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FLOREZ v. DELBOVO

September 12, 1996

ANN FLOREZ, Individually and MICHAEL FLOREZ, a minor, by ANN FLOREZ, his mother and next friend, Plaintiffs,
v.
DENNIS DELBOVO and TANDY CORPORATION, a Texas Corporation, Defendants.



The opinion of the court was delivered by: COAR

 On December 7, 1995, after a trial on plaintiffs' civil rights claims under 42 U.S.C. §§ 1981 and 1982, a jury awarded plaintiff Michael Florez a total of $ 807,500 in damages. This award included $ 55,000 in nominal or actual damages against defendants Dennis Delbovo ("Delbovo") and Tandy Corporation ("Tandy"), $ 2500 in punitive damages against Delbovo, and $ 750,000 in punitive damages against Tandy. The jury found in favor of defendants as to plaintiff Ann Florez's claims.

 Defendants Delbovo and Tandy have moved to vacate the judgments entered on the jury verdicts, set aside the jury verdicts returned against them and in favor of the plaintiff, Michael Florez, and grant judgment notwithstanding the verdict in their favor on plaintiff's punitive damage claims. In the alternative, defendants Delbovo and Tandy have moved for a new trial on all issues, and in the further alternative, a remittitur of the punitive damages awards.

 After careful consideration of the defendants' post-trial motion, as well as the relevant pleadings, this court has decided to deny the defendants' motions for judgment notwithstanding the verdict and for a new trial. However, defendants' motion for a remittitur of punitive damages is granted to the extent stated herein. Initially, this court must note that it has given the defendant the benefit of any doubt in ruling on its post-trial motions and has expressly overruled plaintiff's objections that defendants' motion for judgment as a matter of law was untimely.

 I. Defendants' Motion for Judgment as a Matter of Law as to Plaintiffs' Punitive Damage Claims

 A. Applicable Standards

 Defendants contend that Tandy's motion for judgment as a matter of law as to plaintiffs' punitive damage claims should have been granted. The standard that must be met before judgment as a matter of law may be granted is formidable. Judgment as a matter of law "is proper only if, when the evidence is viewed in the light least favorable to the moving party, the verdict is unsupported." Isaksen v. Vermont Castings, Inc., 825 F.2d 1158, 1163 (7th Cir. 1987), cert. denied, 486 U.S. 1005, 100 L. Ed. 2d 193, 108 S. Ct. 1728 (1988). In determining whether to grant or deny such a motion, the district court must first determine "whether the evidence presented, combined 'with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party to whom the motion is directed.'" Cygnar v. Chicago, 865 F.2d 827, 834 (7th Cir. 1989); see also Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985). A district court is not free to weigh the evidence, judge the credibility of the witnesses, or substitute its judgment of the facts. Cygnar, 865 F.2d at 834; Rakovich v. Wade, 850 F.2d 1180, 1188 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S. Ct. 497, 102 L. Ed. 2d 534 (1988); Wright & Miller, 9A Federal Practice and Procedure § 2527, at 282-88 (1995). "If the evidence, taken as a whole, provides a sufficient probative basis upon which a jury could reasonably reach a verdict, without speculation over legally unfounded claims, the motion should be denied." Cygnar, 865 F.2d at 835.

 In a nutshell, defendants' main argument for setting aside the jury's verdict on punitive damages is that punitive damages may only be assessed against a corporation for the misconduct of an employee who acts in a "managerial capacity." Defendants propose their own definition of "an employee who acts in a managerial capacity" and argue that Delbovo does not fit this definition. They therefore argue that Tandy, as a matter of law, cannot be liable for punitive damages, and that their motion for judgment as a matter of law should have been granted as to the plaintiffs' punitive damage claims against Tandy. However, as will be discussed in Part II, infra, defendants' proposed definition of "managerial capacity" is not an accurate statement of the law to be applied in this case.

 After reviewing the record, this court finds that there is sufficient evidence to support a jury's determination that Delbovo acted in a "managerial capacity," as that term was defined by the jury instruction on punitive damages. Defendants' motion for a judgment as a matter of law as to plaintiff Michael Florez's punitive damage claims is therefore denied.

 II. Defendants' Motion For a New Trial

 A. Applicable Standards

 Defendants have also moved for a new trial. A district court has broad discretion in determining whether or not to grant a new trial. McNabola v. Chicago Transit Auth., 10 F.3d 501, 516 (7th Cir. 1993). To make this decision, the court must consider "if the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party." Id. (citations omitted). A court may only vacate a jury's verdict for excessive damages if the award is "monstrously excessive" or has "no rational connection to the evidence." DeBiasio v. Illinois Central R.R., 52 F.3d 678, 687 (7th Cir. 1995); McNabola, 10 F.3d at 516. If the court decides that a remittitur is appropriate, the plaintiff has the choice to either accept the remittitur or receive a new trial on damages. See Stafford v. Puro, 63 F.3d 1436, 1445 (7th cir. 1995); McNabola, 10 F.3d at 516, n.10; Wright, Miller & Kane, 11 Federal Practice and Procedure § 2815, at 169 (1995). If the plaintiff accepts the remittitur, the motion for a new trial on damages must be denied. See Nelson v. Basit, No. 83 C 1683, 1994 WL 30980, *12 (N.D. Ill. 1994) (Norgle, J.), aff'd w/o op. 62 F.3d 1419 (7th Cir. 1995).

 Defendants' motion for a new trial is based on several alleged prejudicial errors. The following sections deal with these alleged errors in turn.

 B. Evidence Relating to David Florez

 Defendants first argue that there was prejudicial error because their in limine motion to bar evidence relating to plaintiff's brother David Florez was denied. However, the jury was instructed to consider this evidence only in relation to the claim of Ann Florez. (Tr., at 379). Because the jury found in favor of the defendants on her claim and because the defendants have not met their burden of showing prejudice against them as to Michael Florez's claim, their motion for a new trial on this basis is denied.

 C. Testimony Concerning Apology

 Defendants also argue that prejudicial error occurred because Dr. Forbes was permitted to testify that Ann Florez had pursued an apology from defendants, in violation of this court's in limine order relating to settlement negotiations. However, Forbes's testimony on direct examination was very brief, did not mention settlement negotiations per se, and was consistent with the psychological testimony she was giving at the time. (See Tr., at 110). In addition, defendants did not move to strike the testimony regarding the apology when it came out on direct examination, and, in fact, solicited more extensive testimony from Forbes on the subject of an apology upon cross-examination. (See Tr., at 161-63). Because of the clearly non-prejudicial nature of Forbes's testimony on direct examination and because defendants' solicited such testimony on cross-examination, defendants' motion for a new trial on this basis is denied.


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