Herx v. Diocese of Fort Wayne-South Bend Inc et al
Filing
247
OPINION AND ORDER: DEFERRING ruling on 218 MOTION for Judgment as a Matter of Law by Defendant Diocese of Fort Wayne-South Bend Inc, as outlined in Order. Signed by Judge Robert L Miller, Jr on 7/7/2015. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
EMILY HERX
Plaintiff
vs.
DIOCESE OF FORT WAYNESOUTH BEND, INC.,
Defendant
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CAUSE NO. 1:12-CV-122 RLM
OPINION and ORDER
After a trial in which liability was fiercely contested, but damages were
barely discussed, post-trial motions have circled around onto damages issues.
Unfortunately, elements of damages have wandered unpredictably in and out of
the court’s efforts to reconcile the jury’s damages award with the law and the
evidence produced at trial. It seems helpful to back up to square one so the court
might get it right this time.
A
On December 19, 2014, the jury found for plaintiff Emily Herx and awarded
the following damages:
$1,750,000 in physical, mental, and/or emotional pain and suffering
$125,000 in medical care
$75,000 in lost wages
$1 in punitive damages
for a total of $1,950,001.
B
Defendant Diocese of Fort-Wayne-South Bend, Inc. moved to reduce the
damages award pursuant to the statutory $300,000 cap in 42 U.S.C. §
1981a(b)(3)(D). The Diocese argued that the medical care award should be counted
against the cap. In light of the parties’ earlier agreement and the jury instructions,
the court disagreed and left the $125,000 medical costs as an element of damages
not subject to the cap. On January 12, the court granted the Diocese’s motion in
part, and directed the clerk to enter judgment in the sum of $543,803, consisting
of
$299,999 in compensatory damages (pain and suffering)
$1 in punitive damage(s)
$125,000 in medical care
$118,803 in lost wages and benefits, consisting of $88,450 in lost wages,
$7,500 in lost tuition benefits for Mrs. Herx’s son, and $22,853 for posttermination out-of-pocket health care costs.
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C
The Diocese then moved for judgment as a matter of law. Setting aside the
arguments concerning liability, the Diocese argued that the award for lost wages
and benefits had to be reduced because (i) the back pay award didn’t take into
account the income Mrs. Herx received from her post-termination employment;
(ii) no evidence supported the award of $22,853 for post-termination out-of-pocket
health care costs; and (iii) nothing should be awarded for lost tuition benefits. The
court disagreed with the Diocese as to the second and third points, but agreed
with the Diocese in part with respect to the back pay argument. On March 9, the
court reduced the lost wages component of the award to $22,916.66.
The court ordered a remittitur to an award of $353,269.66, consisting of:
$299,999 in compensatory damages (pain and suffering)
$1 in punitive damage(s)
$53,269.66 in lost wages and benefits, consisting of $22,916.66 in lost
wages, $7,500 in lost tuition benefits for Mrs. Herx’s son, and
$22,853 for post-termination out-of-pocket health care costs.
A reader more careful than the court might notice that the $125,000 medical care
component had fallen out of the equation. In its motion, the Diocese had argued
that the evidence didn’t support that award. Inexplicably, the ruling on the motion
omitted any reference to that component.
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The court ordered a new trial unless Mrs. Herx accepted a remittitur
reducing the amount of the judgment to $353,269.66.
D
Mrs. Herx responded that she would accept the remittitur with two
modifications, one stated and the other unstated. First, she noted that the court’s
lost wages calculation included $22,916.66 for the months of her part-time
employment, but omitted the $22,516.67 that reflects her lost wages for the
months in which she was unemployed. So the “lost wages and benefits”
component should be $75,786.33, consisting of
$22,916.66 in lost wages while Mrs. Herx was employed part time
$22,516.67 in lost wages while Mrs. Herx was unemployed
$7,500 in lost tuition benefits for Mrs. Herx’s son
$22,853 in post-termination out-of-pocket health care costs.
The Diocese agrees with Mrs. Herx’s argument on that calculation. One who read
only the last order and these briefs would think Mrs. Herx was agreeing to a
remittitur with judgment in the sum of $375,786.33, consisting of
$299,999 in compensatory damages (pain and suffering)
$1 in punitive damage(s)
$75,786.33 in lost wages and benefits, as just recalculated.
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But Mrs. Herx, tacitly confident the court didn’t mean to strip out the $125,000
medical care component of the jury’s damages award, informs the court that she
will accept a remittitur to $500,786.33 — a figure that re-incorporates the medical
care component.
The Diocese, whose objection to the medical care component was either
sustained silently or ignored altogether in the March 9 order, rightly thinks more
judicial reasoning is needed.
E
And so the court turns to the parties’ arguments concerning the $125,000
medical care component of the jury’s award. The court earlier rejected the
Diocese’s argument that the medical care award has to yield to the $300,000 cap
(since the pain and suffering damages alone exceeded the cap). The Diocese’s later
filings have preserved that argument for appellate review, but have given the court
no persuasive reason to change its earlier ruling.
The earlier ruling on the cap didn’t address whether evidence presented at
trial supported the award. Mrs. Herx says the evidence supports the award, but
doesn’t point the court to that evidence. Left without such guidance, the court
agrees with the Diocese that the evidence doesn’t support an award of $125,000.
After reviewing the transcript and the court’s notes, the following evidence
addresses medical expenses.
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Brian Herx, Mrs. Herx’s husband, testified that when she was terminated,
his insurance through Blue Cross/Blue Shield Illinois became the family’s
primary insurance. Before the termination, his insurance was secondary and
covered everything Mrs. Herx’s policy didn’t cover. Mr. Herx reviewed the family’s
out-of-pocket expenses — what his insurance didn’t cover, though the spouses’
two policies would have covered — and identified the following:
$550 in prescriptions from Dr. Panczer
$200 in prescriptions from Drs. Park, Gebfert, and Butler
$3,550 for root canals and crowns
$22,853 in other expenses excluding what she paid Dr. Panzcer for oral
surgery
Dr. Panczer testified that he charged Mrs. Herx $7,835 for therapy sessions from
March 2012 through trial.
Combining those figures produces a total sum spent on medical care up to
trial of $34,988. The trial evidence supports a medical component of damages
outside the cap of that amount, but no more.
F
Mrs. Herx indicated that she would accept a remittitur for a judgment of
$500,786.33. Today’s ruling, which more completely addresses the issues relating
to the Diocese’s excessive damages arguments, indicates that the evidence
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presented at trial can support a verdict no greater than $410,574.33, calculated
as follows:
$299,999 in compensatory damages (pain and suffering)
$1 in punitive damage(s)
$34,988 in medical care
$75,786.33 in lost wages and benefits, consisting of $22,916.66 in lost
wages while Mrs. Herx was employed part time, $22,516.67 in lost
wages while Mrs. Herx was unemployed, $7,500 in lost tuition
benefits for Mrs. Herx’s son, and $22,853 in post-termination out-ofpocket health care costs.
Accordingly, the court DEFERS ruling on the defendant’s alternative motion
for remittitur or new trial [docket # 218] until the plaintiff notifies the court
whether she will accept a remittitur to a judgment of $410,773.33 in
compensatory damages and $1 in punitive damages. The court will grant a new
trial, limited to the issue of damages, should the plaintiff decline the remittitur.
Because a new trial remains a possibility, ruling on the objections to the bills of
costs and the attorney fee petitions would be premature.
ENTERED:
July 7, 2015
/s/ Robert L. Miller, Jr.
Robert L. Miller, Jr., Judge
United States District Court
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