdiction, for example, by its statements as to the level of duty owed by the parties, indicated a preference in favor of or against liability in the given context?

This case focuses on the first two factors. While plaintiffs' expert reports suggest the door was defective, they do not assert that was likely to have caused the accident. At this point, Judge Calabresi detours into an historical discussion of tort law in New York, as created by Judge Cardozo, a New York judicial legend. The law today holds that "circumstantial connections between a defendant’s negligence and the harm that occurred have been deemed enough to raise a question for the jury, not only when the defendant has greater knowledge of what in fact occurred, but even when neither side can tell us what happened."

Here, there is no direct evidence linking the door with Gustafson's injury. The circumstantial evidence is also weak. Case law holds that "even the weak circumstantial evidence connecting defendant’s alleged negligence and Gustafson’s fall might in New York be enough to let this case go to the jury if the defendant were as well or better placed to tell us what, in fact, had likely happened." But Gustafson was in a good position to tell us what happened. The problem is she did  not provide that testimony before she died. Judge Calabresi states with disapproval that her lawyer "made a strategic decision not to obtain and her preserve her testimony prior to her death." This means "the link between defendant's purported negligence and Gustafson's injury is too weak to permit a jury to conclude that Target's asserted negligence cause Gustafson's fall and injury."

Why did plaintiff's counsel not preserve her testimony in the two-year period before she died? According to the opinion,

Plaintiff’s counsel explained his failure to preserve Gustafson’s testimony over this nearly 26-month period as follows: “There could be a strategy why I would not want to have—to preserve her testimony. . . . It’s just that—without making light of it, Judge, sometimes the plaintiff’s best witness is a dead witness.”

All FLSA settlements require judicial approval

I totally overlooked this case when it came down in August 2015, but it's worth revisiting now because it affects everyone who handles wage and hour cases under the Fair Labor Standards Act.

The case is Cheeks v. Freeport Pancake House, 796 F.3d 199, decided on August 7, 2015. The FLSA guarantees you a minimum wage and overtime if you work more than 40 hours a week. There are exceptions to these rules, but it applies to most working people. Sometimes, these cases are worth a fortune, i.e., if the employer denies minimum wage or overtime to large numbers of employees who can bring a collective action. Single-plaintiff cases are not as lucrative, and they most often settle, usually when it seems clear the plaintiff's rights were violated or the case simply does not have great value.

When cases settle in federal court, the lawyers so advise the court, which will allow the parties to dismiss the case on their own, subject only to the judge's signature. The judge does not second-guess most settlements. If the parties think the settlement is fair, then that's good enough for the judge. But there are exceptions to this rule. The question in this case is whether the court has to independently approve FLSA settlements, even if the parties want to settle the case for a certain amount.

This issue has not arisen before in the Supreme Court or the Second Circuit, which takes up the issue now for the first time. The parties settled the case, but the district court would not agree to the settlement without additional information in the form of affidavits and other documents to show the settlement was a fair deal for the plaintiffs. The parties appealed from that order. Complicating things is that plaintiff and defendant challenged the district court's ruling, so the Court of Appeals had to ask the U.S. Department of Labor for input on the appeal to ensure that the pros and cons of this issue were sufficiently provided to the Second Circuit.

The Court of Appeals (Pooler, Parker and Wesley) now says that Fed. R. Civ. P. 41 requires judicial approval of all FLSA settlements, including the small ones. The rationale is that employees who bring these cases, even if they have lawyers, "often face extenuating economic and social circumstances and lack equal bargaining power; therefore, they are more susceptible to coercion or more likely to accept unreasonable, discounted settlement offers quickly." In addition, "without judicial oversight, employers may be more inclined to offer, and employees, even when represented by counsel, may be more inclined to accept, private settlements that ultimately are cheaper to the employer than compliance with the [FLSA]."

Cousin shafts cousin

This case resonates with me because it involves an elementary contract issue that I dealt with as a first-year law student in one of our first role-playing exercises: past consideration to support a contract. The case is also interesting because it betrays a shocking failure to live up to a promise that would have netted someone a lot of money. And it involves people who are related to each other.

The case is Greenberg v. Greenberg, a summary order decided on April 15. One of the first things you learn in Contracts 101 is that a contract is not enforceable in court unless you have offer, acceptance and consideration. Consideration is another way of saying "bargained-for exchange." So if Arthur wants Frankie to paint his house, Arthur offer Frankie $3,000. That offer will induce Frankie to say yes. The $3,000 is consideration. We normally think of consideration as a present-tense event: the parties discuss offer and acceptance and consideration at the same time

But the law in New York also recognizes you can have a contract based on past consideration, but in limited circumstances. The contract must be in writing, and the past consideration must have been performed or given. "The recitation of consideration must not be vague or imprecise."

Having gotten the boring stuff out of the way, let's take a look at how this plays out in real life. Derrick Greenberg was badly hurt in an accident and had a lawsuit against someone. He promised to give cousin Marshall Greenburg $200,000 if that case settled. This was payback for Marshall's having given Derrick "many gifts and many loans" in the past. They put this in writing. They wrote: "This is a legal written document, agreement and/or contract that cannot be broken and or terminated by anyone including immediate family."

Is there any doubt that Marshall and Derrick agreed to this "contract"? They even stipulated that the agreement was in fact a contract and could not be breached in any way. Yet, the Court of Appeals says it is unenforceable. How did the case reach the Court of Appeals? Derrick decided not to give Marshall the money, for whatever reason. Marhsall wants the money. He will not get it. The Court of Appeals (Pooler, Livingston and Lohier) says that the agreement does not satisfy the strict rules governing past-consideration contracts because "the past consideration in the contract was not sufficiently expressed to fall within the confines" of New York law.

There was once a time in the distant past when Marshall and Derrick got along and were friendly and acted like loving cousins who looked out for each other. Marshall apparently looked out for Derrick over the years. Marshall was counting on that money. He thought the contract was worth the paper it was printed on. It was not.

What happens when plaintiff untimely asks the court to reinstate a case that did not settle?

This is for civil procedures junkies, only. The Court of Appeals untangles what to do when the parties have reached a preliminary settlement but the settlement falls through and the plaintiff waits too long to have the case restored to the docket. In the litigator's world, deadlines are deadlines, and we live and die by them. In this case, the Court of Appeals gives the plaintiff a break.

The case is Hoefer v. Board of Education of the Enlarged City School District of Middletown, decided on April 14. In this free speech case, where the plaintiff claims he was kicked out of a public meeting for speaking his mind, the district court granted summary judgment to some defendants, dismissing the claims against them. Plaintiff then reached a tentative settlement with the remaining defendant, Eastwood. The court discontinued the case but said it could be restored to the calendar if the parties did not settle within 60 days.The 60 days came and went. Along the way, the case did not settle and the plaintiff did not timely ask the court to reinstate the case. So the district court dismissed the case. On appeal, plaintiff challenges the earlier summary judgment ruling and the later order dismissing the case.

The Court of Appeals (Sack and Stanceu, [visiting judge] with Droney dissenting) says it has no jurisdiction to review the earlier summary judgment ruling, as that was an interlocutory decision that could not be appealed until the entire case was resolved, as per federal practice. I would think that the district court's second order, dismissing the case in its entirety for failure to timely reinstate the case that did not settle, would be a final order that allows you to appeal all prior rulings. But that is not the  case. The final order, "rather than entering partial summary judgment on the merits to adjudicate the false arrest claim against Eastwood, dismissed that claim for failure to seek timely reinstatement. That was the only final decision the district court reached with respect to the false arrest (and other) claims, and, therefore, the only decision over which we may exercise appellate jurisdiction." In other words, the earlier summary judgment ruling did not merge with the later dismissal order allowing plaintiff to appeal, as it never ripened into a judgment and had no effect on the outcome of the case. This is a very complicated issue that few of us will be able wrap our hands around. My guess is that the time to appeal the earlier summary judgment order arrives when all issues in the case are resolved on the merits, which will likely happen since the claim against Eastwood is revived, as set forth below. But I could be wrong. It is possible that no one knows the answer to this question.

However, the dismissal order for failure to timely reinstate the case that did not settle was an abuse of discretion, and that case returns to the district court. Yes, plaintiff was 69 days late in telling the court that the case did not settle. "Although it may well have been prudent for Hoefer to have acted sooner, we conclude that the passage of 69 days, standing alone, does not justify the extreme sanction of involuntary dismissal." Moreover, there was no prejudice to defendants resulting from plaintiff's delay, and they did not even object when plaintiff sought reinstatement.

The right to be irrational

One distinction between the United States and a totalitarian state is that the government cannot drag us out of our homes and deny us our freedom without any reason. If the government wants to do this, it needs an excellent reason to do so. If you sue the government over an irrational seizure, the government cannot dismiss the case without producing evidence that it had good reason to do so. There is no such evidence in this case.

The case is Myers v. Patterson, decided on April 11. Someone called the child abuse hotline to report that plaintiff was acting in an eccentric manner with respect to her child at school.

According to the caseworker notes, the caller stated that the mother (i) had refused to sign emergency contact cards with a home phone number for DJM, (ii) had refused to sign permission slips for school trips, (iii) had written letters to the FBI with the school cc’ed, (iv) had “attended an award assembly where she only took notes,” (v) had made “unusual inquiries about  other children” at the school, and (vi) had grown  “furious” with the school when DJM’s father picked him up, demanding to see the father’s signature.

The investigation did not reveal much more than this, other than to show that plaintiff was a "super-mom" who was totally focused on her child. Mom never exhibited homicidal tendencies or a propensity for self-harm, the standard for involuntary seizure under the New York Mental Health Law. She was seized anyway even though she denied any strange behavior, stated the police would have to arrest her if they wanted to interview her daughter, and she was uncooperative and irrational. She sued the people who seized her, and the district court granted them qualified immunity, finding they acted reasonable under the circumstances.

Not so fast, the Court of Appeals (Jacobs, Leval and Calabresi) says, holding that the record is not sufficiently detailed to support the finding that these governmental actors acted reasonably. As the Second Circuit says, "A person may be annoyed, uncooperative, and irrational without presenting a danger to herself or of violence to others. Nor does Johnson's refusal to allow her child to be interviewed by authorities establish arguable probable cause to believe Johnson presented a risk of serious physical harm resulting from violent behavior." As the evidence here is too sketchy, the government has not made its case that it acted reasonably under the case circumstances, even if she was diagnosed with a delusional disorder and paranoid schizophrenia once she was involuntarily committed, and her parental rights were eventually severed by New York Family Court. But while the officer's instincts may have been correct when he seized plaintiff, "we cannot grant immunity for decisions merely because ex post they seem to have been good ones."

Assessing pain and suffering in employment discrimination cases (Part V)

Putting a dollar value on pain and suffering in civil rights cases is one of the trickiest parts of the job, both for the lawyers who have to advise their clients, and for the jurors who are asked to make a decision. The only way to assess these damages awards is to compare them with damages in other cases. Post-verdict, the courts have the opportunity to tell us what these cases are worth. This is one of those cases.

The case is Miller v. City of Ithaca, 3:10-cv-597 (GLS/DEP), 2015 U.S. Dist. LEXIS 168614 (N.D.N.Y. Dec. 17, 2015). This is a retaliation case brought under Title VII and state law. The jury said the City retaliated against plaintiff, a City police officer, in giving him undesirable beat assignments. The jury valued that case at $220,000. The jury also said the City gave plaintiff a retaliatory Notice of Discipline (NOD), awarding him $260,001 in damages for that claim. The City wants these awards reduced, so the district court applies the remittitur analysis.

Judge Sharpe notes that courts have devised "a three-tiered framework for gauging the excessiveness of emotional damage awards." The least severe "garden variety" damages range from $30,000 to $125,000. More significant emotional distress falls within the $100,000 to $500,000 range. "Significant claims are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." Bear in mind that the jury is not told about this framework. The court just tells the jury to give the plaintiff an amount that will fairly compensate her for the pain and suffering. This is why you see huge damages awards in the newspaper for some cases, and peanuts for other cases that are worth much more.

The $220,000 for the beat assignments is too high, Judge Sharpe says. "Miller's own testimony demonstrates that he suffered minimal symptoms as a result of the beat assignments change." In summarizing plaintiff's testimony, the Court writes:

I had had stress from the constant things that they did to me, and then the Notice of Termination was just -- it was like the nail in the coffin that just was the worst thing ever. I knew that they had -- as they said, tryin' to force me out one way or another, but I never thought that they would stoop to that level of retaliation. Miller's testimony clarified that the harm from the beat assignments change was "drastically different" from that of the NOD, with the former being less severe because he "still knew [he] had a job, still was workin', [he] had everything that [he] needed, so to speak, in terms of takin' care of [his] family." Miller explained that he "had some problems from when" his beats were changed, "[b]ut [he] was dealin' with it." Additionally, Miller claimed that he started to feel the effects of the beat assignments change on the night of July 20, which impossibly predated the change to his beats by three days. Miller's subjective testimony about the seemingly minimal effect that the change in beats had on him places the verdict as to that claim into the garden variety category. 

The judge reduces the pain and suffering for the beat assignments claim from $220,000 to $50,000. Anything more than that is a windfall, the Court says, based on sympathy for Miller.

The jury also gave plaintiff $260,001 for the NOD. The following summarizes Miller's evidence on his pain suffering from the NOD:

Miller offered proof that, as a result of defendants' liable conduct, he suffered sleeplessness, hypervigilance, depression, anger, erectile dysfunction, agoraphobia, aniexty, panic attacks, incontinence, shaking, headaches, fearfulness, weight loss, and drinking problems. He sought medical treatment and was prescribed medication in connection with his symptoms.  

This evidence will net you a lot of money at trial, if you prove your claim. As Miller suffered "significant" pain and suffering under the three-tiered damages model in the Second Circuit, the district court allows the $260,001 damages award to stand.

Valuing pain and suffering in employment cases (Part IV)

This is Part IV of my series of blog posts on pain and suffering. Someone needs to compile a summary of all pain and suffering awards in the federal courts in the Second Circuit. The judges sort of do this for us when they have to decide a post-trial motion analyzing a jury award. But these decisions of course do not summarize all the cases. Some scholars have written up summaries, but they are not always updated, and lawyers and parties are left to guess about what the cases are worth. This makes settlement talks difficult, both when talking with opposing counsel and with clients.

The case is Wharton v. County of Nassau,, No. 10-CV-0265, 2015 U.S. Dist. LEXIS 100308 (E.D.N.Y. July 30, 2015). Plaintiff alleged that defendants discriminated against him based upon his race and religion, and retaliated against him for complaining about defendants' discriminatory employment practices. For example, he claimed he was denied a religious accommodation in retaliation for complaining about discrimination. He also received a Notice of Personnel Action that accused him of misconduct on the job. The jury found in his favor and awarded him $375,000 in pain and suffering. What that too much money? The district court says "yes."

Here is the evidence on plaintiff's emotional suffering.

Wharton presented testimony at trial that the issuance of the [Notice of Personnel Action] and the Department's denials of time-off requests affected him emotionally. He testified that the Department's treatment made him feel "singled out" and "ostracized"--like he was "not really part of the team." Wharton also claimed that he was concerned about his safety at work after he received the NOPA.

Wharton's wife of thiry-eight years testified that Wharton's behavior at home changed after he received the NOPA. He "felt betrayed," she said, "[t]he trust from the department that he thought that he had wasn't there." According to his wife, Wharton's emotional problems manifested themselves physically--he wasn't as "interactive with the family," was less intimate with his wife, developed headaches, and had trouble sleeping.

To cope with his emotional issues, Wharton sought "pastoral counseling" from his bishop, Roger Clark Seaver, and from Reverend Algernon Hannah, an associate pastor at his church. Hannah testified that he knew Wharton for twenty-five to thirty years and provided religious counseling to him for a decade. Hannah testified that between 2007 and 2009 he observed that Wharton became "depressed about what was happening on the job." Hannah acknowledged, however, that he had no clinical training. On cross examination, Hannah admitted that Wharton never discussed any physical manifestations of his unhappiness. Hannah also admitted on cross-examination that Wharton's son had been arrested during the time he was feeling depressed at work and that Wharton felt embarrassed because of the incident.

Wharton also claimed that he was damaged professionally. He testified that his "professional relationship with coworkers [and] supervisors" became "tainted" and his "reputation with other clergy, [and] other volunteers" was also damaged. Wharton also asserted that the NOPA stunted his opportunity to get a master's certification as a chaplain, which he planned to obtain with the support of a religious organization. Finally, Wharton testified that he felt the NOPA "affected [his] opportunity for mobility within the department as far as promotions." However, Wharton admitted that he was not fined, demoted, suspended, or terminated.  Moreover, he had to take and pass an exam before he could be promoted from Corrections Officer to Corporal.

The courts have agreed upon a range of damages available to employment discrimination plaintiffs. "At the low end of the continuum are what have become known as 'garden-variety' distress claims in which district courts have awarded damages for emotional distress ranging from $5,000 to $35,000." You get these damages when "the evidence of harm was presented primarily through the testimony of the plaintiff, who describes his or her distress in vague or conclusory terms and fails to describe the severity or consequences of the injury." The middle of the spectrum, what we call "significant" damages, ranges from $50,000 to $100,000. "These claims differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." The "egregious" emotional distress claims, however, can be worth in excess of $100,000. But "more recently, Courts have sanctioned jury damages ranging from $30,000 to $125,000 for 'garden-variety' emotional distress." 

The judge reduces plaintiff's pain and suffering to $60,000, a sharp reduction from $375,000. Here is the reasoning:

Wharton was not demoted, fined, or terminated as a result of any of Defendants' actions. Although he claimed that the NOPA affected his promotion opportunities, he admitted that he did not pass the exam necessary to be promoted from corrections officer to corporal. Thus, his only compensable damages were for emotional distress. The evidence is clear, however, that Wharton's emotional distress did not rise above the garden-variety. Wharton and his wife testified that Defendants actions caused him to feel "ostracized," "betrayed" and concerned about his safety. Wharton's wife also testified that he "wasn't as interactive with the family," was less intimate, developed headaches, and had trouble sleeping. Reverend Hannah, who provided Wharton with "spiritual counseling," also testified that Wharton became "depressed," however, Hannah acknowledged that he had no clinical training, and admitted that Wharton never discussed physical manifestations of his unhappiness. Wharton never sought medical attention for emotional distress and did not introduce testimony from a medical professional. The evidence in this case therefore does not support the $375,000 in compensatory damages awarded by the jury, a verdict above and beyond damages awards in cases where plaintiffs suffered "significant" or "egregious" emotional distress.

Valuing pain and suffering in employment discrimination cases (Part III)

The great mystery in valuing civil rights cases is how much money the jury might award the plaintiff if the plaintiff prevails at trial. That calculation looms over the case. During litigation, the parties will talk about settlement periodically, especially after the judge pushes them to do so. Once the lawyer decides what the case might be worth (based on the strength of the case and the nature of plaintiff's emotional distress), she has to sell that number to the client, who will naturally want more money. Hey, we all want more money. Except that defendants don't want to pay any money. Everyone walks away unhappy, which makes it a good settlement. One way to assist in this process is by reviewing case law to see what the judges are up to.

The case is Stevens v. Rite Aid Corp., No. 6:13-CV-783, 2015 U.S. Dist. LEXIS 127312 (N.D.N.Y. Sep. 23, 2015). Plaintiff was a pharmacist who was fired because he was unable to administer injections for immunizations, and "suffers from trypanophobia, also called needle phobia." The jury awarded him $900,000.00 in pain and suffering.

This is how the parties argued post-trial about the pain and suffering: 

Defendant argues that the jury's verdict of $900,000 in compensatory damages is not supported by the evidence at trial, contending: "Plaintiff's alleged damages were solely for garden-variety emotional distress and are far beyond the maximum damages supported by the evidence at trial." Plaintiff counters that his emotional damages are supported by his own testimony about the emotional toll that his termination placed on him, particularly due to the facts that he was no longer able to financially provide for his family which was very troubling for him because he had a difficult childhood growing up in poverty; and by his wife's testimony that Plaintiff could not eat, lost weight to the extent that he "looked like, you know, a cancer patient," often woke up "thrashing around," had sleepless nights, and had nightmares - symptoms she described as "profound." Plaintiff argues that based on the Jury's $900.000.00 compensatory damage award, "the evidence in this case supports a finding that Mr. Stevens' claim for emotional distress fell somewhere on the continuum between 'significant' and 'egregious,' thereby justifying the Jury's award of $900,000 in compensatory damages in this case."

The judge decides that plaintiff is really entitled to $125,000 in pain and suffering. That number is in line with similar cases. As Judge McAvoy writes, "there was no medical testimony or evidence corroborating the emotional distress that Plaintiff suffered, nor was there evidence of any medical or psychological treatment obtained by Plaintiff to address his distress and its symptoms. While Plaintiff's and his wife's testimony about the emotional effects of a discharge at age 57 was compelling, it did not elevate it beyond the 'garden variety' category. 'Courts have sanctioned jury damages ranging from $30,000 to $125,000 for 'garden-variety' emotional distress.'" If you want to see the other cases that provided guidance in this area, take a look at the opinion. 

$125,000 is still a lot of money. But it's not $900,000. So I am sure the plaintiff is disappointed. But I wonder what the jury would think about this. The judge always tells the jury that "the case is in your hands" and "you are the sole judges of the facts." For the most part, that's true. When the summations are done and the judge reads out the jury instructions, the cases is in their hands. And most factual findings are not disturbed on appeal. But the jury has no idea that the damages awards will be closely reviewed by the attorneys and the court for the next few months (or longer) to decide if the jury really got it right. And very often, at least as far as the court is concerned, the jury does not get it right. The judge will not provide much guidance to help the jury fix a pain and suffering amount, other than to "give the plaintiff an amount that you think is fair." The jury is not given a chart containing prior damages awards, and it may not even know the judge will review the propriety of the damages post-trial. Nor does the jury give any reason for the damages award. It just writes in a number and turns in the verdict to the court clerk. What is really happening is that the damages awards for pain and suffering are quasi-advisory verdicts. The provide a starting point for the judge to second-guess the amount.  

Valuing pain and suffering in discrimination cases (Part II)

The late great federal judge Charles L. Brieant used to tell the lawyers who gathered for the weekly calendar calls that every case has to be "dropped, settled or tried." And if you were among the lawyers who showed up each Friday for a status conference, oral argument or a discovery dispute, you can still hear Judge Brieant's voice. He would say this with an air of resignation, that one way or another, each case has to proceed, unless the parties decide to bring it to a close. (What the judge did not mention was that there was a fourth option: cases could be dismissed on summary judgment).

At some point about 10 years ago, the SDNY decided to send every employment discrimination case to mediation. Most of these cases were settling after the parties had taken multiple depositions and exchanged documents. Why not try to resolve them at the early stages? Mandatory mediation meant that lawyers had to talk about settlement early in the process. That means we have to discuss dollars and cents. And the first thing that plaintiffs' lawyers discover in talking settlement with their clients is that everyone thinks his case is worth more than it is. Which is why it's good to see what the courts have to say about the dollar value of pain and suffering.

The case is Bouveng v. Nyg Capital LLC, 2016 U.S. Dist. LEXIS 44283 (S.D.N.Y. Mar. 31, 2016), a lengthy decision that followed a sexual harassment trial in which the jury awarded the plaintiff $500,000 on her quid pro quo sexual harassment claims under the state and federal law. Defendants then filed a motion to reduce that award as excessive. Judge Gardephe provides much guidance about what these cases are worth.

We start with familiar language that has made the rounds in the Southern and Eastern Districts of New York. 

[e]motional distress awards . . . can generally be grouped into three categories of claims: "garden-variety," "significant" and "egregious." In "garden variety" emotional distress claims, the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury. Such claims typically lack extraordinary circumstances and are not supported by any medical corroboration. "Garden variety" emotional distress claims generally merit $30,000 to $125,000 awards.

"Significant" emotional distress claims differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony and evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses.

Finally, "egregious" emotional distress claims generally involve either "outrageous or shocking" discriminatory conduct or a significant impact on the physical health of the plaintiff. In "significant" or "egregious" cases, where there is typically evidence of debilitating and permanent alterations in lifestyle, larger damage awards may be warranted.

This $30,000 to $125,000 range is not always the standard in the 2d Circuit. Other cases, as reflected in this blog post, place the garden-variety value at $5,000 to $30,000. So if you are a plaintiff's lawyer and defense counsel hits you with the lower range, remind him that other courts see it differently. The opposite holds true if you are defense counsel.

The district court summarizes plaintiff's evidence about her pain and suffering resulting from the sexual harassment and her termination:

Plaintiff testified that — when she submitted to Wey's sexual advances for the first time — she "felt so used and weak and . . . was so ashamed that [she] let [it] happen." After each subsequent sexual encounter, Bouveng "just felt more and more weak. That [she] didn't mean anything. That everything that [she] felt and thought, that it didn't matter. [She] felt useless" and "ashamed." Chemme Koluman testified that Plaintiff seemed "more stressed than usual" in February 2014, at about the time that Plaintiff decided to stop having sex with Wey.

There is also evidence that Plaintiff suffered emotional distress as a result of her termination from NYGG, which — a reasonable jury could have found — was caused by her rejection of Wey's sexual advances. Plaintiff testified that Wey's conduct at that time left her "in shock." Wey, Koluman, and Weiss testified that Plaintiff seemed, "angry," "upset," and "stressed" as a result of her termination. Wey's anger, screaming, use of profanity, and violent behavior on the day of Plaintiff's  termination , and the surrounding circumstances, tend to support the evidence indicating that Plaintiff suffered emotional distress as a result of her termination.

Plaintiff also testified that the flurry of emails Wey sent to her family and friends — which accused her of consorting with a "naked, dirty, totally drunk" "homeless black man," "par[tying] like crazy," and leading a "double life" — were "embarrassing" and "scary." Plaintiff felt that Wey was "[t]rying to humiliate [her] in front of [her] family," and "trying to make [her] look bad in front of everyone [she] know[s] in order to isolate [her]."  Plaintiff also felt "stressed . . . out" because of "the impact and effect [Wey's emails] had on [her] father." Plaintiff testified that Wey's emails "affected [her] a lot and . . . got [her] really upset, stressed, scared that [Wey] would keep on contacting [her father]."

Judge Gardephe does not minimize plaintiff's pain and suffering. He notes that "Wey's behavior — in the context of an employment relationship — was outrageous." But this is what we call "garden variety" emotional distress. As Judge Gardephe puts it, "Plaintiff described her emotional distress in largely 'vague or conclusory terms, without relating either the severity or consequences of the injury' in a meaningful way. Whatever emotional distress she suffered as a result of her termination appears to have been brief and transitory. There was no evidence of continued shock, nightmares, sleeplessness, weight loss, or humiliation, or of an inability to apply for a new position or to enjoy life in general. Plaintiff's claims of emotional distress were likewise "not supported by any medical corroboration.'" She also did not seek mental health treatment. Nor did she appear to suffer long term emotional distress as a result of the discrimination.

After reviewing other sexual harassment cases where the jury awarded damages, the judge concludes that the jury gave her too much money. "Because cases 'approving multi-hundred-thousand dollar awards for emotional damages all involve post-traumatic stress disorder' or medical evidence of some other psychological harm, the jury's $500,000 award cannot stand. Moreover, sexual harassment cases that have sustained awards greater than $150,000 have generally involved pervasive harassment that took place over a number of years." The judge settles on $150,000 for plaintiff. Here's the reasoning:

Because (1) much of Plaintiff's testimony regarding her emotional distress is "vague or conclusory"; (2) there is almost no evidence of any sort that Plaintiff has suffered any long-term emotional distress; (3) Plaintiff offered no medical corroboration for her emotional distress, and Defendant offered medical testimony demonstrating that Plaintiff has suffered no long-term consequences from Wey's sexual harassment, this Court concludes that an award of $150,000 constitutes "the maximum that [can] be upheld . . . as not excessive" on her sexual harassment claims. This amount will compensate Plaintiff for the emotional distress, humiliation, embarrassment, and stress she suffered for a number of months as a result of Wey's outrageous sexual harassment, but recognizes the absence of evidence suggesting any long-term effects or consequences.

How do we put a dollar value on pain and suffering? (Part I)

The courts routinely tell us what civil rights cases are worth, but you have to go out of your way to see the trends in compensatory damages (as opposed to lost wages and other out-of-pocket damages that are easier to calculate). How do you put a price on pain and suffering? This recent EDNY case offers some guidance.

The case is Styka v. My Merchants Services, 14 Civ. 6198, 2016 U.S. Dist. LEXIS 34238 (E.D.N.Y March 15, 2016). Plaintiff sued her former employer for sexual harassment and other violations. The employer defaulted, so the court found liability for the plaintiff. The trial court then heard evidence on damages. The Magistrate Judge summarizes the evidence as follows:

After Plaintiff started working for Defendant My Merchants Services, Mr. Valerios began making racially discriminatory comments, saying that Plaintiff was his "white Polish girl" and "whitey reddish girl," and calling her a "Polack."  He made these comments every day and in front of Plaintiff's coworkers and the company's clients. One month into her employment, Mr. Valerios began directing sexual comments at Plaintiff, including saying that he wanted to touch and have sex with Plaintiff. Plaintiff testified that he made these comments daily. At one point, Mr. Valerios offered to pay Plaintiff more money if she would agree to have sex with him once per week. Mr. Valerios also made sexual comments daily to Plaintiff via text message, when she was at work and home. Plaintiff testified about many explicit texts that Mr. Valerios sent.

Plaintiff told this guy to leave her alone, but the harassment continued. She threatened to call the police. In addition, "Plaintiff explained that his behavior made her feel vulnerable, and that she was careful not to wear 'inappropriate' clothing to work. Plaintiff was also going through a divorce at the time, which Mr. Valerios knew, and she was unable to leave her position for financial reasons. Mr. Valerios told Plaintiff that he knew she needed him and could not leave her job." As to pain and suffering, she further testified:

she also began seeking treatment for symptoms that Plaintiff states are a result of Defendants' discrimination and sexual harassment. Her symptoms had begun in February and March 2014. Plaintiff described being unable to get out of bed in the morning and not wanting to be around her daughter and her boyfriend during that time. She also reports that her new employer told her that she has trouble looking into people's eyes, and that it was difficult to have meetings and conversations with her. She still sees a psychiatrist once per month to treat her symptoms. She takes the prescription drug, Lexapro, to treat her anxiety and depression. Plaintiff also experiences fluctuations in her weight and feelings of helplessness, hopelessness and worthlessness; she has trouble sleeping through the night; and she has fatigue and loss of energy. Plaintiff testified that she did not have these symptoms and diagnoses before she worked for Defendants. Although Plaintiff was going through a divorce around the same time that she worked for Defendants, Plaintiff testified that she felt strong when she was leaving her husband, but that Mr. Valerios's behavior made her feel violated and as if she were "nothing" or a "piece of meat."

What is her pain and suffering worth? The court provides the framework for these damages:

"Cases in the Second Circuit involving awards for emotional distress can generally be grouped into three categories of claims: 'garden-variety,' 'significant' and 'egregious.'" In garden-variety claims, in which appropriate damages range from $5,000 to $35,000, "the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury." In significant claims cases, in which appropriate damages range from $50,000 to $100,000, the claims "are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." Id. (internal quotation omitted). "Finally, 'egregious' emotional distress claims, where courts have upheld awards of over $100,000, have only been warranted where the discriminatory conduct was outrageous and shocking or where the physical health of plaintiff was significantly affected.'"

The court finds that plaintiff suffered significant pain and suffering, and it recommends that the district judge award her $120,000. This takes into account her significant distress but also the fact that she had other stressful events taking place in her life. The work-related distress continues after two years. In fixing the damages, courts will review other cases to ensure that the damages are not too high. The magistrate judge summarizes damages awards in other sexual harassment cases, as follows:

Equal Emp't Opportunity Comm. v. Suffolk Laundry Svcs., Inc., 12 Civ. 409 (MKB) (ARL), Order on Consent Decree, ECF No. 88 (E.D.N.Y. Nov. 30, 2015) (defendant agreed to pay $582,000 to seven plaintiffs who complained that defendant's manager physically and verbally sexually harassed them, including allegedly regularly touching them on their buttocks, hips, and backs, forcibly kissing them and making comments about their appearance and body parts); Echevarria v. Insight Med., P.C., 72 F. Supp. 3d 442, 445 (S.D.N.Y. 2014) (upholding jury award of $50,000 in compensatory damages where plaintiff was sexually harassed over a two-month period via text and in-person by her supervisor and then fired when she rejected his sexual advances; plaintiff's social worker testified at trial that plaintiff was subsequently diagnosed with post-traumatic stress disorder and major depressive disorder); Offei v. Mahmoud Abdel-Salam Omar, 2012 U.S. Dist. LEXIS 80171, 2012 WL 2086294, at *7 (S.D.N.Y. May 18, 2012) (awarding $250,000 in damages for one-time incident of sexual assault where plaintiff experienced severe emotional distress that required her to take anti-anxiety medication on a daily basis); Manzo v. Sovereign Motor Cars, Ltd., No. 08 Civ. 1229 (JG) (SMG), 2010 U.S. Dist. LEXIS 46036, 2010 WL 1930237, at *1 (E.D.N.Y. May 11, 2010), aff'd 419 F. App'x 102 (2d Cir. 2011) (upholding jury award of $50,000 in compensatory damages where plaintiff was sexually harassed by her supervisor over a five-month period, fired for rejecting his sexual advances and suffered significant psychological and emotional distress; evidence was also introduced at trial that plaintiff's supervisor used plaintiff's "precarious financial situation" to exert power over her); Becerril v. E. Bronx NAACP Child Dev. Ctr., 08 Civ. 10283 (PAC) (KNF), 2009 U.S. Dist. LEXIS 76376, 2009 WL 2611950, at *6 (S.D.N.Y. Aug. 18, 2009), adopted by 08 Civ. 10283 (PAC) (KNF), 2009 U.S. Dist. LEXIS 85383, 2009 WL 2972992 (S.D.N.Y. Sept. 17, 2009) (awarding $50,000 in compensatory damages in pregnancy discrimination case  where plaintiff's symptoms of emotional distress lasted a few months after defendants terminated her employment); Boodram v. Brooklyn Developmental Ctr., 2 Misc. 3d 574, 773 N.Y.S.2d 817, 835 (Kings Cty. Civ. Ct. 2003) (upholding jury award of $172,000 in pain and suffering damages where plaintiff was grabbed sexually at least 20 times by her employer); see also Rodriguez, 2014 U.S. Dist. LEXIS 47978, 2014 WL 1347369, at *7 (awarding $10,000 in emotional distress damages where plaintiff was sexually harassed by her employer for one day before quitting her job); Jowers v. DME Interactive Holdings, Inc., 00 Civ. 4753 (LTS) (KNF), 2006 U.S. Dist. LEXIS 32536, 2006 WL 1408671, at *13 (S.D.N.Y. May 22, 2006) (awarding $15,000 in pain and suffering where plaintiff was discriminated against over several months but did not seek medical treatment for her injuries); Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 53, 559 N.Y.S.2d 336 (1st Dep't 1990), aff'd, 77 N.Y.2d 981, 575 N.E.2d 393, 571 N.Y.S.2d 907 (1991) (upholding jury award of $200,000 in compensatory damages for plaintiff's battery and intentional infliction of emotional distress claims where plaintiff was sexually touched as a child by her stepfather).

Bear in mind that other judges use a different three-tiered damages schedule, offering the plaintiffs much more money. See, e.g., Olsen v. Cty. of Nassau, 615 F. Supp. 2d 35, 46-47 (E.D.N.Y. 2009) ("'Garden variety' emotional distress claims 'generally merit $30,000 to $125,000 awards'").