Case 23-282, Document 92-3, 09/20/2023, 3571317, Page1 of 33
United States Court of Appeals for the Second Circuit
Fortessa Qorrolli,
Plaintiff-Appellant, v.
Metropolitan Dental Associates, D.D.S.- 225 Broadway, P.C., Metropolitan Dental Associates, D.D.S., P.C., Mark Orantes, Individually, Paul I. Cohen, Individually,
Defendants-Appellees.
On appeal from a Judgment of the United States District Court for the Southern District of New York
AMICUS CURIAE BRIEF BY CRUMILLER P.C. IN SUPPORT OF REVERSAL OF THE TRIAL COURT’S DECEMBER 15, 2022, RULE 59 ORDER
Susan K. Crumiller Crumiller P.C. 16 Court St, Ste 2500 Brooklyn, NY 11241 (212)390-8480 susan@crumiller.com Counsel for Amicus Curiae
I.
B.
TABLE OF AUTHORITIES
CASES
Abkco Music, Inc. v. Sagan, 50 F.4th 309 (2d Cir. 2022) .......................................................................................5
Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355 (1962) .................................................................................................15
BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) .................................................................................................15
Campbell v. Celico P'ship, No. 10 Civ. 9168 (SAS), 2012 U.S. Dist. LEXIS 110346, 2012 WL 3240223, (S.D.N.Y. Aug. 6, 2012) ............................................................6
Chisholm v. Mem’l Sloan-Kettering Cancer Ctr., 824 F. Supp. 573 (S.D.N.Y. 2011).............................................................................6
Dagnello v. Long Island R. Co., 289 F.2d 797 (2nd Cir. 1961) 7
Dancy v. McGinley, 843 F.3d 93 (2d Cir. 2016 ..........................................................................................5
Disorbo v. Hoy, 343 F.3d 172 (2d Cir. 2003).......................................................................................9
Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022) .............................................................................................25
Doralee Estates, Inc. v. Cities Service Oil Co., 569 F.2d 716 (2d Cir. 1977).....................................................................................13
Duarte v. St. Barnabas Hosp., 341 F. Supp. 3d 306 (S.D.N.Y. 2018) 5
Emamian v. Rockefeller Univ., No. 07 Civ. 3919 (DAB), 2018 U.S. Dist. LEXIS 97674, 2018 WL 2849700 (S.D.N.Y. June 8, 2018) 6
Europe v. Equinox Holdings, Inc., et al, 20 Civ 07787 (JGK) (S.D.N.Y.) 16, 17, 19, 20
Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969)......................................................................................8
Heim v. Daniel, 2023 U.S. App. LEXIS 22934 (2nd Cir.) ................................................................26
Hoyt v. Florida, 368 U.S. 57 (1961) ...................................................................................................23
Hughes v. Patrolmen's Benevolent Ass'n, 850 F.2d 876 (2d Cir 1988) ........................................................................................8
Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990) 9, 10
Jennings v. Yurkiw, 18 F.4th 383 (2d Cir. 2021) .....................................................................................10
Lewis v. Am. Sugar Ref., Inc., 325 F. Supp. 3d 321 (S.D.N.Y. 2018) .....................................................................12
MacMillan v. Millennium Broadway Hotel, 873 F. Supp.2d 546 (S.D.N.Y. 2012) ........................................................................6
Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740 (2d Cir. 1984)...................................................................................8, 9
Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997) 9
Olsen v. County of Nassau, 615 F.Supp.2d 35 (E.D.N.Y. 2009) .........................................................................11
Ramirez v. N.Y.C. Off-Track Betting Corp., 112 F.3d 38 (2d Cir. 1997) .......................................................................................11
Raucci v. Town of Rotterdam, 902 F.2d 1050 (2d Cir. 1990).....................................................................................9
Reynolds v. Pegler, 223 F.2d 429 (2d Cir. 1955) 7, 8
Robinson v. Cattaraugus County, 147 F.3d 153 (2d Cir. 1998).....................................................................................14
Rosas v. Balter Sales Co., 2018 U.S. Dist. LEXIS 109332 (VSB) (S.D.N.Y. June 29, 2018) ............................6
Saber v. NYS Dept of Fin Servs, No. 15 Civ. 5944 (LGS), 2018 U.S. Dist. LEXIS 121811, 2018 WL 3491695 .....................................................................................................6
Senko v. Fonda, 53 A.D.2d 638 (2d Dep't. 1976) .................................................................................9
Sooroojballie v. Port Auth. of N.Y. & N.J., 816 Fed. Appx. (2d Cir. 2020) ...................................................................................6
Turley v. ISG Lackawanna, Inc., 774 F.3d 140 (2d Cir. 2014) 10, 13
United States v. Asare, 476 F. Supp. 3d 20 (S.D.N.Y. 2020) .........................................................................5
United States v. Elhage, 2023 U.S. App. LEXIS 13671 (2d Cir.) ..................................................................25
Villalta v. JS Barkats, P.L.L.C., No. 16 Civ 02772 (RA) (RWL), 2021 WL 2458699 (S.D.N.Y. Apr. 16, 2021) .........................................................12
Watson v. E.S. Sutton, Inc., No. 02 CIV. 2739 (KMW), 2005 WL 2170659 (S.D.N.Y. Sept. 6, 2005), aff'd, 225 F. App'x 3 (2d Cir. 2006) ............................................................................. 6, 12
White v. New York State Office of Children & Family Servs., No. 5:11 Civ 309 (FJS/ATB), 2021 U.S. Dist. LEXIS 16061, 2021 WL 282561 (N.D.N.Y. Jan. 28, 2021) ..............................................................6
Zarcone v. Perry, 581 F.2d 1039 (2d Cir. 1978) 9
OTHER AUTHORITIES
U.S. Const. Amend. VII ...........................................................................................14
Fed. R. Civ. P. 59 ................................................................................................ 2, 17
Fed. R. Civ. P. 50 .....................................................................................................17
Chew, Pat K. and Robert E. Kelley.
“The Realism of Race in Judicial Decision Making: An Empirical Analysis of Plaintiffs’ Race and Judges’ Race.”
Harvard Journal on Racial & Ethnic Justice, Vol. 28, (2012). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2226650# ............................21
O'Malley, Kathleen M.
“Trial by Jury: Why it Works and Why it Matters.”
American University Law Review, Vol. 68, Iss. 4, Article 1 (2019).
Available at https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi? article=2091&context=aulr ......................................................................................20
Robbennolot, Jennifer K.
“Evaluating Juries by Comparison to Judges: A Benchmark for Judging?”
32 Fla. St. U. L. Rev., (2005). Available at https://ir.law.fsu.edu/cgi/viewcontent.cgi?referer=&httpsredir =1&article=1261&context=lr ..................................................................................22
Root, Danielle, Jake Faleschini, and Grace Oyenubi.
“Building a More Inclusive Federal Judiciary.”
Center for American Progress Report (Oct. 3, 2019).
Available at https://www.americanprogress.org/article/ building-inclusive-federal-judiciary/ .......................................................................21
INTRODUCTION
This brief is offered in support of the appeal by Plaintiff-Appellant Fortessa Qorrolli seeking reversal of the trial court’s December 15, 2022 order vacating the jury’s post-trial damages awards and granting Defendants’ motion for a new trial on liability. Special Appendix 18-51. The trial court abused its discretion by (1) usurping the jury’s fact-finding role, and (2) improperly speculating about the jury’s deliberations.
Only in the most extreme circumstances should a trial court reduce a jury award, let alone vacate a liability finding. Instead, as here, it is now done as a matter of routine. This brief assesses the history of jury verdict jurisprudence to examine flaws in the prevailing analytical framework. It examines the implications of jury verdict reduction on actual litigants in our civil justice system, using a recent trial verdict as a case study. Lastly, it invites the Court to consider a new perspective: the jury’s.
We request that an en banc panel be convened.
STATEMENT OF AMICUS CURIAE AND CORPORATE DISCLOSURE STATEMENT
Crumiller P.C. (“Crumiller”) is a New York City plaintiffs-side employment law firm that focuses on fighting harassment, discrimination, and abuse. It has no interest in this case but the principles of justice involved. Crumiller has sought
leave to file this brief pursuant to Fed. R. App. P. 29(a)(2), which is pending. No party or party’s counsel, or any other person, contributed money to fund preparing and/or submitting the brief, nor authored this brief in any part.
Crumiller has no parent corporation, and no corporation owns 10% or more of its stock.
THE TRIAL COURT ORDER
The Brief of Plaintiff-Appellant includes a thorough recitation of the facts and procedural history of the case. To summarize, Defendants moved for an order, inter alia, granting a new trial on liability pursuant to Fed. R. Civ. P. (“FRCP”) 59, after a jury unanimously found them liable for sexual harassment and awarded $575,000 in compensatory damages and $2 million in punitive damages to Qorrolli. SPA-12. On December 15, 2022, while the trial court recognized that Qorrolli’s testimony was sufficient as a matter of law to establish liability and that a jury could find the harassment “pervaded her employment,” it granted the motion, holding that “[t]he jury's damages award is so disproportionate to an award of reasonable damages that a new trial is required.” SPA-4.
The order emphasized that the jury appeared to have ignored its limiting instructions and considered various hearsay statements for their truth. It opined that
“[t]he jury's punitive damages award strongly indicates that they disregarded the Court's multiple limiting instructions,” SPA-26-27, and wondered:
The very fact that the limiting instructions had to be given so frequently, and even repeated in the Court's charge to the jury at the conclusion of the trial, may have undermined their effectiveness. The jury could rightly ask, if the evidence could not be considered for its truth, why was it repeatedly presented?
SPA-33 (emphasis added). Recalling Qorrolli’s failure to recall specific dates or years of the incidents of assault, the court concluded that Qorrolli had “provided minimal direct evidence from which the jury could infer that she was sexually harassed” and that on these bases, the jury’s verdict must have been based upon inadmissible hearsay. SPA-22-23.
Although the jury heard evidence that the employer had ignored Qorrolli’s complaints, insulted her for complaining, and ignored numerous other similar allegations, the trial court stated that no corporate misconduct had been demonstrated aside from the failure to maintain a sexual harassment policy, and thus the damages awards was therefore excessive:
[T]he jury's excessive damages award and particularly its award of punitive damages -- can only be explained by the unfair prejudice to the defendants from the hearsay offered by the plaintiff. An award of $2,000,000 in punitive damages makes little sense if the only misconduct underlying the award is a failure to maintain a sexual harassment policy. It makes far more sense if the jury believed that Orantes routinely harassed other women working for MDA, and if the jury believed that he was retained despite this. The overwhelming majority of the evidence suggesting that Orantes had harassed other women, however, came from hearsay inadmissible for that purpose. If the jury considered such evidence as proof
that Orantes harassed other women, disregarding the limiting instructions, then this error infects not just their damages award, but their finding of liability as well.
SPA-31 (emphasis added).
The court concluded that “[t]he jury’s [compensatory] damages award illustrates that its verdict was not based on the admissible evidence introduced at trial,” based on its review of other remittitur decisions. SPA-24-26 It held that the punitive damages award was also excessive, based on its findings that “the conduct at issue is not so reprehensible as to justify a $2,000,000 award,” SPA-27, and that a ratio of 3.5 times the punitive damages to compensatory damages was not justified because there was not “evidence demonstrating a constellation of intentional misbehavior or extensive misconduct directed at escaping liability.”
SPA-29. The court also noted that the jury did not award punitive damages as against the individual defendants, including an owner to whom Qorrolli complained, and inferred that “[t]he only negligent or reckless conduct attributable to the corporate defendants” was their failure to maintain a sexual harassment policy, which it considered an additional basis to conclude that the punitive damages award was excessive. SPA-28.
ARGUMENT
I. Judges Should Defer to Juries
A motion for a new trial “ordinarily should be denied unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” Abkco Music, Inc. v. Sagan, 50 F.4th 309, 324 (2d Cir. 2022). A jury verdict should only be reduced when “the award is so high as to shock the judicial conscience and constitute a denial of justice.” Dancy v. McGinley, 843 F.3d 93, 113 (2d Cir. 2016). However, in practice, the reduction of jury verdicts in discrimination cases has become routine. Over time, caselaw has obligated trial judges to assess the “reasonableness” of a jury verdict in light of other, purportedly similar cases.
A. The Judge-Made “Three-Tier System”
Recently, District Courts in this Circuit have adopted a judicially created “three-tier” damages guideline which sets forth various monetary ranges based on the severity of emotional distress presented. E.g., United States v. Asare, 476 F. Supp. 3d 20 (S.D.N.Y. 2020), citing Duarte v. St. Barnabas Hosp., 341 F. Supp. 3d 306, 319 (S.D.N.Y. 2018). Under this rubric, a “garden-variety” emotional distress claim, i.e. one that is not supported by extrinsic medical testimony, is generally limited to $30,000 to $125,000; “significant” claims, which are corroborated with evidence of “substantial, long-term psychological harm” can command $100,000
to $500,000 but not usually more than $200,000; and “egregious” claims involving “‘outrageous or shocking’ discriminatory conduct or a significant impact on the physical health of the plaintiff” can merit over $500,000. Duarte, 341 F.Supp 3d at 320-21, citing, e.g., Emamian v. Rockefeller Univ., No. 07 Civ. 3919 (DAB), 2018 U.S. Dist. LEXIS 97674, 2018 WL 2849700, at *16-17 (S.D.N.Y. June 8, 2018) (collecting cases). Notably, the “three-tier system” has never been formally adopted or approved by this Court in a published opinion. Yet, District Courts now routinely use it to reduce jury verdicts. 1
Under the system, there are now two entirely separate and unrelated inquiries in each case. Jurors assess the evidence at trial and deliberate to reach a consensus figure. Then, judges review the verdict, using a completely different set
1 See, e.g., White v. New York State Office of Children & Family Servs., No. 5:11 Civ 309 (FJS/ATB), 2021 U.S. Dist. LEXIS 16061, 2021 WL 282561 (N.D.N.Y. Jan. 28, 2021) (reducing $1,500,000 jury compensatory award to $50,000); Sooroojballie v. Port Auth. of N.Y. & N.J., 816 Fed. Appx. 536, 548 (2d Cir. 2020) (summary order) (reducing $2,160,000 jury compensatory award to $250,000); Saber v. NYS Dept of Fin Servs, No. 15 Civ. 5944 (LGS), 2018 U.S. Dist. LEXIS 121811, 2018 WL 3491695, at *13 (reducing $2,500,000 jury compensatory award to $125,000) (S.D.N.Y, July 20, 2018); Emamian v. Rockefeller Univ., 2018 U.S. Dist. LEXIS 97674 (reducing $2,000,000 jury compensatory award to $200,000); Rosas v. Balter Sales Co., 2018 U.S. Dist. LEXIS 109332 (VSB), at *28 (S.D.N.Y. June 29, 2018) (reducing $800,000 jury compensatory award to $180,000); Duarte v. St. Barnabas Hosp., 341 F. Supp. 3d 306, 332-333 (S.D.N.Y. 2018) (reducing $624,000 jury compensatory award to $125,000 and reducing $750,000 jury punitives award to $125,000); Lewis, 325 F. Supp. 3d at 367-68; MacMillan v. Millennium Broadway Hotel, 873 F. Supp.2d 546, 569 (S.D.N.Y. 2012) (reducing $1,000,000 jury punitives award to $100,000); Campbell v. Celico P'ship, No. 10 Civ. 9168 (SAS), 2012 U.S. Dist. LEXIS 110346, 2012 WL 3240223, at *4 (S.D.N.Y. Aug. 6, 2012) (reducing $200,000 jury compensatory award to $125,000); Chisholm v. Mem’l Sloan-Kettering Cancer Ctr., 824 F. Supp. 573, 580 (S.D.N.Y. 2011) (reducing $1,000,000 jury punitives award to $50,000); Watson v. E.S. Sutton, Inc., No. 02 Civ. 2739 (KMW), 2005 U.S. Dist. LEXIS 31578, 2005 WL 2170659, *16 (S.D.N.Y. Sept. 6, 2005) (reducing $500,000 jury compensatory award to $120,000 and reducing $2,500,000 jury punitives award to $717,000).
of data to determine the “reasonableness” thereof. Deference to the jury is replaced with deference to judges of cases past. The trend constitutes a dramatic departure from well-worn principles enshrined in caselaw for many years.
B. Historically, Judges Deferred to Juries
In the early 20th century, courts were reticent to disturb jury verdicts. In Reynolds v. Pegler, 223 F.2d 429 (2d Cir. 1955), a jury issued a $100,000 punitive damages award – over $1.1 million in today’s dollars – against an individual in a libel case where the actual damages were only one dollar. 2 The Court held, “in the absence of some indication of passion or prejudice, the amount of punitive damages to be awarded is an issue peculiarly within the province of the jury to decide” and upheld the award. Id. at 434. Similarly, in Dagnello v. Long Island R. Co., 289 F.2d 797 (2d Cir 1961), this Court upheld an award of $97,000 –
$966,084 today – for “pain and suffering and loss of limb.” Unable to conclude that the award was “so high that it would be a miscarriage of justice to permit it to stand,” the Court affirmed the district court’s refusal to vacate or remit it. The Court warned against the temptation to reduce verdicts based on unsupported speculation:
2 These figures, and others herein, have been calculated using a standard inflation calculator. $DollarTimes, available at https://www.dollartimes.com/inflation/inflation.php?amount=1000000&year=1932 (last accessed Sept. 18, 2023).
In some cases the very amount of the verdict is said to justify the inference that the verdict was brought about by passion or prejudice, although it seems to us that this is just another way of saying the verdict is too high.
Id. at 802. In Goldwater v. Ginzburg, 414 F.2d 324(2d Cir. 1969), this Court upheld a $75,000 punitive damages award in a libel case – $627,036 today – where compensatory damages were only one dollar. And in Hughes v. Patrolmen's Benevolent Ass'n, 850 F.2d 876, 883 (2d. Cir. 1988), this court upheld $225,000 ($578,677 today) in another “garden-variety” case.
Although the trial court ordered a new trial in part because of the size of the damages awards, the Qorrolli verdict should have been upheld according to the standards set forth in Reynolds, Dagnello, Goldwater, and Hughes - each award of which would be subject to dramatic reduction under the three-tier system. Reynolds, a “garden-variety” case, would be cut tenfold; Dagnello would require a new trial to assess how much of the damages were attributable to emotional distress; Goldwater, as another “garden-variety” claim, would be reduced to a fraction. The Hughes award, meanwhile, is almost exactly equivalent to the Qorrolli award, revealing the stark contrast between the old and new standard.
It was not until the 1990s that this Court began reviewing other comparable verdicts as a matter of practice and as a means for reducing jury awards. In Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740 (2d Cir. 1984), this Court was asked to assess the reasonableness of a state-law claim jury verdict. Accordingly, it was
proper to apply New York standards, which recommended consideration of jury verdicts over time. “As a court sitting in diversity,” the Court therefore looked to other New York cases, explaining that “New York appellate courts regard prior awards as not binding but instructive.” Id., citing Senko v. Fonda, 53 A.D.2d 638, 639 (2d Dep't. 1976).
However, although Martell involved state law and the application of the state standard, it was misattributed in subsequent cases as holding that federal judges are required to conduct a similar review of comparative verdicts. See Raucci v. Town of Rotterdam, 902 F.2d 1050 (2d Cir. 1990); Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990); Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997). 3 Thus, for example, in 2003, this Court reluctantly reduced a jury verdict because it felt “bound by precedent” to do so. Disorbo v. Hoy, 343 F.3d 172, 176 (2d Cir. 2003) (“[w]hile we fully appreciate the gravity of the harm suffered by [plaintiff] and the justification for substantial compensatory and punitive damages . . . we are bound by precedent to compare the awards in this case with the awards in analogous cases.”).
C. The “Three-Tier” System Impermissibly Erodes the Jury’s Role
It is axiomatic that the “calculation of damages is the province of the jury,” and a court may “not vacate or reduce a jury award merely because [it] would have
3 Mathie v Fries, 121 F.3d at 813, also cited Zarcone v. Perry, 572 F.2d 52, 54-55 (2d Cir. 1978), as holding that a comparison “should” be conducted; however, although Zarcone did review other verdicts, nothing in the opinion suggested that other courts need follow suit.
granted a lesser amount of damages.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 162 (2d Cir. 2014); see also Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990). However, that proposition is now contradicted by the flawed but deeply entrenched requirement that trial judges conduct their own review of caselaw and modify jury awards accordingly. In Dancy v. McGinley, 843 F.3d 93 (2d Cir. 2016), the Court reiterated the above standard, only to further provide that “[i]n determining whether a compensatory damage award is excessive, we consider amounts awarded in other, comparable cases.” Id. at 113. In Jennings v. Yurkiw, 18 F.4th 383, 389 (2d Cir. 2021), this Court recited the standard, describing trial courts’ discretion to remit as “relatively narrow,” only to hold that the district court had not erred by remitting compensatory damages from $500,000 to $115,000 – not because the jury award was shocking or unjust, but because it was greater than those in other, prior cases.
The remittitur caselaw that has evolved over time bears no relevance to the verdicts that are issued by juries. Here, the trial court’s erroneous holding that $575,000 in emotional distress damages is excessive (thus justifying in part the order granting a new trial on liability) is a prime example. Noting that $575,000 in emotional distress damages is more than “even some of the highest amounts approved in cases involving ‘significant’ emotional distress,” the trial court picked four cases, out of the past few decades, for comparability review. SPA-24-26. At
first glance, this selection may appear to support the trial court’s finding. However, upon closer examination, the trial court’s own cited cases only confirm that it was an abuse of discretion to disturb the jury’s awards.
Olsen v. County of Nassau, 615 F.Supp.2d 35, 49 (E.D.N.Y. 2009), is a 14year-old case in which a jury’s compensatory award of $500,000 ($705,893 today) was upheld. The trial court contrasted Olsen with Qorrolli on the basis that in Olsen, a treating psychiatrist testified at trial, entitling that plaintiff to “significant” damages, in contrast with Qorrolli’s “garden variety” claim. However, the distinction between “garden-variety” and “significant” damages did not exist throughout the majority of our jurisprudence, which is why medical professionals were not called to testify in the many prior historical examples. Moreover, the Olsen verdict is equivalent to $705,893 in today’s dollars – well above the new “usual” upper limit of $200,000 in “significant” emotional distress cases. E.g., Duarte, 341 F.Supp 3d at 320.
The trial court cited Ramirez v. N.Y.C. Off-Track Betting Corp., 112 F.3d 38, 41 (2d Cir. 1997) as another approved “significant” verdict. SPA-42. The Ramirez jury – quite possibly deliberating before some Qorrolli jurors were even born – had awarded $2,580,000 in compensatory damages, which the court then reduced to $500,000 ($935,678 today – also much higher than the new rubric). It cannot possibly be claimed with certainty that the Ramirez court, which upheld the
equivalent of a nearly seven-figure amount, would be “shocked” by the Qorrolli awards. But this is the problem that transpires when courts look to other courts instead of to juries: reductions beget reductions, with jurors playing no role whatsoever in the evaluative process, and artificially low benchmarks are created.
The trial court also cited Lewis v. Am. Sugar Ref., Inc., 325 F. Supp. 3d 321, 367 (S.D.N.Y. 2018), stating that courts have generally upheld awards between $100,000 and $150,000 where emotional distress damages are not corroborated by professional testimony. SPA-42. But Lewis is another problematic example in which the court reduced the jury’s compensatory and punitive damages awards from $2,250,000 to $414,000 – a fraction thereof. Id. 4 Lewis also demonstrates how this reductions bootstrapping becomes a vicious cycle. For example, Lewis approvingly cites Watson v. E.S. Sutton, Inc., No. 02 CIV. 2739 (KMW), 2005 WL 2170659 (S.D.N.Y. Sept. 6, 2005), aff'd, 225 F. App'x 3 (2d Cir. 2006), as an example in which the awarded $120,000 in compensatory damages in a sexual harassment case. However, the jury had awarded $500,000 in compensatory damages – along with $2,500,000 in punitive damages, which the court similarly reduced to $717,000. Id. Although even the significantly reduced Watson award
4 The trial court approvingly cited Villalta v. JS Barkats, P.L.L.C., No. 16 Civ 02772 (RA) (RWL), 2021 WL 2458699, at *14 (S.D.N.Y. Apr. 16, 2021), describing that the court had “recommend[ed] remittitur to $350,000 in emotional distress damages in an ‘egregious’ case where the plaintiff was sexually assaulted twice,” SPA-042. However, Villalta was a recommendation after inquest and did not involve remittitur. Id
well exceeds the “three-tier” structure, it is notable that the findings of the jury itself were rendered completely invisible.
The order on appeal provides another telling example of this recent usurpation of the jury’s role. The trial court cited Turley v. ISG Lackawanna, Inc.,
774 F.3d 140 (2d Cir. 2014), to establish that courts must exercise particular control over damages awards due to their speculative nature:
Awards for mental and emotional distress are inherently speculative. There is no objective way to assign any particular dollar value to distress. Nonetheless, as we explained in discussing a claim of excessive punitive damages, a legal system has an obligation to ensure that such awards for intangibles be fair, reasonable, predictable, and proportionate. We must ensure proportionality, to control for the inherent randomness of jury decisions concerning appropriate compensation for intangible harm, and to reduce the burdensome costs on society of over-extensive damages awards.
774 F.3d at 162 (cleaned up). Yet, decades ago, in Doralee Estates, Inc. v. Cities Service Oil Co., 569 F.2d 716 (2d Cir. 1977), this Court reached the exact opposite conclusion, holding that the lack of precision in damages awards is a reason to grant more deference to the jury’s findings:
Remittitur . . . is an expedient to be employed with circumspection. Since punitive damages by their nature do not admit of precise determination, their evaluation is properly within the discretionary province of the jury, and will be overturned only if shockingly or grossly excessive.
Id. at 722 (cleaned up).
In sum, the vast majority of historical caselaw supports affirming the Qorrolli jury’s awards and would counsel against ordering a new trial on liability
in part because of the size of the damages awards. Only recent cases, in which reductions have been bootstrapped upon reductions, with no consideration to the jury awards themselves, can be read as potentially supporting its reduction. The trial court abused its discretion by holding that the jury’s awards were so erroneous as to constitute a “miscarriage of justice” based upon these newly created judicial standards.
II. The Trial Court Violated Qorrolli’s Seventh Amendment Right
The Seventh Amendment grants civil litigants “the right of trial by jury” and provides, in relevant part, that “no fact tried by a jury, shall be otherwise reexamined in any Court.” U.S. Const. Amend. VII. The practice of reducing excessive jury awards is not, by itself, unconstitutional. However, when courts overstep their authority by “re-examin[ing]” facts that were before the jury, and discarding the jury’s findings without proper basis, they violate litigants’ Seventh Amendment rights. Id. Specifically, a court may not do exactly what the trial court did here: discard a verdict based on seeming jury “inconsistency” instead of resolving any lingering questions in favor of upholding the verdict. A courts’ responsibility, instead, “is to adopt a view of the case, if there is one, that resolves any seeming inconsistency,” rather than to adopt an interpretation that jeopardizes the verdict. Robinson v. Cattaraugus County, 147 F.3d 153, 160 (2d Cir. 1998).
“For a search for one possible view of the case which will make the jury's finding
inconsistent results in a collision with the Seventh Amendment.” Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962).
The trial court’s order, with respect to both compensatory and punitive damages, is based heavily on its unfounded speculation about the jury’s ostensible impropriety – about the limiting instructions, but also about why the jury had not awarded punitive damages as against an individual defendant SPA-28. Though the punitive damages award was well within constitutional parameters, BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), the trial court reduced it based on its own impermissible findings of fact (i.e., the level of reprehensibility of the conduct, SPA-27, the lack of “evidence demonstrating a constellation of intentional misbehavior or extensive misconduct directed at escaping liability,” SPA-29, and that the only corporate misbehavior was failure to maintain a sexual harassment policy, SPA-28).
It was an abuse of discretion, and unconstitutional, for the trial court to replace these jury findings with its own.
III. The Practical Effect of Jury Verdict Injustice
In general, prospective plaintiffs with sexual harassment and discrimination claims come to our firm afraid that they will not be believed and that their voices will not be heard. Well-publicized, high jury verdicts, on those rare occasions they are reached, often provide much-needed validation and encouragement for
frightened discrimination and abuse survivors. No case in our civil justice system exists in a vacuum; each successful discrimination case galvanizes other plaintiffs who might otherwise have been too afraid to come forward.
Yet, the implementation of the new “three-tier” system has had a widespread chilling effect on the vindication of our clients’ rights. In the daily lives of our practices, plaintiffs’ lawyers are forced to explain to our clients that jury verdicts are effectively illusory because there is a shadow damages calculation system, created entirely by the judiciary. This shadow system will govern their ultimate recovery and will all but ensure that any large award they receive from a jury will be meaningfully reduced. We see over and over again, first-hand, the shock and disappointment that survivors experience upon learning how routinely jury verdicts are discarded.
A. Case Study: Europe v. Equinox
Europe v. Equinox Holdings, Inc., et al, 20 Civ 07787 (JGK) (S.D.N.Y. Sep. 9, 2022) (hereafter “Equinox”), provides a powerful recent example. Plaintiff Röbynn Europe, a Black woman, brought claims of race and gender discrimination based on mistreatment she suffered in her workplace. On May 9, 2023, a jury of eight was empaneled. Each juror took an oath to render judgment impartially and fairly, without prejudice or sympathy and without fear, solely upon the evidence in the case and the applicable law. On May 15, 2023, the jury unanimously found that
Europe had proven her discrimination and hostile work environment claims. The next day, it unanimously found that she had established her entitlement to $1,250,000 in compensatory damages, and $10,000,000 in punitive damages.
Equinox, Docket No. 189 (May 18, 2023). Equinox filed a motion for a new trial and/or remittitur under FRCP 50 and/or 59.
Europe describes how it felt to realize that her victory was illusory:
The [remittitur] process also serves to retraumatize plaintiffs who have already proven their suffering, and likely spoken about it at length in a courtroom full of strangers.
For me, winning the trial and being validated under the law by eight strangers was more powerful than anything I had ever experienced in my life. I watched our justice system work in a way that it frequently does not for women, BIPOC, queer folks, members of other marginalized communities, or really anyone alleging workplace discrimination.
Further, the jury alone was given the civil duty to put a number on an intangible thing – pain and suffering. They determined, after hearing my story from my own mouth, that the mental, emotional, and physical anguish I survived was worth $1.25M, and Equinox’s egregious disregard of the law required a severe punishment, not just as a penalty to them, but as a DETERRENT to others – $10M.
But mere minutes after this incredible victory, I was required to put a new number on what I’d endured. This number was not based on what I needed in order to feel whole again or even anything having to do with Equinox or with me personally.
For weeks, I had to ask myself “needs aside, how low can we go?” No plaintiff should be required to do this after YEARS spent to secure a legal victory.
Declaration of Röbynn Europe, Crumiller Appendix, at 19-21.
A litigant’s hard-won legal success should not remain so untethered to her actual expected outcome, especially where there is no evidence that a jury acted improperly. Indeed, the prospect of remittitur looms large in every one of our cases, whether pre-litigation or litigation. The defense bar knows, and is not afraid to explain, that a well-fought, hard-won, reasoned jury verdict, like the Equinox verdict, is no threat to their clients. This reality negatively impacts our clients’ abilities to vindicate their rights to be free of discrimination. It also undermines the enforcement mechanism of the courts, insofar as employers have little to lose by continuing to discriminate and break the law.
As lawyers, we work to build trust in our clients. We reassure them that the system is fair and that it works. When clients learn that it is the powerful man or woman in the black robe who will be the final arbiter of what their case is worth, rather than the jury of peers they were expecting, they feel helpless against the system: it is a betrayal to them.
B. The Equinox Jury
Jury duty can be an extraordinary disruption to a person’s life. At many workplaces, it is one of few recognized legitimate excuses for missing work. Jokes about having to escape jury duty are extremely commonplace in popular culture. 5
5 For example, it is a common theme for comedy protagonists to attempt to evade jury service in popular television shows, as in, e.g., Seinfeld (NBC May 1998), 30 Rock (NBC January 2013),
Jury duty is hard! Lawyers are not generally known for our concision . . . or our joie de vivre. Jurors often spend long hours struggling to pay attention to sets of complicated facts. Serving on a jury means actively listening, being mentally engaged, and carrying an extremely serious responsibility. Jurors are a cornerstone of our civil justice system, and we often hold up jury service as a prime example of a civic duty that it is an honor to fulfill.
After securing the Equinox verdict, I interviewed seven of the eight jurors who had served. Equinox, Dkt. No. 218 (June 21, 2023), Exhibits 17-23, annexed hereto at Crumiller Appendix at 1-18 I told them that Equinox had filed a motion to vacate or reduce the verdict, and that it was almost certain that the award they had issued would be significantly reduced. Each expressed shock. They were completely unaware of the “three-tier” system, let alone that their findings would be so freely disregarded.
Each juror I met with voluntarily submitted a declaration in opposition to Equinox’s remittitur motion. Equinox, Dkt. No. 218 (June 21, 2023), Exhibits 1723, Crumiller Appendix p. 1-18. They confirmed that they “took th[e] oath seriously.” Id., ¶ 2. They each considered themselves to be “reasonable and fairminded” and described their fellow jurors similarly based upon their observations The Simpsons (Fox Broadcasting Company 2015), Parks and Recreation (NBC February 2015), Brooklyn Nine-Nine (NBC September 2021), and Curb Your Enthusiasm (HBO August 2022).
of each other. Id., ¶ 3. They took great umbrage at Equinox’s attempt to “discard[]” their verdict, id., ¶ 5, and expressed that they “fe[lt] compelled [to] fervently disagree” with the “unsupported and speculative claims” asserted by Equinox in support of its motion that mirror the lower court’s speculation in this case. Id., ¶ 6.
Seven jurors wrote:
The instructions to the jury indicated that we, the jury, were the arbiters of this case, and that we, the jury, were the ones to determine the amount of damages that would be fair and just compensation for the plaintiff’s injuries. That the court system could unilaterally overturn our verdict, based on factors outside the purview of what we witnessed at trial and outside the purview of our deliberations, feels wrong and unfair. It is an injustice and belittlement to the time and energy we spent.
Id., ¶ 7-8. Many jurors expressed frustration that the message they attempted to send to Equinox, with their awards, would be thwarted. They thought they had a certain power and they had wielded it responsibly and with care. They felt duped.
C. Juries Are Better Equipped to Perform Their Role Than Judges Are
The right to a trial by jury is one of the most important and fundamental rights in our country. Indeed, the lack of a specific jury trial guarantee in the Constitution was the main impetus for the creation of the Bill of Rights. 6 John Adams called trial by jury “the heart and lungs of liberty”; Justice William
6 O'Malley, Kathleen M. “Trial by Jury: Why it Works and Why it Matters.” American University Law Review, Vol. 68, Iss. 4, Article 1, at 1097-98 (2019). Available at https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=2091&context=aulr (last accessed Sept. 18, 2023).
Rehnquist wrote that Seventh Amendment rights are “an important bulwark against tyranny and corruption.”
Why are juries so important? The judiciary includes our society’s most esteemed and accomplished members – by definition, not a representative sample of the community. Inequalities persist: as of August 2019, 80 percent of sitting judges on the federal bench were white (compared to about 60 percent of the general population) and 73 percent were male (compared to about 49 percent of the general population). 7 A 2016 study found that approximately 48 percent of all former and current federal judges had graduated from one of 20 top law schools. Id. at 8. Identity affects decisionmaking. In 2012, researchers analyzed all reported racial harassment cases in six circuits from 2002 to 2008, and found a statistically significant correlation between the race of a judge and the outcome of a case. 8 The researchers explain how fact-finders draw upon their lived experiences to
7 Root, Danielle, Jake Faleschini, and Grace Oyenubi. “Building a More Inclusive Federal Judiciary.” Center for American Progress Report (Oct. 3, 2019). Available at https://www.americanprogress.org/article/building-inclusive-federal-judiciary/ (last accessed Sept. 18, 2023).
8 Chew, Pat K. and Robert E. Kelley. “The Realism of Race in Judicial Decision Making: An Empirical Analysis of Plaintiffs’ Race and Judges’ Race.” Harvard Journal on Racial & Ethnic Justice, Vol. 28, p. 91 (2012). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2226650# (last accessed Sept. 18, 2023). (““These circuits were selected because they represented circuits from all regions of the United States and included large, racially diverse populations. Cases that had multiple plaintiffs and uncertain procedural outcomes (i.e., not clearly a plaintiff win or loss) were not included in the statistical analysis.”)
determine, for example, whether a series of events form a pattern of racial harassment:
Some judges connect the dots between the events, while others do not. It could be that White judges as a whole are less likely to connect the dots. Or, they discount some of the dots, explaining them away as typical workplace behavior or an insensitive form of humor that is not race-related or serious. In contrast, African American judges may be more inclined to connect the dots. . . .
White judges are less likely to have personally experienced or even observed racial harassment in their own lives. . . . In the same way that a judge’s military experience, family business, or Ivy League education may provide some context in relevant cases, so would a judge’s experience as a racial minority.
Id. at 105. A different study found that all-white judicial panels rule less favorably for plaintiffs in race-related voting rights cases than panels with at least one Black judge. Id. at 106.
These results translate clearly to the importance of being heard by a jury of one’s peers. However, demographics are not the only distinction between judges’ and juries’ decisionmaking. A seminal 1966 study, involving approximately 4,000 civil cases, found that juries’ damages awards were approximately 20% higher than judges reported they would have awarded. 9 Several other studies have found
9 Robbennolot, Jennifer K. “Evaluating Juries by Comparison to Judges: A Benchmark for Judging?” 32 Fla. St. U. L. Rev., at 483-84 (2005). Available at https://ir.law.fsu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1261&context=lr (last accessed Sept. 18, 2023).
that judges are less likely than laypersons to consider punitive damages appropriate in a given case. Id.
The consistent, significant discrepancy between present-day jury awards and judicial awards in this Circuit, in light of the above findings about the representativeness of the judiciary, should be alarming. But the Court should also consider the value of juror service generally in the community. The Honorable Kathleen O’Malley, who presided over jury trials for 16 years before her elevation to the Federal Circuit, describes:
[P]articipation in the jury system is often the only contact with the justice system or the federal government that many citizens ever have. It is a rare opportunity for individuals whatever the circumstance of their birth or their station in life to participate in our democracy. It reinforces a fundamental belief in those called to serve that we are all created equal and assures citizens that in our society even the powerful and wealthy are subject to the scrutiny of average citizens. And, perhaps nearest and dearest to my heart, jury trials foster trust in, and respect for, the justice system. When I had the privilege of presiding over jury selections, I was disheartened by how many people felt it would be a waste of their time to participate in the process. But my faith in the citizens of our communities was always renewed when without fail even those who had tried to avoid jury duty, later told me it had been a valuable and educational experience.
O’Malley, “Trial by Jury,” at 1109.
It is also important to keep in mind how quickly society’s views are changing on the topics at hand. As recently as 1961, the Supreme Court excused discrimination against female jurors on the basis that a “woman is still regarded as the center of home and family life.” Hoyt v. Florida, 368 U.S. 57 (1961). Credit
and housing discrimination against women was legal until 1974; the Supreme Court was an all-male institution until 1981. The expansion of the #MeToo movement in 2017 caused a sea change in cultural attitude shifts and legislation around the country. Many sexual harassment cases were subject to mandatory forced arbitration until Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act in March 2022 – just 18 months ago.
In light of society’s rapidly changing views, this Court must decide: whose judgment should prevail? The jury watching the testimony and reviewing the evidence in the case at trial – or judges who assessed other unrelated awards in years past? Is a 1997 verdict, SPA-42, for example, truly relevant to the Qorrolli jury, and what impact should that prior verdict have on the message the jury is empowered to send with its award? Overturning jury verdicts in favor of a judgemade system, that is not generally known to the non-lawyer public, serves as an injustice to jurors who take their oath seriously and work hard to issue verdicts they believe are fair. This Court should hold that it is an abuse of discretion to vacate or remit a jury verdict unless – as the standard dictates – justice actually requires it. 10
10 Though it is not the focus of this brief, it is clear also that principles of judicial economy would favor the same result. Duplicative, unnecessary trials are the last thing our overburdened judicial system needs.
IV. The Court Should Convene En Banc
To the extent that prior decisions suggest that (1) a review of other judicial decisions is important and appropriate to assess jury behavior, and/or (2) it is a legitimate exercise of discretion for courts to vacate and/or remit jury verdicts absent a true miscarriage of justice, they must be overruled. “Comparative verdict analysis” conflicts with the central principle that damages calculation is the province of the jury. Courts should not be permitted, let alone required, to override the will of juries on the basis of other verdicts in different cases of which the jurors were unaware. At minimum, the lower courts in this Circuit should cease usage of the “three-tier” guidelines system, which is entirely judge-made and has no statutory authority.
Current remittitur jurisprudence is unfair to plaintiffs, unfair to jurors, and anti-democratic, and accordingly, meets the five factors to consider in assessing whether overruling prior precedent is warranted. See generally, e.g., Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022). This Court is bound by the decisions of prior panels until they are overruled either by an en banc panel of this Court, or by the Supreme Court. See, e.g., United States v. Elhage, No. 22-763, 2023 U.S. App. LEXIS 13671, 2023 WL 3772266 (2d Cir., June 2, 2023); Heim v. Daniel, Docket No. 22-1135-cv, 2023 U.S. App. LEXIS 22934, *29 (2d Cir., Aug.
20, 2023). The issue now before the Court is important enough that an en banc panel should be convened.
CONCLUSION
The trial court’s December 15, 2022 order granting a new trial should be reversed and the original jury awards reinstated.
Certification
Susan Crumiller, counsel for amicus, affirms that this brief complies with FRAP 29(A)(5) and 32(g)(1). Excluding the cover page, disclosure statement, table of contents, table of citations, signature block, and this certification, the brief complies with the Type-Volume Limitation set forth in FRAP 32(a)(7)(B) as it contains 6,442 words.
Dated: September 20, 2023
Brooklyn, New York
Susan Crumiller
