Retaliation plaintiff gets much less money in damages at second trial

Let us all say a prayer for all the plaintiffs who had to proceed to a second trial after winning the first one because the trial court said the plaintiff was awarded too much money. These prayers are limited to those plaintiffs who got less money the second time around. In this case, the plaintiff got a lot less money at the second trial.

The case is Cole v. Foxmar, Inc., a summary order issued on January 8. This is a retaliation claim brought under Vermont law. Plaintiff said he was fired in retaliation to complaining that employees were unable to take sick leave. The case went to trial and the jury ruled for plaintiff, awarding him $75,000 for emotional distress and $3 million in punitive damages. Great win for plaintiff. Except that the trial court said the damages were too high and were unsupported by the evidence. Without offering plaintiff a chance to avoid a second trial if he accepted a lesser amount (which is what most trial judges do in federal court), the trial court ordered a new trial, solely on damages,

Let's step back a bit and think about this. Jurors are told at trial that they are the final judges of the case. No one tells the jury that, post-trial, the attorneys and the judge pick through the verdict to make sure the jury did not exceed its authority in ruling for one party or another, and in issuing a damages award. But that's our system. If the jurors in the first trial in this case decide to Google this case, they will be surprised to know the case continued for several years after they rendered their verdict.

At the second trial, the jury awarded plaintiff only $35,000 in back pay and $20,000 for emotional distress. So, while the first jury gave plaintiff $3,075,000 in damages, the second trial only yielded $55,000 in damages Plaintiff's appeal argues that the trial court abused its discretion in ordering the second trial in the first place and that the original damages awards should stand.

The problem for plaintiff is that trial judges have discretion to order a second trial on damages if they think the first damages award was tainted in some way. What happened here is the first jury gave plaintiff more money in lost wages than he had asked for, and the jury assumed in awarding all that money in back pay that he would have continued working for defendant for more than 15 years, an assessment that was not supported by the trial record. The trial court also believed the jury exceeded its authority in awarding $3 million in punitive damages since plaintiff did not suffer any physical injuries from the retaliation, the employer only suppressed plaintiff's complaints about sick leave in isolated incidents, and the punitive damages exceeded the lost wages award by a large ratio (14:1) that offends the Due Process Clause under Supreme Court precedent.  

What about the trial judge's failure to offer plaintiff a remittitur? The Court of Appeals (Cabranes, Sullivan and Perez) says that while plaintiff argued in his reply brief that Vermont law requires that plaintiff be given that choice, he did not preserve that argument in his opening brief. This allows the Court of Appeals to apply federal law on this issue, and federal law says the trial court has the option of simply ordering a second trial on damages without a remittitur option.