Weber v. FUJIFILM Med Sys USA Inc et al

Filing 533

ORDER: Plaintiff's Motion 523 for Assessment of Lost Wages is DENIED, and Defendants' Motion 526 for Oral Argument on that motion is also DENIED. Plaintiff's Motion for Prejudgment Remedy 528 is GRANTED in the amount of $7 77,131.12. Plaintiff's Motion 529 for Disclosure of Assets is DENIED. Plaintiff's Motion 519 to Correct is GRANTED. The Clerk is directed to amend the judgment to reflect an award of prejudgment interest in the amount of $55,592 .68, for a total award of $772,949.68. Defendants are directed to post a supersedeas bond, which will also satisfy their obligation to post a bond in order to stay the effect of the prejudgment remedy, in the amount of $777,131.12. Signed by Judge Janet Bond Arterton on 12/16/2013. (Bonneau, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN J. WEBER,
Plaintiff,
v.
FUJIFILM MEDICAL SYSTEMS U.S.A., INC., et al.,
Defendants.

Civil No. 3: 10cv401 (JBA)

December 16, 2013

RULING ON PENDING MOTIONS
Following a jury trial, the jury returned a verdict finding Defendant FujiFilm
Medical Systems U.S.A., Inc. (“FMSU”) liable on Plaintiff John Weber’s claimed breach of
contract and breach of implied covenant of good faith and fair dealing, and finding
Defendants FujiFilm Holdings America Corporation (“HLUS”) and FujiFilm
Corporation liable on Mr. Weber’s claimed tortious interference with business contract
and tortious interference with business expectancy. The jury found no liability on Mr.
Weber’s Title VII national origin discrimination claim, Connecticut Fair Employment
Practices Act (“CFEPA”) national origin and age discrimination claims, Age
Discrimination in Employment Act (“ADEA”) claim, and defamation claim. The jury
awarded $150,000 in compensatory damages for non-economic injuries caused by
Defendants’ conduct, and $567,357 plus prejudgment interest for economic injuries
caused by FMSU’s breach of contract.
Plaintiff and Defendants filed a variety of post-trial motions regarding the validity
of these findings. In a ruling on the parties’ post-trial motions, the Court upheld the jury
verdict and damages award and granted pre-judgment interest at a simple annual rate of
four percent from January 1, 2010 to June 15, 2012. (See Ruling on Post-Trial Motions
(“Ruling”) [Doc. # 518] at 35, 39.) The Court also granted Plaintiff’s motion for the

assessment of lost wages on his tortious inference claims (see id. at 33), and directed the
parties to file supplemental briefing on “the amount of lost wages, if any” to be assessed
on those claims (Scheduling Order [Doc. # 521]). In accordance with the Court’s order,
Plaintiff now moves [Doc. # 523] for the assessment of lost wages. Plaintiff also moves to
correct the judgment in light of a clerical error [Doc. # 519], for prejudgment remedy
against Defendants [Doc. # 528], and for disclosure of assets by Defendants [Doc. # 529].
For the following reasons, Plaintiff’s motions to correct and for prejudgment remedy are
granted, and Plaintiff’s remaining motions are denied.
I.

Motion to Correct [Doc. # 519]
Plaintiff moves pursuant to Federal Rule of Civil Procedure 60(a) to correct the

Court’s award of prejudgment interest in the Court’s Ruling on the post-trial motions
and in the Amended Judgment [Doc. # 517]. Rule 60(a) provides that a “court may
correct a clerical mistake or a mistake arising from oversight or omission whenever one is
found in a judgment, order, or other part of the record.” “[A] Rule 60(a) motion is
appropriate where the judgment has failed accurately to reflect the actual decision of the
decision maker to award [prejudgment] interest.” Robert Lewis Rosen Associates, Ltd. v.
Webb, 473 F.3d 498, 504 (2d Cir. 2007) (internal citations and quotation marks omitted).
In its Ruling, the Court awarded prejudgment interest “at a simple annual rate of
four percent from January 1, 2010 . . . to June 15, 2012 . . . for a total award of $32,899.13
in prejudgment interest.” (Ruling at 35.) In his motion to correct, Plaintiff accurately
points out that four percent simple interest on Plaintiff’s economic damages over that
time period results in a total award of $55,592.68, rather than $32,899.13. (See Pl.’s Reply

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re Mot. to Correct [Doc. # 522] at 2.)1 The Court’s initial award of $32,899.13 was based
on a computational error and does not accurately reflect the amount of interest the Court
intended to award Plaintiff. Defendants do not dispute that the Court has the authority
to correct this clerical error pursuant to Rule 60(a). Rather, for the first time in their
opposition to Plaintiff’s motion to correct, Defendants argue that the Court’s award of
prejudgment interest should run from June 30, 2010 to June 15, 2012. Defendants base
this argument on the fact that Plaintiff’s employment contract provided for a payout of
salary and benefits “for a period of one year,” rather than entitling Plaintiff to one lump
sum payout. (See Defs.’ Opp’n re Mot. to Correct [Doc. # 520] at 1–2.)
Defendants failed to raise this argument in the original briefing on Plaintiff’s
motions [Doc. ## 478, 479] for assessment of prejudgment interest, and it cannot
properly be raised before this Court for the first time in their opposition to the pending
motion. Cf. Packer v. SN Servicing Corp., 250 F.R.D. 108, 112 (D. Conn. 2008) (“It is well
settled that a failure to brief an issue is grounds to deem the claim abandoned.”).
Defendants should not receive an extra opportunity to raise issues with the Court based
on the fortuity of a clerical error in a previous ruling. Further, the Court cannot grant the
relief requested by Defendants under Rule 60(a). The Court intended in its initial Ruling
for the interest award to begin running on January 1, 2010, and thus, changing that date
would represent more than the correction of a clerical error. Such action would represent
a change to the substantive rights of the parties. Therefore, in order to correct the Court’s

1

In his initial motion, Plaintiff requested an award of $55,789.34 in prejudgment
interest. (See Pl.’s Mot. to Correct [Doc. # 518] at 2.) However, Plaintiff concedes in his
reply that this original amount was based on a calculation error and that the correct
amount is $55,592.68. (See Pl.’s Reply re Mot. to Correct [Doc. # 522] at 2 n.1.)
3

clerical error, the Plaintiff’s motion to correct is granted, and the Court awards
prejudgment interest in the amount of $55,592.68.
II.

Motion for Assessment of Lost Wages [Doc. # 523]2
In its Ruling on the post-trial motions the court held that “an award of front pay

and back pay may be appropriate in a tortious interference case in the employment
context.” (See Ruling at 32–33). The Court further recognized that:
The damages . . . that an employee whose employment is terminable at will
is entitled [to], if discharged because of interference by another, are those
damages that can be reasonably established, taking into account the type
and stability of the employment; the past employment record; the
employee’s age, health, ability to labor; and the probability that they
employment would otherwise have continued. The sum that an employee
would have earned had such employment continued is prima facie the
measure of damages. Where it appears that a discharged employee has lost
considerable time without being able to secure work and that this
condition will continue for some time in the future, the damages may
include loss of employment, not only up to the time of the action, but also
future unemployment.
(See id. at 32 (quoting 44B Am. Jur. 2d interference § 612).) Based on these factors,
Plaintiff moves for the assessment of $6,457,738 in compensatory damages for lost wages
on his tortious interference claims. Defendants oppose Plaintiff’s motion, arguing that
Plaintiff has failed to establish that their tortious conduct was the proximate cause of any
economic damage.
“It is axiomatic . . . that in every tort action, the fact finder may award economic
damages only if the plaintiff has proven those damages to a reasonable certainty and has
shown that the defendant had proximately caused the damages.” Jones v. Kramer, 267
2

Defendants’ move [Doc. # 526] for oral argument on Plaintiff’s motion for
assessment of lost wages. The Court has determined that oral argument is unnecessary
for the resolution of Plaintiff’s motion, and therefore Defendants’ motion for oral
argument is denied.
4

Conn. 336, 350 n.7 (2004).

Thus, Plaintiff bears the burden of proving by a

preponderance of the evidence that Defendants’ tortious conduct proximately caused his
alleged lost wages damages. The Court described the nature of Defendants’ tortious
conduct in its Ruling on the post-trial motions:
Plaintiff points to evidence from which the jury could conclude that HLUS
and FujiFilm Corporation had improperly targeted Plaintiff for
termination, and attempted to manufacture “cause” to fire him in order to
avoid FMSU’s payment obligation under Plaintiff’s contract for
termination without cause. . . . This is not to suggest that it would be
improper for a parent company to direct its subsidiary to fire an employee
for economic or performance-related reasons, or to investigate allegations
of employee misconduct and perform other “garden-variety personnel
actions.” Thus, under similar circumstances, a parent company could
properly have directed its subsidiary to fire an employee without cause and
without severance. However, a parent company’s actions become
wrongful when it directs its subsidiary to falsely designate an employee’s
termination with the damaging label “for cause” just to avoid the financial
obligations to pay severance for a without-cause termination. . . . The
evidence at trial was sufficient to permit a jury to infer that Defendants
FujiFilm Corporation and HLUS encouraged FMSU to make such an
unjustified designation when terminating Plaintiff, forming the basis of
their verdicts on tortious interference.
(Ruling at 7, 10–11 (internal citations omitted).) Defendants argue that Plaintiff must
therefore show that his proposed lost wages damages were proximately caused by
Defendants’ decision to falsely designate Plaintiff’s termination as “for cause” in order to
recover compensatory damages on his tortious interference claims.
Plaintiff contests Defendants’ characterization of his burden, arguing that the
Court’s Ruling did not limit the grounds for upholding the jury’s verdict on the tortious
interference counts and thus Plaintiff may recover all lost wages flowing from his
termination, whether or not the fact that his termination was “for cause” proximately
caused those damages. However, Plaintiff misinterprets the Court’s Ruling. The Court
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considered and rejected Plaintiff’s alternative arguments for upholding the jury verdict,
and based on a review of the trial record, concluded that the only grounds based on which
the jury could have properly found that Defendants conduct constituted tortious
interference was their directive that Plaintiff be fired “for cause” where no such cause
existed. The Court was careful to explain in its Ruling that in the absence of a finding of
race or age discrimination by the jury, Defendants were within their rights to direct that
Plaintiff be fired without cause and without severance. (See id. at 10–11); see also
Boulevard Assocs. v. Sovereign Hotels, 72 F.3d 1029, 1036 (2d Cir. 1995) (“[A] parent
company does not engage in tortious conduct when it directs its wholly-owned subsidiary
to breach a contract that is no longer in the subsidiary’s economic interest to perform.”).
However, by directing that the damaging and unwarranted label of “for cause” be applied
to Plaintiff’s termination, Defendants’ actions became tortious. (See id. at 11.) Apart
from this improper means of termination, the Court found no basis in the record to
support a finding of improper motive as Plaintiff suggests. Thus, in order for Plaintiff to
recover economic damages, he must show that the “for cause” designation was the
proximate cause of his lost wages.3

3

Defendants argue preemptively in their opposition that Plaintiff is not entitled to
reputational damages in connection with his tortious interference claims. However,
Plaintiff’s motion is limited to a discussion of the basis for and amount of lost wages that
should be awarded. To the extent that Plaintiff seeks non-economic reputational
damages, he has failed to meet his burden to establish the quantum of such damages or
that such alleged damages were proximately caused by the “for cause” designation of his
termination. The jury returned a verdict of no liability on Plaintiff’s defamation claim,
and such a finding militates against the award of reputational damages in connection
with Plaintiff’s tortious interference claims. Further, the evidence at trial tended to
establish that Defendants did not announce the “for cause” nature of Plaintiff’s
termination. A press release announcing Plaintiff’s departure from FMSU notes his “24
years of dedicated service,” and identifies Plaintiff as a key member of the executive
6

As Defendants argue, the evidence at trial established that Defendants intended to
terminate Plaintiff’s employment regardless of whether this termination was for cause.
Mr. Tada testified at trial that by July of 2009, before he discovered the Empiric filing
which ultimately resulted in Plaintiff’s termination being designated as “for cause,” he
had decided to ask for Plaintiff’s resignation as of the end of the year. (See Trial Tr. at
1502–03, App’x II to Defs.’ Opp’n; see also Trial Ex. 42, App’x I to Defs.’ Opp’n.) Thus,
the ultimate decision to wrongly designate Plaintiff’s termination as “for cause” did not
proximately cause or accelerate Plaintiff’s termination. Because Plaintiff cannot show
that by a preponderance of the evidence that he otherwise would have remained
employed at FMSU, he has not met his burden to establish that he is entitled to lost wages
flowing from his continuing employment at the company.
However, if Plaintiff could show that the designation of his termination as “for
cause” proximately caused his inability to find comparable employment, he would still be
entitled to lost wages damages. In his reply, Plaintiff cites his testimony that his current
employer Regenecin was the only employer to accept his explanation for his termination
in support of his argument that his inability to find alternate employment was
proximately caused by his “for cause” termination. (See Pl.’s Reply [Doc. # 525] at 6.)
However, the reply mischaracterizes Plaintiff’s testimony. At trial Plaintiff testified as
follows: “Well, I took the position with Regenecin primarily because I wasn’t able to get a
job anywhere else, and I explained the situation here, that I was terminated, and they
accepted the explanation and put me on the board of directors.” (Trial Tr. at 355.)
Plaintiff did not testify that no other employer would accept his explanation for his

committee that helped transform FMSU. (See Trial Ex. 5A, App’x I to Defs.’ Opp’n [Doc.
# 524] at 2.)
7

termination. Plaintiff’s testimony that he believed he was harmed by his “termination”
(see id. at 354) is speculative and does not specify whether it was the designation of his
termination as “for cause” or merely the fact of his termination itself that caused this
harm. Plaintiff also testified that a co-worker and customer asked him whether he had
been terminated for cause after learning that he was leaving FMSU. (See Trial Tr. at 190–
93, 199–200).4 However, there was no evidence at trial that any of Plaintiff’s potential
future employers knew Plaintiff was terminated “for cause” or that they refused to hire
Plaintiff as a result of this “for cause” designation. Rather, Defendants’ press release
regarding Plaintiff’s departure notes his “24 years of committed service” and the fact that
he was “a leading member of the executive committee that transformed FujiFilm.” (Trial
Ex. 5A at 2.)
Therefore, Plaintiff has failed to establish by a preponderance of the evidence that
Defendants’ tortious decision to falsely designate his termination as “for cause”
proximately caused his alleged lost wages, and the Court declines to award economic
damages in connection with his tortious interference claims.5 Plaintiff’s motion for the
assessment of lost wages is denied.6

4

These hearsay statements were admitted only for the limited purpose of showing
their effect on Plaintiff and the jury has awarded emotional damages to compensate
Plaintiff for the anguish that these inquiries caused.
5
This finding is not inconsistent with the requirement that a plaintiff must suffer
“actual loss” in order to succeed on a tortious interference claim. “[A]n award of
compensatory damages is not necessary to establish a cause of action for tortious
interference as long as there is a finding of actual loss.” Hi-Ho Tower, Inc. v. ComTronics, Inc., 255 Conn. 20, 34 (2000). As the Court recognized in its Ruling, “[f]alsely
terminating an employee for cause has the potential to damage that individual’s
reputation and psyche and to limit his or her future employment opportunities and
earning potential, thus causing him serious injury.” (Ruling at 11.) The jury has already
compensated Plaintiff for his “actual loss” by awarding $150,000 in non-economic
8

III.

Motions for Prejudgment Remedy and for Disclosure of Assets [Doc. ## 528,
529]
During the pendency of his motion for assessment of lost wages, Plaintiff moved

[Doc. # 528] for prejudgment remedy in the amount of $7 million, and [Doc. # 529] for
disclosure of assets by Defendants to secure that remedy. Defendant opposes these
motions, arguing that it would be inappropriate to grant a prejudgment remedy at such
an advanced stage in the litigation, that there is not probable cause to support a remedy in
the amount of $7 million, that they should be permitted to post a supersedeas bond in the
amount of the jury verdict in lieu of a prejudgment remedy, and that the Court should
award Defendants costs and attorney’s fees in connection with their opposition to these
motions.
A plaintiff is permitted to utilize state prejudgment remedies to secure a judgment
that might ultimately be rendered in a federal action pursuant to Fed. R. Civ. P. 64, which
states:
At the commencement of and during the course of an action, all remedies
providing for seizure of person or property for the purpose of securing
satisfaction of the judgment ultimately to be entered in the action are
available under the circumstances and in the manner provided by the law
of the state in which the district court is held, existing at the time the
remedy is sought.

damages for the emotional trauma he suffered as a result of Defendants’ false designation
of his termination as “for cause.”
6
Because the Court concludes that Plaintiff failed to show that Defendants’
tortious conduct was the proximate cause of his alleged damages, it need not address
Plaintiff’s arguments (1) that the failure to mitigate defense is not applicable to his claims,
(2) that Defendants are collaterally estopped from challenging the damages calculation of
Plaintiff’s expert, (3) that “after-acquired” evidence cannot be used to limit Plaintiff’s
recovery, and (4) that Defendants’ are jointly and severally liable for the alleged lost wages
damages.
9

Connecticut law provides for the award of a prejudgment remedy at Conn. Gen. Stat.
§ 52–278a et seq. Section 52–278c sets forth the required documents to be filed with the
court and the requirements of service on the defendant of notice of intent to secure a
prejudgment remedy. A prejudgment remedy may be obtained when Plaintiff establishes
that there is probable cause to sustain the validity of his claims. See Conn. Gen.Stat. § 52–
278d. Connecticut courts have defined “probable cause” within the meaning of this
statute as “a bona fide belief in the existence of the facts essential under the law for the
action and such as would warrant a man of ordinary caution, prudence and judgment,
under the circumstances, in entertaining it.” Three S. Development Co. v. Santore, 193
Conn. 174, 175 (1984) (citation omitted). Generally, a hearing is required before a
prejudgment remedy may issue. See Conn. Gen. Stat. § 52-278d. However, because there
has already been a trial and jury verdict on Plaintiff’s claims, such a hearing is
unnecessary in this case. Cf. Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152,
156 (1991) (noting that the hearing required by the prejudgment remedy “is not
contemplated to be a full scale trial on the merits of plaintiff’s claims.”); New England
Health Care Employees Welfare Fund v. iCare Management, LLC, 792 F. Supp. 2d 269, 283
(D. Conn. 2011).
Plaintiff argues that there is probable cause to support a prejudgment remedy in
the amount of $7 million. The jury awarded $150,000 in compensatory damages for noneconomic injuries caused by Defendants’ conduct, and $567,357 for economic injuries
caused by FMSU’s breach of contract. The Court has also awarded $55,592.68 in
prejudgment interest. Thus, in light of the jury’s verdict and this Court’s prior rulings,
there is probable cause to support a prejudgment remedy in the amount of $772,949.68.
Further, pursuant to 28 U.S.C. § 1961, Plaintiff is entitled to post-judgment interest on his
10

award at the rate of 0.18% compounding annually. Assuming that it will take, on average,
an additional eighteen months to resolve the parties’ appeal of this matter, there is
probable cause to support a finding that Plaintiff will receive roughly $4,181.44 in postjudgment interest, which would support a total prejudgment remedy of $777,131.12.
However, as discussed above, the Court concludes that the evidence at trial was not
sufficient to establish that Defendants’ tortious conduct was the proximate cause of
Plaintiff’s claimed lost-wages damages, and the Court awards zero economic damages in
connection with Plaintiff’s tortious interference claims. Thus, there is not probable cause
to support an award in the full amount of Plaintiff’s claimed damages.
Defendant argues that Plaintiff is not entitled to a prejudgment remedy at this late
stage in the litigation, where a jury verdict has been rendered and the Court has entered a
final judgment. However, Connecticut courts have recognized that “a prejudgment
remedy is available to a party who has prevailed at the trial level and whose case is on
appeal.” Gagne v. Vaccaro, 80 Conn. App. 436, 454 (2003); see also id. at 453 n. 15
(collecting cases).7 As the Connecticut Appellate Court has explained:
The purpose of the [prejudgment remedy] statute is to allow a plaintiff
who can show probable cause that he will eventually succeed on the merits
to encumber property of the defendant to protect himself from obtaining a
judgment which cannot be satisfied. At the same time the statute seeks to
protect the defendant from unreasonable encumbrances. It is as necessary
to protect a plaintiff who has won at the trial level, when the final
disposition of the case awaits appellate proceedings, as it is to protect that
same plaintiff before trial. There is no reason to assume that the legislature
intended, by using the phrase ‘final judgment,’ to deprive a plaintiff, who
awaits final disposition of the case, of the protection afforded by this
statute.

7

In light of this precedent, the Court concludes that Plaintiff’s motion for
prejudgment remedy was not frivolous and does not merit an award of costs and
attorney’s fees pursuant to 28 U.S.C. § 1927.
11

Id. at 453 (internal citations and quotation marks omitted). Thus, the fact that a verdict
and judgment has already entered in this case does not render Plaintiff’s motion moot.
Defendants argue that they should be permitted to satisfy any prejudgment
remedy and to avoid disclosure of their assets by posting a bond. See Tucker v. Journal
Register East, No. 3:06cv307 (SRU), 2009 WL 426460, at *1 (D. Conn. Feb. 20, 2009)
(“The defendant may, if it so chooses, satisfy the prejudgment remedy and avoid
disclosure of assets by posting a bond.”); Conn. Gen. Stat. § 52-278d(c) (“If an application
for a prejudgment remedy is granted and the defendant moves the court for a stay, the
court may, if it determines justice so requires, stay such order if the defendant posts a
bond, with surety, in a sum determined by such judge to be sufficient to indemnify the
adverse party for any damage which may accrue as a result of such stay.”); Conn. Gen.
Stat. § 52-278n(d) (“A defendant, in lieu of disclosing assets pursuant to subsection (a) of
this section, may move the court for substitution . . . of a bond with surety.”). Defendant
argues that any bond posted in connection with the prejudgment remedy should also
serve as a supersedeas bond for the purposes of its appeal.

Plaintiff opposes this

proposition, arguing that the premiums paid on the prejudgment remedy bond should
not be treated as taxable costs against him in the event Defendants prevail on appeal.
However, to require Defendants to post two bonds, one in connection with the
prejudgment remedy and the other in connection with their appeal, would be an
inefficient waste of resources. Thus the Court will treat Defendants’ prejudgment remedy
bond as a supersedeas bond in order to avoid such inefficiency.
Therefore the Court grants Plaintiff’s motion for prejudgment remedy in the
amount of $777,131.12 and denies Plaintiff’s motion for disclosure of assets. Defendant is
ordered to post a bond in that amount to satisfy the prejudgment remedy and avoid
12

disclosure of assets, which this Court will also treat as a supersedeas bond for purposes of
Defendants’ appeal.
IV.

Conclusion
Plaintiff’s Motion [Doc. # 523] for Assessment of Lost Wages is DENIED, and

Defendants’ Motion [Doc. # 526] for Oral Argument on that motion is also DENIED.
Plaintiff’s Motion for Prejudgment Remedy [Doc. # 528] is GRANTED in the amount of
$777,131.12.

Plaintiff’s Motion [Doc. # 529] for Disclosure of Assets is DENIED.

Plaintiff’s Motion [Doc. # 519] to Correct is GRANTED. The Clerk is directed to amend
the judgment to reflect an award of prejudgment interest in the amount of $55,592.68, for
a total award of $772,949.68. Defendants are directed to post a supersedeas bond, which
will also satisfy their obligation to post a bond in order to stay the effect of the
prejudgment remedy, in the amount of $777,131.12.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 16th day of December, 2013.

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