O'Phelan v. Loy et al

Filing 496

ORDER (1) GRANTING PLAINTIFF'S MOTION FOR JUDGMENT AS A MATTER OF LAW; (2) CONDITIONALLY DENYING PLAINTIFF'S ALTERNATIVE MOTION FOR A NEW TRIAL; (3) DENYING DEFENDANTS MOTION TO CORRECT JUDGMENT; AND (4) DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW re 474 re, 481 re, 472 . Signed by JUDGE ALAN C KAY on 5/23/11. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

ELLEN J. O’PHELAN,
Plaintiff,
v.
GERARD LEE LOY; BENTON BOLOS,
individually and as Police
detective; COUNTY OF HAWAII,
Defendants.

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Civ. No. 09-00236 ACK-KSC

ORDER (1) GRANTING PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF
LAW; (2) CONDITIONALLY DENYING PLAINTIFF’S ALTERNATIVE MOTION FOR
A NEW TRIAL; (3) DENYING DEFENDANT’S MOTION TO CORRECT JUDGMENT;
AND (4) DENYING DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF
LAW
BACKGROUND1/
Plaintiff Ellen J. O’Phelan brought this action against
Defendants Gerard Lee Loy, Benton Bolos, and the County of
Hawai‘i on May 26, 2009.

Doc. No. 1.

On February 18, 2011,

Chief Judge Mollway granted summary judgment in favor of Bolos
and the County of Hawai‘i, and dismissed on summary judgment all
but two of the claims against Lee Loy.

Doc. No. 314.2/

On April

1/

As the Court and the parties are familiar with the
background of this case, the Court will discuss only those facts
relevant to the instant motions. For a detailed discussion of
the factual and procedural background of this case, see this
Court’s Order dated February 18, 2011. Doc. No. 314.
2/

This case was reassigned to this Court on February 25,
(continued...)

12, 2011, a jury trial commenced solely on O’Phelan’s claim that
Lee Loy had invaded her privacy.
On April 21, 2011, following five days of trial and
three days of deliberation, the jury found by special verdict (1)
that “Plaintiff proved by a preponderance of the evidence that
Defendant intentionally intruded upon Plaintiff’s privacy by
improperly obtaining, without Plaintiff’s consent or waiver or a
court order as required, her medical records (including police
reports containing her medical records) relating to her injuries
from the alleged sexual assault”; and (2) that “Plaintiff proved
by a preponderance of the evidence that this intrusion was
substantial, and of a kind that would be highly offensive to an
ordinarily reasonable person”; but (3) that Plaintiff did not
“prove[] by a preponderance of the evidence that this intrusion
caused Plaintiff to sustain injury, damage, loss or harm.”
No. 466 at 1-2 (special verdict form).

Doc.

The Court published this

special verdict and polled the jury, determining that the verdict
was unanimous.

Pursuant to Fed. R. Civ. P. 58(b)(2), the Court

directed the clerk to enter judgment in favor of O’Phelan.

The

judgment, which was entered on April 21, 2011, stated that “no
damages are awarded pursuant to the Special Verdict Form filed on
April 21, 2011.”

2/

2011.

Doc. No. 471.

(...continued)
Doc. No. 316.
2

Three motions are now before the Court.3/

First, on

April 22, 2011, O’Phelan moved for judgment as a matter of law
or, alternatively, for a new trial.

Doc. No. 472.

Lee Loy

opposed this motion on April 26, 2011 (“Opp’n”), and O’Phelan
filed a reply on May 2, 2011 (“Reply”).

Doc. Nos. 479, 484.4/

Second, on April 23, 2011, Lee Loy moved to amend the judgment.
Doc. No. 474.

Third, on May 2, 2011, Lee Loy moved for judgment

as a matter of law.

Doc. No. 481.

O’Phelan has not filed

oppositions in response to either of Lee Loy’s motions.
The Court finds that a hearing on these motions is
neither necessary nor appropriate.

See LR 7.2(e).

LEGAL STANDARDS
I.

Motion for Judgment As a Matter of Law
Federal Rule of Civil Procedure 50 states, in relevant

part:
(a) Judgment as a Matter of Law.
3/

Throughout this Order, the Court will use the term
“Motion” in reference to the particular memorandum of law
submitted in support of the motion being discussed in that
section.
4/

On May 2, 2011, O’Phelan moved to stay proceedings for 30
days so that she could review the trial record and supplement her
post-trial motions and responses with specific citations to the
record. Doc. No. 486. Finding that O’Phelan had not shown good
cause for her request, the Court denied the motion on May 3,
2011. Doc. No. 488. Also on May 2, 2011, O’Phelan filed a
duplicate of the reply in support of her motion, erroneously
labeling it as a “cross motion.” Doc. No. 483. Lee Loy filed an
opposition to O’Phelan’s “cross motion” on May 4, 2011. Doc. No.
489.
3

(1) In General. If a party has been fully heard on an
issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue,
the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law
against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only
with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law
may be made at any time before the case is submitted to
the jury. The motion must specify the judgment sought
and the law and facts that entitle the movant to the
judgment.
(b) Renewing the Motion After Trial; Alternative Motion
for a New Trial. If the court does not grant a motion
for judgment as a matter of law made under Rule 50(a),
the court is considered to have submitted the action to
the jury subject to the court’s later deciding the
legal questions raised by the motion. No later than 28
days after the entry of judgment--or if the motion
addresses a jury issue not decided by a verdict, no
later than 28 days after the jury was discharged--the
movant may file a renewed motion for judgment as a
matter of law and may include an alternative or joint
request for a new trial under Rule 59. In ruling on the
renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned
a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(a) and (b).
Judgment as a matter of law is authorized only when a
jury’s verdict is not supported by substantial evidence.

See

Mockler v. Multnomah County, 140 F.3d 808, 815, n.8 (9th Cir.

4

1998).

“‘Substantial evidence is such relevant evidence as

reasonable minds might accept as adequate to support a conclusion
even if it is possible to draw two inconsistent conclusions from
the evidence.’”

Gilbrook v. City of Westminster, 177 F.3d 839,

856 (9th Cir. 1999) (citation omitted).
“[T]he standard for granting summary judgment ‘mirrors’
the standard for judgment as a matter of law, such that ‘the
inquiry under each is the same.’”

Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000) (citation omitted).

Thus,

in deciding whether judgment as a matter of law is warranted, the
Court may not assess the credibility of witnesses and must draw
all reasonable inferences in the nonmovant’s favor.
F.3d at 865.

Bell, 341

The Court “may not substitute its view of the

evidence for that of the jury.”

Johnson v. Paradise Valley

Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001); see also
Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 707 (7th
Cir. 2004) (“Our job at this stage is not to determine whether
the jury believed the right people, but only to assure that it
was presented with a legally sufficient basis to support the
verdict.”).
The Ninth Circuit “strictly adhere[s] to the
requirements of Rule 50(b), which prohibit a party from moving
for judgment as a matter of law after the jury’s verdict unless
that motion was first presented at the close of evidence.”

5

Image

Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1212
(9th Cir. 1997).

If a party fails to make a motion for judgment

as a matter of law under Rule 50(a) before the case is submitted
to the jury, “a party cannot question the sufficiency of the
evidence either before the district court . . . or on appeal.”
Cabrales v. County of Los Angeles, 864 F.2d 1454, 1459 (9th Cir.
1988) (emphasis omitted), vacated on other grounds, 490 U.S. 1087
(1989).
The single exception to this rule is the plain error
doctrine.

Id.

“Only where there is such plain error apparent on

the face of the record that failure to review would result in a
manifest miscarriage of justice should the [motion be granted].”
Id.

In other words, there must be “an absolute absence of

evidence to support the jury’s verdict” for a court to grant a
post-trial motion for judgment as a matter of law where the party
failed to move for judgment as a matter of law before the case
was submitted to the jury.

Image Technical Servs., 125 F.3d at

1212 (citation omitted).
II.

Motion for a New Trial
A motion for a new trial is governed by Federal Rule of

Civil Procedure 59, which provides that after a jury trial,
“[t]he court may, on motion, grant a new trial on all or some of
the issues – and to any party . . . for any reason for which a

6

new trial has heretofore been granted in an action at law in
federal court.”

Fed. R. Civ. P. 59(a).

“Rule 59 does not specify the grounds on which a motion
for a new trial may be granted.”

Zhang v. Am. Gem Seafoods,

Inc., 339 F.3d 1020, 1035 (9th Cir. 2003).

Instead, the Court is

“bound by those grounds that have been historically recognized.”
Id.

“Historically recognized grounds include, but are not

limited to, claims ‘that the verdict is against the weight of the
evidence, that the damages are excessive, or that, for other
reasons, the trial was not fair to the party moving.’”

Molski v.

M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (citation
omitted).

In ruling on a motion for a new trial, “the district

court has ‘the duty to weigh the evidence as the court saw it,
and to set aside the verdict of the jury, even though supported
by substantial evidence, where, in the court’s conscientious
opinion, the verdict is contrary to the clear weight of the
evidence.’”

Id. (citation omitted and alterations).

In other words, in most cases, the judge should accept
the findings of the jury; however, if the judge is left with the
definite and firm conviction that a mistake has been committed,
he may grant a new trial:
On the one hand, the trial judge does not sit to
approve miscarriages of justice. His power to set
aside the verdict is supported by clear precedent at
common law and, far from being a denigration or a
usurpation of jury trial, has long been regarded as an
integral part of trial by jury as we know it. On the
7

other hand, a decent respect for the collective wisdom
of the jury, and for the function entrusted to it in
our system, certainly suggests that in most cases the
judge should accept the findings of the jury,
regardless of his own doubts in the matter. . . . If,
having given full respect to the jury’s findings, the
judge on the entire evidence is left with the definite
and firm conviction that a mistake has been committed,
it is to be expected that he will grant a new trial.
Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 137172 (9th Cir. 1987) (internal quotation and citations omitted).
“The judge can weigh evidence and assess the credibility of
witnesses, and need not view the evidence from the perspective
most favorable to the prevailing party.”

Id. at 1371.

But “the

court is not justified in granting a new trial ‘merely because it
might have come to a different result from that reached by the
jury.’”

Roy v. Volkswagen of America, Inc., 896 F.2d 1174, 1176

(9th Cir. 1990) (citation omitted).
A district court’s decision on a motion for new trial
is reviewed for abuse of discretion.

EEOC v. Pape Lift, Inc.,

115 F.3d 676, 680 (9th Cir. 1997).
III.

Motion to Amend Judgment
A party may file a motion to alter or amend judgment

under Federal Rule of Civil Procedure 59(e).

Reconsideration of

a judgment after its entry is “an ‘extraordinary remedy which
should be used sparingly in the interests of finality and
conservation of judicial resources.’” Kona Enters., Inc. v.
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation

8

omitted).

A Rule 59(e) motion “should not be granted, absent

highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear error,
or if there is an intervening change in the controlling law.”
389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.
1999).

A Rule 59(e) motion may be granted on four basic grounds:
“First, the movant may demonstrate that the motion is
necessary to correct manifest errors of law or fact
upon which the judgment is based. Second, the motion
may be granted so that the moving party may present
newly discovered or previously unavailable evidence.
Third, the motion will be granted if necessary to
prevent manifest injustice. Fourth, a Rule 59(e)
motion may be justified by an intervening change in
controlling law.”

McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999)
(alterations and citation omitted).

This Court “‘enjoys

considerable discretion in granting or denying’” a Rule 59(e)
motion.

Id. (citation omitted).
DISCUSSION

I.

O’Phelan’s Motion for Judgment As a Matter of Law
O’Phelan moves for judgment as a matter of law based on

the jury’s failure to award any amount of damages and its finding
that she failed to prove, by a preponderance of the evidence,
that Lee Loy’s intrusion upon her privacy caused her to sustain
injury, damage, loss or harm.

O’Phelan offers myriad reasons why

the Court should find, as a matter of law, that she is entitled
to at least one dollar in damages.
9

The Court is unpersuaded by

most of O’Phelan’s arguments.

However, based on the jury’s

conclusions (1) that Lee Loy intentionally intruded upon
O’Phelan’s privacy, and (2) that this intrusion was substantial
and of a kind that would be highly offensive to an ordinarily
reasonable person, but (3) that O’Phelan failed to establish
compensatory damages, the Court finds O’Phelan therefore is
entitled to an award of nominal damages of not more than one
dollar, as mandated by Jury Instruction No. 14.
such damages constitutes plain error.

Failure to award

Accordingly, the Court

grants O’Phelan’s motion for judgment as a matter of law and
awards her one dollar ($1.00) in nominal damages.
At the outset, the Court notes that O’Phelan contends
that her motion for judgment as a matter of law must be granted
if the jury verdict is not supported by substantial evidence.
Because O’Phelan did not move for judgment as a matter of law at
the close of evidence, however, the Court can review the jury’s
verdict only if “there is such plain error apparent on the face
of the record that failure to review would result in a manifest
miscarriage of justice.”

Cabrales v. County of Los Angeles, 864

F.2d 1454, 1459 (9th Cir. 1988), vacated on other grounds, 490
U.S. 1087 (1989).
O’Phelan first argues that she is entitled to an award
of damages as a matter of law because her testimony as to damages
was uncontested and uncontroverted.

10

Motion at 3-5, 7-8, 10.

According to O’Phelan, she “described with particularity her
damages regarding lost sleep, not knowing where the records went,
who received them, whether or not they hurt the investigation,
and testified specifically that she suffered from anxiety, stress
and worry.”

Id. at 3.

Because Lee Loy did not contest such

testimony, O’Phelan contends that the jury “must have had
something else in their minds or acted unreasonably with respect
to their view of the admissible evidence.”

Id. at 10.

O’Phelan’s argument is unpersuasive.

Jury Instruction

No. 7 explicitly instructed the jury that it need not “accept all
of the evidence as true or accurate”; that it was “the sole
judge[] of the credibility or ‘believability’ of each witness and
the weight to be given to his/her testimony”; and that it was
free to “accept or reject the testimony of any witness in whole
Doc. No. 459 at 8.5/

or in part.”

Accordingly, the jury was

free to reject O’Phelan’s testimony regarding damages regardless
of whether Lee Loy presented evidence contradicting such
testimony.

Apparently, the jury was not convinced by O’Phelan’s

testimony about the harm she suffered.

The Court may not second-

guess the jury’s credibility determinations or its weighing of
the evidence.

Johnson v. Paradise Valley Unified Sch. Dist., 251

F.3d 1222, 1227 (9th Cir. 2001).

5/

The Court notes that both parties agreed to all of the
jury instructions.
11

In any event, the jury could have reasonably found that
O’Phelan suffered no damage as a result of the invasion of
privacy because, among other things: there was no evidence of
injury aside from O’Phelan’s limited testimony; there was no
evidence that Lee Loy disclosed O’Phelan’s medical records or the
information contained therein to anyone else (beyond his limited
statements at the September 12, 2008 hearing, which Lee Loy
claimed only repeated similar statements O’Phelan had made at the
earlier TRO hearing); there was circumstantial evidence
suggesting that Lee Loy could have forthwith obtained O’Phelan’s
medical records legally in 2008 had he subpoenaed them; and there
was evidence that Lee Loy did obtain the records properly within
a year of the alleged sexual assault.

Moreover, notwithstanding

O’Phelan’s testimony that the invasion of privacy caused her to
suffer emotional distress, the jury could have reasonably found
that any emotional distress was instead caused by the alleged
sexual assault.

Under such circumstances, O’Phelan cannot show

plain error on the jury’s part.
O’Phelan next argues that she is entitled to an award
of damages as a matter of law because the jury may have
improperly relied upon matters other than the admitted evidence
or may have been confused by certain statements that they heard.
In particular, O’Phelan posits that in considering O’Phelan’s
damages, the jury may have improperly relied upon and/or been

12

confused by Lee Loy’s: (1) references to a “money case”; (2) his
attacks on O’Phelan’s credibility with regard to her allegations
of sexual assault; (3) his references to O’Phelan’s arrest; (4)
his dual role as an attorney and a party; (5) his statements that
he was “trying to do good” and “pursue justice”; and (6) his
suggestion that O’Phelan altered evidence.

See Motion at 3-9.

None of these grounds shows that the jury plainly erred
in its damage finding.

First, the Court instructed the jury to

disregard any references to a “money case.”

Because “‘[t]he law

presumes that jurors carefully follow the instructions given to
them,’” the Court rejects O’Phelan’s suggestion that such
references confused the jury.

Caudle v. Bristow Optical Co., 224

F.3d 1014, 1023 (9th Cir. 2000) (citation omitted).

Even absent

the Court’s instruction, O’Phelan could not show that on account
of Lee Loy’s references to a money case, it would be a manifest
miscarriage of justice if the Court left the jury’s finding of no
damages in place.
Second, the Court likewise instructed the jury on
several occasions that it was “not tasked to decide whether or
not Plaintiff was sexually assaulted.”
1023.

See Caudle, 224 F.3d at

Moreover, both parties presented evidence to the jury

about the underlying sexual assault, and both parties argued at
length about whether such an assault occurred.

O’Phelan used

evidence corroborating her allegations of sexual assault to

13

bolster her credibility, and Lee Loy used evidence (potentially)
undermining such allegations to attack O’Phelan’s credibility.
The Court thus rejects O’Phelan’s suggestion that the jury
improperly relied upon and/or was confused by attacks on
O’Phelan’s credibility with regard to her allegations of sexual
assault.6/
Third, the Court is unpersuaded by O’Phelan’s
suggestion that the jury improperly relied upon Lee Loy’s
references to O’Phelan’s arrest, and was confused by Lee Loy’s
dual role as an attorney and a party.

The Court instructed the

jury several times to disregard any mention of O’Phelan’s arrest.
And Jury Instruction No. 4 stated that “any statements,
objections or arguments made by the lawyers are not evidence in
the case,” while Jury Instruction No. 5 stated that “[e]xcept
when a counsel testifies as a witness, you must not consider as
evidence any statement of counsel made during the trial.”

Doc.

No. 459 at 5-6; see Caudle, 224 F.3d at 1023.7/

6/

Even absent the Court’s instructions regarding the
underlying sexual assault, O’Phelan could not show that on
account of attacks on her credibility, it would be a manifest
miscarriage of justice if the Court left the jury’s finding of no
damages in place.
7/

Further, even absent the Court’s instructions, O’Phelan
could not show that on account of Lee Loy’s references to
O’Phelan’s arrest and his role as an attorney and a party, it
would be a manifest miscarriage of justice if the Court left the
jury’s finding of no damages in place.
14

Fourth, O’Phelan cannot show that she is entitled to
judgment as a matter of law on the grounds that the jury
improperly considered Lee Loy’s statements that he was “trying to
do good” and “pursue justice,” and his suggestion that O’Phelan
altered evidence by writing a letter to Hilo Medical Center
regarding her record.

The Court does not find Lee Loy’s

statements or suggestions unfairly prejudicial to O’Phelan to the
effect that it would be a manifest miscarriage of justice if the
Court left the jury’s finding of no damages in place.
Finally, O’Phelan argues that she is entitled to at
least one dollar in damages because the jury ruled in her favor
on the first two parts of her invasion of privacy claim.
at 10.

Motion

O’Phelan also points out that based on the jury

instructions, “[t]he jurors were able to award ‘nominal damages’
in the amount of one dollar.”

Reply at 4.

The Court agrees that

based on the jury’s findings and Jury Instruction No. 14,
O’Phelan is entitled to an award of nominal damages of not more
than one dollar.
Jury Instruction No. 14, which both parties agreed to,
provides as follows:
The law which applies to this case authorizes an award
of nominal damages. If you find for the plaintiff but
you find that the plaintiff has failed to prove damages
as defined in these instructions, you must award
nominal damages. Nominal damages may not exceed one
dollar.

15

Doc. No. 459 at 15.

This instruction follows the commonly held

view that nominal damages are to be awarded where an invasion of
privacy is proven but no compensatory damages are established.8/
See, e.g., Rohrbaugh v. Wal-Mart Stores, Inc., 572 S.E.2d 881,
886-88 (W. Va. 2002); Doe v. High-Tech Institute, Inc., 972 P.2d
1060, 1066 (Colo. App. 1998); Sabrina W. v. Willman, 540 N.W.2d
364, 371 (Neb. Ct. App. 1995); Trevino v. Southwestern Bell Tel.
Co., 582 S.W.2d 582, 584-85 (Tex. App. 1979); see also Am. Jur.
2d Damages § 18 (2011); cf. Restatement (Second) of Torts § 652H
cmt. c.9/
According to the special verdict form, which both
parties agreed to, the jury found that O’Phelan proved by a
preponderance of the evidence: (1) “that Defendant intentionally
intruded upon Plaintiff’s privacy by improperly obtaining,
without Plaintiff’s consent or waiver or a court order as

8/

Jury Instruction No. 14 plainly undermines Lee Loy’s
contention that “[t]he issue of $1 damages for plaintiff has
meaning in the context of a civil rights claim but not in this
case.” Opp’n at 10.
9/

See also Thayer v. E. Maine Medical Ctr., 740 F. Supp. 2d
191, 194-95, 200-02 (D. Me. 2010) (noting that under Maine common
law, nominal damages are presumed upon a finding that an invasion
of privacy occurred, and amending the judgment to award one
dollar in nominal damages because the jury found that the
defendant intentionally violated the plaintiff’s human rights
under Maine law, but that the plaintiff failed to prove
compensatory damages); Trevino, 582 S.W.2d at 585 (“We hold that
although plaintiff was unable to prove any actual damages, he is
entitled, nonetheless, to nominal damages for the trespass and
invasion of privacy of his office establishment by the defendant
telephone company’s employee.”).
16

required, her medical records (including police reports
containing her medical records) relating to her injuries from the
alleged sexual assault” and (2) “that this intrusion was
substantial, and of a kind that would be highly offensive to an
ordinarily reasonable person.”

Doc. No. 466 at 1-2.

However,

the jury also found that (3) O’Phelan did not “prove[] by a
preponderance of the evidence that this intrusion caused
Plaintiff to sustain injury, damage, loss or harm.”

Id. at 2.

Based on the special verdict, the jury found for
O’Phelan, but also found that she failed to prove compensatory
damages as defined by Jury Instruction No. 13.

Thus, O’Phelan is

entitled to an award of nominal damages of not more than one
dollar, as mandated by Jury Instruction No. 14.

See Doc. No. 459

at 15 (“If you find for the plaintiff but you find that the
plaintiff has failed to prove damages as defined in these
instructions, you must award nominal damages.

Nominal damages

may not exceed on dollar.” (emphasis added)).
The Court recognizes that Jury Instruction No. 11
states that “For Plaintiff Ellen O’Phelan to establish her
invasion of privacy claim against Defendant Gerard Lee Loy, she
must prove” three elements, including that Lee Loy’s intentional
intrusion upon O’Phelan’s privacy “caused Plaintiff to sustain
injury, damage, loss or harm.”

Doc. No. 465; see Opp’n at 12,

17

14.10/

Nonetheless, Jury Instruction No. 14 demonstrates that

proof of damage was not required for the jury to “find for
plaintiff.”

If proof of damage were required for the jury to

“find for plaintiff,” it would be contradictory to instruct the
jury on what to do “[i]f you find for the plaintiff but you find
that the plaintiff has failed to prove damages”; Jury Instruction
No. 14 would be rendered nugatory.
Jury Instruction Nos. 11 and 14 must be read and
considered together.

Jury Instruction No. 11 addresses how

O’Phelan can establish her entitlement to compensatory damages.
Jury Instruction No. 14, on the other hand, is narrower, and
addresses what happens if O’Phelan proves an intentional,
substantial intrusion upon her privacy, but fails to establish
injury, damage, loss or harm resulting from that intrusion.

In

this situation, Jury Instruction No. 14 mandates that O’Phelan
still be awarded damages, albeit only nominal damages not to
exceed one dollar.

The jury instructions require that the

instructions be read and considered as a whole, with each
instruction being regarded in the light of all the others.

See

Doc. No. 459 at 2 (Jury Instruction No. 1) (“You are not to
single out one instruction alone as stating the law, but must
consider the instructions as a whole.”); id. at 4 (Jury

10/

When this Order cites Jury Instruction No. 11, it is
referring to that instruction as amended by the Court’s response
to Jury Question #2. See Doc. No. 465.
18

Instruction No. 3) (“[Y]ou are not to single out any certain
sentences or any individual point or instruction and ignore the
others, but you are to consider all the instructions as a whole
and are to regard each in the light of all the others.”).
Moreover, the Court finds that when read and considered as a
whole, the jury instructions are consistent and compatible; they
are not prejudicially insufficient, erroneous, inconsistent or
misleading.

See Myers v. South Seas Corp., 76 Hawai‘i 161, 164,

871 P.2d 1231, 1234 (1994).
In sum, because the jury found for O’Phelan on her
invasion of privacy claim, but also found that O’Phelan failed to
prove compensatory damages, O’Phelan is entitled to an award of
nominal damages of not more than one dollar, as mandated by Jury
Instruction No. 14.
plain error.

Failure to award such damages constitutes

Accordingly, the Court grants O’Phelan’s motion for

judgment as a matter of law and awards her one dollar ($1.00) in
nominal damages.
II.

O’Phelan’s Motion for a New Trial
O’Phelan alternatively moves for a new trial on

damages.

She incorporates the arguments from her motion for

judgment as a matter of law and adds a litany of complaints about
Lee Loy’s conduct during trial.

Motion at 11-13.

Although the

Court has granted O’Phelan’s motion for judgment as a matter of
law, Rule 50(c) requires the Court to conditionally rule on

19

O’Phelan’s motion for a new trial “by determining whether a new
trial should be granted if the judgment is later vacated or
reversed.”

Fed. R. Civ. P. 50(c)(1); see also Freund v. Nycomed

Amersham, 347 F.3d 752, 764 (9th Cir. 2003) (holding that even
where a party has failed to move for judgment as a matter of law
at the close of evidence, Rule 50(c) “requires a district court
granting [the party’s post-trial motion for] judgment as a matter
of law also to rule [conditionally] on whether to grant a new
trial in the event the judgment as a matter of law is reversed on
appeal”).

The Court conditionally denies O’Phelan’s motion for a

new trial.

O’Phelan fails to demonstrate that the jury’s finding

of no compensatory damages is against the clear weight of the
evidence.
To begin with, none of O’Phelan’s arguments for
judgment as a matter of law persuade the Court that a new trial
is warranted on the issue of compensatory damages.

The jury’s

damage finding does not leave the Court “‘with the firm
conviction that a mistake has been committed.’”

Landes Constr.

Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir.
1987) (citation omitted); Roy v. Volkswagen of America, Inc., 896
F.2d 1174, 1176 (9th Cir. 1990).

As noted supra Section I, the

only evidence that O’Phelan suffered emotional distress as a
result of the invasion of privacy, and not solely as a result of
the alleged sexual assault, was O’Phelan’s limited and self-

20

serving testimony on the matter.

And while O’Phelan was a

credible witness in some respects, the Court agrees with Lee Loy
that she was at times uncooperative and inconsistent.
appeared at times to have a selective memory.

She also

See Reply at 8-9.

Further, evidence suggested that Lee Loy could have lawfully
subpoenaed O’Phelan’s medical records in September 2008, shortly
after he became counsel for Marylou Askren.

And evidence

suggested that Lee Loy did obtain the records properly within a
year of the alleged sexual assault.

Under such circumstances,

O’Phelan fails to show that the jury’s finding of no compensatory
damages was against the clear weight of the evidence.11/
O’Phelan also fails to show that a new trial is
warranted on account of Lee Loy’s conduct during trial.

The

Court will address O’Phelan’s cursory arguments in summary
fashion.
First, although Lee Loy suggested in his closing
argument that the jury was to decide which attorney should be
“left standing,” as O’Phelan phrases it, the Court instructed the
jury that this was not the decision before them.
11; Caudle, 224 F.3d at 1023.

See Motion at

Second, the Court likewise

11/

The Court reiterates that it instructed the jury with
regard to Lee Loy’s: references to a “money case”; his attacks on
O’Phelan’s credibility with regard to her allegations of sexual
assault; his references to O’Phelan’s arrest; and his dual role
as an attorney and a party. See Caudle, 224 F.3d at 1023
(“‘[T]he law presumes that jurors carefully follow the
instructions given to them. . . .’” (citation omitted)).
21

instructed the jury (several times) to disregard any mention of
O’Phelan’s arrest.

Motion at 12.12/

Third, it is irrelevant

whether Lee Loy “routinely accessed” or “manipulated” the exhibit
binders.

The jury did not receive these exhibits until the close

of trial, after the Court had prepared a final binder of admitted
exhibits, which was approved by counsel for both sides.
Motion at 12.

See

Fourth, O’Phelan provides no persuasive support

for her claim that Lee Loy elicited false testimony and perjured
himself.

See id.

Fifth, Lee Loy never suggested that he was an

expert or a medical doctor, and it was not improper for him to
provide his lay opinion about what he believed to be the cause of
O’Phelan’s injuries.

See id.

This was relevant to Lee Loy’s

defense that if he had seen O’Phelan’s medical records in 2008,
he would have found her allegations incredible, and would have
told the state court judge as much on September 12, 2008.

Sixth,

it was not improper for Lee Loy to reference the conduct of Dan
O’Phelan, O’Phelan’s husband and lawyer, as such conduct was (for
the most part) relevant and not otherwise subject to exclusion.

12/

O’Phelan faults Lee Loy for “publish[ing] to the jury
redactions that could be read easily through the black markers.”
Motion at 12. Lee Loy allowed O’Phelan to review these redacted
exhibits prior to their publication, however, and O’Phelan did
not object to publication. And as the Court likewise pointed out
to O’Phelan during trial, O’Phelan was as sloppy as Lee Loy in
redacting her exhibits.
22

See id.13/

Finally, the Court does not agree that Lee Loy caused

so much distraction that the jury could not determine what was
relevant and what was not relevant.

See id. at 12-13.

Further,

the Court instructed both parties numerous times to stay on
topic.

Both parties strayed from the Court’s instructions.
In sum, the jury’s finding of no compensatory damages

is not against the clear weight of the evidence and the Court,
having considered the entire evidence, is not “‘left with the
firm conviction that a mistake has been committed.’”
F.2d at 1371-72 (citation omitted).

Landes, 833

Accordingly, the Court

conditionally denies O’Phelan’s motion for a new trial.
III.

Lee Loy’s Motion to Amend
Lee Loy moves to amend the judgment “to conform” to the

special verdict form and to Jury Instruction No. 11.

The Court

denies this motion for the reasons stated supra Section I.

The

jury found for O’Phelan, but also found that she failed to prove
compensatory damages.

O’Phelan is thereby entitled to an award

of nominal damages of not more than one dollar, as mandated by
Jury Instruction No. 14 (an instruction that Lee Loy’s Motion
ignores).

Judgment was properly entered in favor of O’Phelan,

and Lee Loy provides no persuasive basis for amending the

13/

To the extent that any of Lee Loy’s references to Dan
O’Phelan’s conduct were improper, such references by no means
warrant a new trial. Further, the Court notes that on several
occasions, Dan O’Phelan improperly indicated that he “would love
to testify,” but was not allowed to do so.
23

judgment.

Accordingly, the Court denies Lee Loy’s motion to

amend.
IV.

Lee Loy’s Motion for Judgment As a Matter of Law
Lee Loy also moves for judgment as a matter of law.

Because Lee Loy moved for judgment as a matter of law before this
case was submitted to the jury (unsuccessfully), the Court
reviews this renewed motion under a substantial evidence
standard.

See EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961

(9th Cir. 2009).

The Court finds that substantial evidence

supports the jury’s findings, and it denies Lee Loy’s motion.
First, Lee Loy reiterates the argument raised in his
motion to amend that he is entitled to judgment as a matter of
law based on Jury Instruction No. 11 and the jury’s finding that
O’Phelan failed to prove she was harmed or damaged as a result of
Lee Loy’s invasion of her privacy.

Motion at 2-4.

Again, this

argument fails for the reasons stated supra Sections I and III.
Second, Lee Loy argues that O’Phelan “failed to present
with reasonable certainty sufficient evidence that she suffered
any damages.”

Motion at 4-7.

After discussing his view of the

evidence, Lee Loy then offers reasons why any compensatory damage
award would likely have been small or non-existent.

Id. at 7-8.

In particular, Lee Loy contends that “[t]he underlying
unauthorized access was confined to a discrete period of time;
there is no evidence of any misuse or unauthorized disclosure of

24

the information in the medical records[;] [and] the medical
records were subject to discovery and eventual disclosure because
of the claims filed by both Dan and Ellen O’Phelan against Jeff
Meek and Ms. Askren.”

Id. at 7.

To the extent that Lee Loy argues that the jury
reasonably found that O’Phelan failed to prove she was harmed by
Lee Loy’s intrusion of her privacy, the Court agrees.
Sections I and II.

See supra

To the extent that Lee Loy argues that this

entitles him to judgment as a matter of law, however, the Court
disagrees.

Again, the jury found that Lee Loy intentionally

intruded upon O’Phelan’s privacy, and that this intrusion was
substantial, and of a kind that would be highly offensive to an
ordinarily reasonable person.

The jury’s subsequent finding of

no compensatory damages saves Lee Loy some money.

But that

finding does not mean that Lee Loy prevailed, or that judgment
should be entered in his favor.

See supra Sections I and III.14/

Third, Lee Loy challenges the jury’s finding that he
intruded upon O’Phelan’s privacy.

Motion at 8-9.

He argues that

“there is no evidence of Lee Loy obtaining medical records
information from any medical records, SANE or otherwise.”
8.

Id. at

By this Lee Loy apparently means that there is no evidence

14/

Although Lee Loy’s second argument is directed toward the
jury’s damage finding, it also implies that substantial evidence
does not support the jury’s finding that Lee Loy intentionally
intruded upon O’Phelan’s privacy. The Court addresses this
argument next.
25

that he improperly obtained such records between May 2008 and
March 2009, the time period at issue.
Instruction No. 11).
argument.

See Doc. No. 465 (Jury

The Court remains unpersuaded by Lee Loy’s

As the Court held at the close of evidence, there was

ample evidence from which the jury could reasonably find that Lee
Loy improperly obtained O’Phelan’s medical records during the
relevant time period.
In particular, based on an admitted court transcript,
Lee Loy told a state court judge on September 12, 2008, that “I
got,” “I saw,” “I see,” “I’m looking at,” “I do have now”; “[t]he
police report which now includes the medical –- some [of
O’Phelan’s] medical records.”

Trial Ex. 6 at 10-11, 19.

When

that judge later asked which medical records Lee Loy was talking
about, Lee Loy responded, “the medical records that Ben Bolos
showed me yesterday.”

Id. at 26.

Lee Loy also told the same

judge that he “kn[ew]” the records were “electronically signed by
Laura Kent,” and “kn[ew]” that they made reference to Meek
“gouging [O’Phelan’s] private parts, pain.”

Id. at 27.

Moreover, O’Phelan filed a complaint with the Hawai‘i Police
Department on December 19, 2008, alleging that “Detective Ben
Bolos disclosed my confidential medical records to attorney
Gerard Lee Loy without my authorization or consent.”
9.

Trial Ex.

O’Phelan testified at trial that she filed this complaint

without knowledge of Lee Loy’s statements at the 9/12/08 hearing,

26

and based only on her understanding, following a telephone
conversation with Detective Bolos, that Bolos had disclosed her
medical records to Lee Loy.

All of this is substantial

circumstantial evidence from which the jury could conclude that
Lee Loy improperly obtained, “physically or otherwise,”
O’Phelan’s medical records.

See Doc. No. 465 (Jury Instruction

No. 11).
In his defense, Lee Loy continues to assert that: (1)
his statements on 9/12/08 were somehow proper under the Federal
Rules and the Hawai‘i Rules of Professional Conduct; (2)
Detective Bolos lied to Lee Loy on 9/11/08, when Bolos told Lee
Loy that Bolos had O’Phelan’s records; (3) Laura Kent’s name
appears only on page 5 of Exhibit 217; and (4) Exhibit 217
includes information, such as “an addendum note written at the
request of Ellen O’Phelan,” that Lee Loy plainly did not know
about on 9/12/08.

Motion at 5-6.

Lee Loy also implies that

Detective Bolos “mention[ed] some words or phrases to” Lee Loy
that “happen[ed] to be later found out to have been included in
certain confidential records”; but that this did not constitute
“any improper disclosure of the medical records by the
detective.”

Id. at 9.

The Court finds that the jury could have reasonably
rejected these defenses.

The jury also could have reasonably

found Lee Loy incredible, and rejected his myriad other

27

explanations for his statements on 9/12/08.

Likewise, the jury

could have reasonably rejected Lee Loy’s argument that if he were
to have seen O’Phelan’s medical records, he would have told the
state court judge a host of other things.

The judge repeatedly

told Lee Loy that he did not want to hear about the underlying
facts.
In sum, substantial evidence supports the jury’s
findings that Lee Loy (1) “intentionally intruded upon
Plaintiff’s privacy by improperly obtaining, without Plaintiff’s
consent or waiver or a court order as required, her medical
records (including police reports containing her medical records)
relating to her injuries from the alleged sexual assault” and (2)
“that this intrusion was substantial, and of a kind that would be
highly offensive to an ordinarily reasonable person.”
466 at 1-2.

Doc. No.

Accordingly, the Court denies Lee Loy’s renewed

motion for judgment as a matter of law.
CONCLUSION
For the foregoing reasons, the Court (1) GRANTS
Plaintiff’s Motion for Judgment As a Matter of Law; (2)
CONDITIONALLY DENIES Plaintiff’s Alternative Motion for a New
Trial; (3) DENIES Defendant’s Motion to Correct Judgement; and
(4) DENIES Defendant’s Motion for Judgment As a Matter of Law.

28

The Clerk of the Court is directed to enter an amended
judgment awarding O’Phelan nominal damages in the amount of one
dollar ($1.00) in accordance with this Order.
IT IS SO ORDERED.
Dated:

Honolulu, Hawai‘i, May 23, 2011.

________________________________
Alan C. Kay
Sr. United States District Judge

O’Phelan v. Lee Loy, et al., Civ. No. 09-00236 ACK-KSC, Order (1) Granting
Plaintiff’s Motion for Judgment As a Matter of Law; (2) Conditionally Denying
Plaintiff’s Alternative Motion for a New Trial; (3) Denying Defendant’s Motion
to Correct Judgement; and (4) Denying Defendant’s Motion for Judgment As a
Matter of Law.

29