Court of Appeals affirms trial court's order directing a new sexual harassment trial

This case has a long and convoluted history, including two trials held within a year of each other. The first trial yielded a $2.575 million verdict, but the trial court vacated the liability verdict and damages award and ordered a second trial, which yielded $1 in compensatory damages. The Court of Appeals affirms the first decision to throw out the first verdict, and it holds the second trial was free from reversible judicial error.

The case is Qorrolli v. Metropolitan Dental Associates, issued on December 23. I briefed and argued the appeal. Zachary Holzberg, Esq., tried both cases. As the Court of Appeals (Walker, Menashi and Merchant [D.J.]) puts it, here is what happened at the first trial:

At that trial, Qorrolli testified that she was sexually harassed by Orantes almost daily, who, among other things, allegedly “told [Qorrolli] that [she] had a nice, firm body,” would “hug” Qorrolli, “kiss” her on the cheek, and tell her he “loved” her, and “lingered around [Qorrolli’s] lips for [her] to look up and have him kiss [her].” Qorrolli testified that Orantes’ conduct made her “start[] feeling anxiety and [having] panic attacks.” 

Qorrolli also testified that she observed Orantes sexually abusing her female coworkers and giving preferential treatment to the women who accepted his advances. Qorrolli asserted that Orantes would blame her for these other women’s mistakes and would unfairly target Qorrolli for punishment and chastisement because of her refusal to submit to his advances.

Note that Plaintiff testified that she observed Orantes harass other women, primarily by taking them into empty offices for sexual liaisons. Plaintiff rebuffed Orantes' advances in this regard, and she testified that, in retaliation for that, Orantes disparaged her job performance to Dr. Cohen, who owned the dental practice. Plaintiff further testified that Dr. Cohen told her in vulgar terms that he did not believe her when she complained about Orantes. The jury awarded plaintiff $575,000 for pain and suffering and $2 million in punitive damages.

The trial court held the damages award was so out of line that a new trial was warranted on liability. Most of the time, trial judges will simply reduce the damages if they are too high, but the district court in this case held the jury heard too much hearsay evidence about coworker harassment at the hands of Orantes, and that that evidence infected the verdict. We argued on appeal that this kind of evidence was often witnessed by plaintiff firsthand and that the judge issued limiting instructions on related evidence in any event, which the jury is presumed to follow.

District courts have discretion to order a new trial. The standard of review is "abuse of discretion," which is deferential to the trial court, but not insurmountable. The Court of Appeals finds the trial court did not abuse its discretion in ordering a new trial. In holding the trial court was able to find the first trial was a miscarriage of justice, the Court of Appeals reasons as follows:

1. The compensatory damages were too high and "shocked the judicial conscience" because $575,000 was too much for compensatory damages and $2 million in punitive damages was excessive. The Court of Appeals cites precedent stating that "An unusually high damages award should be corrected through remittitur when 'the trial has been free of prejudicial error,' but 'the size of a jury’s verdict may be so excessive as to be inherently indicative of passion or prejudice and to require a new trial.'” The Court notes that, under the matrix used in the Second Circuit, "garden variety" emotional distress awards typically yield damages in the range of $30,000 to $125,000, and "significant" awards amount to $50,000 to $200,000 and sometimes reach $500,000. Since the damages in this case were significantly larger than other employment discrimination cases, the Second Circuit holds the district court did not abuse its discretion in holding the damages in this case were out of line since plaintiff (whose mother testified about plaintiff's pain and suffering) did not put on corroborating medical testimony and "presented limited evidence regarding the severity of the conduct that produced such distress," even though, as the Court of Appeals noted, plaintiff testified that Orantes sexually harassed her "almost daily" for approximately six years.

2. The Court of Appeals further holds that the punitive damages were too high and "can only be explained by the unfair prejudice to the defendants from the hearsay offered by the plaintiff." Not to sound too defensive here, but we argued on appeal the "hearsay" was not all hearsay as plaintiff witnessed much of Orantes' harassment of other employees, and plaintiff testified that Dr. Cohen was callously indifferent to plaintiff's concerns about the sexual harassment.

The Court of Appeals did not particularize the nature of the "hearsay" that it claims infected the verdict. The primary focus in affirming the trial court's order directing a new trial was the size of the damages award. To that end, we argued that, apart from plaintiff's extensive testimony about her pain and suffering, corroborated by her mother, we cannot fault the jury for awarding a too-high compensatory damages award since it has no awareness of the damages matrix that the Second Circuit referenced in the ruling, with its rough estimates about the value of "garden variety" and "significant" cases, many of which are more than 10 years old and reflected yesterday's values about the harm created by longstanding sexual harassment. 

Will this ruling prompt more trial judges to order a new trial when the jury awards an excessive damages award? The trial court can do so if the court thinks something bad happened at trial. But no trial is perfect. Some hearsay always sneaks into the record, usually corrected by limiting instructions. These instructions were issued in this case, but the Court of Appeals does not mention it in this ruling, so future judges may read this decision to mean that an excessive damages award plus some hearsay is enough for a new trial on liability. Very few cases order a new trial on these grounds, and with little precedent to guide them. I wonder what impact this case will have on future cases.

The second trial, as noted, yielded a nominal damages award on a similar but not identical trial record, though the plaintiff again testified about the almost-daily harassment, and her mother corroborated her pain and suffering. The Court of Appeals rules that plaintiff is not entitled to a new trial on the second trial, again applying the abuse-of-discretion standard.

One trial error raised on appeal was the trial court's order disallowing a corroborating witness, Vila, from testifying on liability after her doctor told the court that the witness had cancer and could not make it to the courthouse; plaintiff asked to have the jury hear the witness's deposition testimony, a common solution when the witness is not available. The Court of Appeals holds that the district court did not abuse its discretion in precluding Vila's deposition testimony, determining as follows:

The district court determined that Qorrolli had not established Vila’s unavailability because, although “it would ordinarily find a doctor’s note to be determinative regarding unavailability, . . . Ms. Vila was still travelling to and attending work in Manhattan; [Qorrolli’s] counsel had been uncertain whether Ms. Vila would testify in person; the physician’s letters were vague and produced only at the eleventh hour; and, it appeared the doctor had simply accommodated a witness’s desire not to appear because of the emotional stress an appearance would entail.”

The district court also precluded introduction of plaintiff's medical records, which we argued would have corroborated her pain and suffering. The Court of Appeals held the probative value of the medical records substantially outweighed their relevance because they provided "general descriptions of the plaintiff’s mental wellbeing—including that she was having problems in the workplace, having trouble sleeping, and experiencing symptoms of depression." In addition, the Court of Appeals stated that the records contain "limited references to Orantes, and none of those references describe the specific instances of sexual misconduct described by plaintiff at the second trial. He is described as ‘very manipulative’ and ‘verbally abusive.’ There is no description of a specific event and no use of the term sexual harassment." Moreover, the district court saw limited probative value in the psychiatric records because they contained 'few' statements 'made for the purpose of a medical diagnosis or treatment' and because their general description of Qorrolli’s psychological maladies did not include any attribution to causes or precipitating incidents."