Skepnek et al v. Roper & Twardowsky, LLC et al

Filing 410

MEMORANDUM AND ORDER denying 372 Motion for New Trial; Motion for Judgment; Motion for Order. Signed by District Judge Daniel D. Crabtree on 09/08/2017. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM J. SKEPNEK and
STEVEN M. SMOOT,
Plaintiffs,
v.

Case No. 11-04102-DDC

ROPER & TWARDOWSKY, LLC,
Defendant.

MEMORANDUM AND ORDER
This action arose from a fee dispute between plaintiffs, attorneys William Skepnek and
Steven Smoot, and defendant, a law firm named Roper & Twardowsky, LLC. Following a jury
verdict in plaintiffs’ favor, defendant moved for judgment as a matter of law or, alternatively, for
a new trial or remittitur. Doc. 372. In its Memorandum supporting that motion, defendant
asserts separate arguments supporting each outcome. Doc. 373. This order rules on all those
arguments in the order they are presented, and for reasons explained below, denies defendant’s
motion.
I.

Motion for Judgment as a Matter of Law
Defendant asserts it is entitled to judgment as a matter of law because plaintiffs failed to

provide evidence about the number of hours they worked or their hourly rates; plaintiffs failed to
provide expert testimony about the quality of their services and failed to show that their efforts
contributed to the advancement of the case; and Mr. Smoot did not testify. Doc. 373 at 1. None
of these arguments supports judgment in defendant’s favor as a matter of law.

A.

Legal Standard

If a court does not grant a motion for judgment as a matter of law under Rule 50(a), the
movant may file a renewed motion for judgment as a matter of law. Fed. R. Civ. P. 50(b). The
Tenth Circuit has instructed district courts to grant renewed motions for judgment as a matter of
law “cautiously and sparingly.” Zuchel v. City & Cty. of Denver, 997 F.2d 730, 734 (10th Cir.
1993). “Movants are entitled to judgment as a matter of law only if all of the evidence, viewed
in the light most favorable to the nonmoving party, reveals no legally sufficient evidentiary basis
to find for the nonmoving party.” Weichert v. E-Fin. Call Ctr. Support, No. CV 13-2493-KHV,
2016 WL 1273922, at *2 (D. Kan. Mar. 30, 2016); see also Burrell v. Armijo, 603 F.3d 825, 832
(10th Cir. 2010). “Judgment as a matter of law is appropriate only if the evidence points but one
way and is susceptible to no reasonable inferences to support the nonmoving party.” Weichert,
2016 WL 1273922, at *2; see also Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th
Cir. 1999), overruled on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002); Riggs v. Scrivner, Inc., 927 F.2d 1146, 1149 (10th Cir.), cert. denied, 502 U.S. 867
(1991). “Such judgment is proper only when ‘the evidence so strongly supports an issue that
reasonable minds could not differ.’” Weichert, 2016 WL 1273922, at *2 (quoting Ryder v. City
of Topeka, 814 F.2d 1412, 1418 (10th Cir. 1987)). “In determining whether to grant judgment as
a matter of law, the Court may not weigh the evidence, consider the credibility of witnesses or
substitute its judgment for that of the jury.” Id.; see also Lucas v. Dover Corp., 857 F.2d 1397,
1400 (10th Cir. 1988). “Nevertheless, the Court must find more than a mere scintilla of evidence
favoring the nonmovant; the Court must find that ‘evidence was before the jury upon which it

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could properly find against the movant.’” Weichert, 2016 WL 1273922, at *2 (quoting Cooper
v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir. 1988)).
B.

Time and Hourly Rate

Defendant first contends that it is entitled to judgment as a matter of law because
plaintiffs failed to provide evidence showing the number of hours they worked or their hourly
rates. Doc. 373 at 9–11. Defendant contends, “New Jersey law makes clear that when an
attorney does not cede a substantially prepared case, did not originate the case, or had not
obtained a settlement offer that the lawyer’s standard hourly rate is the most that can be
recovered.” Doc. 373 at 9.
This argument, in large measure, reprises a theory that the court rejected long ago. See
Doc. 293 at 35 (Memorandum and Order of July 23, 2015 denying summary judgment against
plaintiffs’ quantum meruit claim and rejecting defendant’s argument that “the court must grant
summary judgment unless plaintiffs present evidence of the hours they spent representing each
Prudential client.”). As the court explained at summary judgment, “time [spent] is not the only
factor to be used in ascertaining a reasonable fee. . . .” Id. (citing Buckelew v. Grossbard, 461
A.2d 590, 592 (N.J. Super. Ct. Law Div. 1983), aff’d 469 A.2d 518 (N.J. Super. Ct. App. Div.
1983). The court again rejects defendant’s characterization of New Jersey law governing
quantum meruit principles, as applied to attorney fee disputes.
“The proper measure of compensation under quantum meruit is ‘as much as is
deserved.’” Bruno v. Gale, Wentworth & Dillon Realty, 852 A.2d 198, 201 (N.J. Super. Ct. App.
Div. 2004). Quantum meruit is an equitable remedy1 so a “mere listing of hours expended is
insufficient” because it may lead to an inequitable result. Id. “The crucial factor in determining
1

While equitable in character, New Jersey law provides that quantum meruit claims are triable to a
jury. See Doc. 405 at 2–3 (citing Goldberger, Seligsohn & Shinrod, P.A. v. Baumgarten, 875 A.2d 958,
964 (N.J. Super. Ct. App. Div. 2005)).

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the amount of recovery is the contribution which the lawyer made to advanc[e] the client’s
cause.” Id.; see also Glick v. Barclays DeZoete Wedd, Inc., 692 A.2d 1004, 1010 (N.J. Super.
Ct. App. Div. 1997); Dinter v. Sears, Roebuck & Co., 651 A.2d 1033, 1038 (N.J. Super. Ct. App.
Div. 1995), cert. denied, 658 A.2d 728 (N.J. 1995); La Mantia v. Durst, 561 A.2d 275, 277 (N.J.
Super. Ct. App. Div. 1989), cert. denied, 570 A.2d 950 (N.J. 1989); Anderson v.
Conley, 501 A.2d 1057, 1067 (N.J. Super. Ct. Law Div. 1985); Buckelew, 461 A.2d at 591–92.
Both defendant and plaintiffs cite La Mantia v. Durst as authority favoring them. Doc.
373 at 9; Doc. 405 at 3. In La Mantia, the New Jersey Superior Court observed “that when
dealing with an equitable determination such as quantum meruit, hard and fast rules are difficult
to apply, let alone construct.” 561 A.2d at 277. But, the New Jersey courts developed guidelines
that this court found useful to its analysis of the quantum meruit claim asserted here. Id. at 278.
These guidelines identify the following seven factors: the length of time invested by the
claimant compared to the entire time expended; the quality of representation; the result of each
attorney’s efforts; the reason the client changed attorneys; the viability of the claim at transfer;
the amount of recovery realized; and any pre-existing partnership agreements between the
attorneys who now compete for a percentage of the contingency fee. Id. Although not all the
factors apply to this dispute, they provide a clear message for the defendant’s argument. Under
New Jersey law, an hourly rate-based calculation alone is inadequate. In fact, the New Jersey
courts have found that applying a purely hourly calculation was reversible error. Id.
Fifteen years after the La Mantia court collected these seven factors, the New Jersey
Superior Court affirmed its confidence in them in Bruno v. Gale, Wentworth & Dillon Realty.
852 A.2d at 201 (“Trial courts should consider the length of time each of the firms spent on the
case relative to the total amount of time expended to conclude the client’s case. The quality of

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that representation is also relevant. . . . Viability of the claim at transfer also bears upon the value
of a former firm’s contribution . . . The amount of the recovery realized in the underlying lawsuit
also impacts upon the quantum meruit valuation.” (quoting La Mantia, 561 A.2d at 278 (other
citations omitted))).
Defendant directs the analysis to two more cases that purportedly require plaintiffs, as a
condition to quantum meruit recovery, to reconstruct time records and produce those records in
discovery, or testify about them to the jury. Doc. 373 at 11; Doc. 408 at 5–6 (first citing Starkey,
Kelly, Blaney & White v. Estate of Nicolaysen, 796 A.2d 238 (N.J. 2002); then citing Szcepanski
v. Newcomb Med. Ctr., Inc., 661 A.2d 1232 (N.J. 1995)). But, defendant’s cases are not on
point. Neither one deals with a quantum meruit fee dispute between attorneys. And while both
cases reach tangentially-related issues,2 La Mantia and Bruno consider the same setting
presented in this case—a quantum meruit fee dispute between counsel sharing a common client.
For this reason, the court concludes that the La Mantia factors control the analysis here and
considers whether the evidence will support the jury’s verdict under those factors.
First, the court considers the evidence about the length of time plaintiffs invested in the
case. Defendant makes much of plaintiffs’ lack of any time records, but defendant did not
produce any time records either. The absence of any time records from either plaintiffs or
defendant may have prevented the jury from comparing the time invested by either side to the
total expended. But, the evidentiary record isn’t as barren as defendant’s motion suggests. The
jury heard evidence estimating the time that Mr. Skepnek devoted to the case. During Mr.
Skepnek’s testimony, a blow-up calendar from 2002 to 2010 was marked to show dates Mr.

2

Starkey involved an issue of quantum meruit as applied to an unenforceable fee contract between the
attorney and his client’s estate. 796 A.2d at 239. Szcepanski involved a reasonable fee determination
when the substantive law required defendants to compensate plaintiff for her attorney’s fees and plaintiff
had a contingency fee agreement with her attorney. 661 A.2d 1234.

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Skepnek worked on the case. See Doc. 405-4 at 2. During direct examination, Mr. Skepnek
methodically recounted dates that he travelled to New Jersey to work on the case. Doc. 391 at
36–96. He also provided dates when he performed other work. Although this does not strictly
comply with the time records factor, the jury did not reach its verdict without any evidence of the
time contributed by plaintiffs.
The jury also heard evidence about the quality of plaintiffs’ representation in the battle to
keep the Prudential clients. Ex. 68; Doc. 392 at 214–17. The jury heard about a letter Mr.
Skepnek drafted and defendant’s employee distributed to the shared clients. In the letter, Mr.
Skepnek provided the clients with reasons why they should not dismiss their claims against one
of the defendants in their cases. In the client email attaching the letter, one of defendant’s
employees reported that Mr. Skepnek was available to speak with the clients—making him a
central point of contact for the matter. This evidence allowed the jury to understand the role Mr.
Skepnek had played in this critical phase of the cases. The jury also heard testimony about the
results of Mr. Skepnek’s efforts—it allowed plaintiffs and defendant to keep the 160 shared
clients. Ex. 109; Doc. 393 at 97–101.
The evidence included ample proof about the quality of Mr. Skepnek’s representation,
including his “masterpiece” and the result of those efforts (Ex. 290; Doc. 393 at 82–84). Mr.
Skepnek’s “masterpiece” was a 30-page analysis that he prepared and used to draft a motion for
summary judgment in the underlying cases. Finally, the jury heard evidence of the fee realized
from the joint representation—approximately $16.5 million. Doc. 393 at 193–96. This evidence
is not the only evidence the jury heard about plaintiffs’ contributions to the success of the shared
representation, but they provided the jury with a significant evidentiary basis to support their
verdict under the La Mantia factors.

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Although the jury did not hear an exact accounting of time and an hourly rate, it heard
evidence of the factors that New Jersey law considers relevant to quantum meruit. This evidence
was far more than “a mere scintilla” favoring plaintiffs.3 In fact, plaintiffs presented evidence to
the jury from which it properly could find against the movant. In sum, New Jersey law does not
require hourly records in a case like this one.
C.

Expert Testimony

Next, defendant argues that it deserves judgment as a matter of law because plaintiffs did
not provide expert testimony that would allow the jury to determine plaintiffs’ contribution to
advancing the case, the quality of plaintiffs’ services, or the results of plaintiffs’ efforts. Doc.
373 at 11–13. In doing so, defendant argues that plaintiffs’ contribution is beyond the ken of the
average juror, so expert testimony was required. Id. at 12. Defendant relies on Rocco v. NJ
Transit Rail Operations, Inc., 749 A.2d 868 (N.J. Super. App. Div. 2000), to support this
argument.
In Rocco, the New Jersey court held that “[e]xpert testimony is required when the subject
matter to be dealt with ‘is so esoteric that jurors of common judgment and experience cannot
form a valid judgment as to whether the conduct of the party was reasonable.’” 749 A.2d at 879;
see also Hopkins v. Fox & Lazo Realtors, 625 A.2d 1110, 1121 (N.J. 1993); Butler v. Acme
Markets, Inc., 445 A.2d 1141, 1147 (N.J. 1982). Defendant’s reliance on Rocco is misplaced.
The issue in Rocco involved a products liability claim for an automobile. The Rocco court
further explained that, “[w]here the case involves a complex instrumentality, expert testimony is
needed in order to help the fact-finder understand ‘the mechanical intricacies of the
instrumentality’ and help to exclude other possible causes of the accident.” 749 A.2d at 879.

3

See Weichert, 2016 WL 1273922, at *2.

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Rocco’s additional explanation shows that the New Jersey court believed that “esoteric” subject
matter was the mechanical intricacies of the instrumentality at issue.
In an earlier New Jersey Supreme Court case standing for the same general proposition,
Hopkins v. Fox & Lazo Realtors, that court found that jurors of ordinary experience could
comprehend a case about tripping over a stair that was difficult to see. 625 A.2d at 1121.
Evaluating the quantum meruit factors here more closely resembles the evaluation in Hopkins
than it does the complex mechanical instrumentality at issue in Rocco. Jurors of ordinary
experience could comprehend and evaluate the plaintiffs’ contributions to the recovery that
produced the fee dispute. Meetings, letters, emails, and legal analysis captured plaintiff’s
contributions. The evidence submitted to the jury, as described in part I.B. supra, provided the
jury with a reasonable, factual basis to evaluate the usefulness of plaintiffs’ contributions to the
efforts generating the fee. While a jury of lay persons probably could not evaluate the quality of
plaintiffs’ legal analysis, they could evaluate the level of effort that plaintiffs devoted to this joint
representation. No expert testimony is required to conclude—as the jury’s verdict reflects—that
30 pages of written analysis contributed something of value to a successful outcome. New
Jersey law does not require expert testimony to sustain a quantum meruit finding of the kind the
jury made here.
Defendant analogizes this case to a legal malpractice case and uses this analogy to argue
that, like legal malpractice cases, expert testimony was required here. Doc. 373 at 13; Doc. 408
at 14. But, this analogy is not quite right. New Jersey law requires expert testimony in legal
malpractice cases because “‘the duties a lawyer owes to his client are not known by the average
juror,’ [and so,] expert testimony must necessarily set forth the duty and explain the breach.”
Buchanan v. Leonard, 52 A.3d 1064, 1071 (N.J. Super. Ct. App. Div. 2012) (quoting Carbis

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Sales, Inc. v. Eisenberg, 935 A.2d 1236, 1244 (N.J. Super. Ct. App. Div. 2007); see also Kranz v.
Tiger, 914 A.2d 854, 861 (N.J. Super. Ct. App. Div. 2007). This rule makes sense. Courts
cannot expect a typical juror to know when an attorney owes a duty or whether breaching any
such duty caused the plaintiff to sustain damages. But the analysis here did not turn on such
esoteric questions. In large measure, the jury’s verdict required them to assess the quantity of
each lawyer’s investment in the case, the result of the case, the reason that defendant elected to
involve plaintiffs in the case, and the value of the recovery realized. All are the kind of factors a
typical juror can comprehend. And while one factor considered “the quality of the
representation,”4 this factor does not necessarily require a lawyer’s evaluation of the work
performed. Instead, the outcome of the underlying cases provided the jury with a reasonable
basis to evaluate this quality factor. In sum, defendant has not established that expert testimony
was required. Defendant is not entitled to judgment as a matter of law on this basis.
D.

Lack of Testimony from Mr. Smoot

Finally, defendant argues that it is entitled to judgment as a matter of law because Mr.
Smoot did not testify. Doc. 373 at 14. Mr. Smoot was not required to testify. Instead, Mr.
Skepnek’s testimony provided the jury with sufficient evidence to evaluate the value of Mr.
Smoot’s contributions. Doc. 391 at 36–41, 45, 52, 54–58, 63, 73, 94–96; Doc. 392 at 13–14, 16,
21, 101–03, 140, 159, 173. This evidence enabled the jury to assess the value of Mr. Smoot’s
work.5
Defendant has failed to demonstrate it is entitled to judgment as a matter of law.

4

La Mantia, 561 A.2d at 278.

5

Mr. Smoot appeared at trial and defendant easily could have secured his appearance as a trial witness.
Nothing prevented defendant from handing Mr. Smoot a trial subpoena while he was standing in the
courtroom.

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II.

Motion for a New Trial
Defendant moves for a new trial because, it claims: the jury’s finding was against the

weight of the evidence; the court erred by failing to instruct the jury that any fee awarded to
plaintiffs must be reasonable, and the jury award was contrary to the Rules of Professional
Conduct; Mr. Skepnek allegedly committed perjury; and the court erred by admitting Exhibit 12.
Doc. 373 at 1–2. None of these reasons entitles defendant to a new trial.
A.

Legal Standard

After a jury trial, the court may grant a new trial on all or some of the issues “for any
reason for which a new trial has heretofore been granted in an action at law in federal court.”
Fed. R. Civ. P. 59(a)(1)(A). “Motions for new trials are committed to sound discretion of the
trial court.” Rivera v. Rivera, 262 F. Supp. 2d 1217, 1223 (D. Kan. 2003); see also McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); Hinds v. Gen. Motors Corp., 988
F.2d 1039, 1046 (10th Cir. 1993). “A party seeking to set aside a jury verdict must demonstrate
trial errors which constitute prejudicial error, or that the verdict is not based on substantial
evidence.” White v. Conoco, Inc., 710 F.2d 1442, 1443 (10th Cir. 1983); Rivera, 262 F. Supp. 2d
at 1223. On a new trial motion, the court views the evidence in the light most favorable to the
prevailing party. Escue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir. 2006).
Defendant makes four arguments to support its request for a new trial. The court
addresses each of them in subsections B through E.
B.

Verdict Against the Weight of the Evidence

First, defendant argues that the verdict is against the weight of the evidence. Doc. 373 at
16–17. “The court must invoke its discretionary power only in an exceptional case where the
verdict was clearly, decidedly, or overwhelmingly against the weight of the evidence.” Rivera,

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262 F. Supp. 2d at 1231. After reviewing the record as a whole and, especially, the facts
discussed in Part I.B. supra, the court concludes that the verdict is not against the weight of the
evidence. As plaintiffs point out, Mr. Skepnek testified extensively over three days. During that
time, he provided evidence of the days he worked and travelled to New Jersey, the critical legal
analysis he prepared, and other efforts he dedicated to this joint representation. The court finds
that the jury’s verdict was not clearly, decidedly, or overwhelmingly against the weight of the
evidence.
C.

Reasonable Fee Jury Instruction

Defendant contends it is entitled to a new trial because the jury was not instructed that
legal fees must be reasonable. Doc. 373 at 17–18. The court addressed this argument during the
jury instructions conference. And, it decided that the reasonable fee requirement was a legal
requirement and thus not one for the jury to assess. Doc. 401 at 266–67. The court holds the
same view now.
Also, defendant argues that the award is contrary to the Rules of Professional Conduct.
This argument is based on two central issues: (1) an unreasonable fee based upon awards to
clients plaintiffs never represented, never appeared on behalf of, and did nothing to advance their
cause; and (2) fee-sharing with lawyers not in the same firm. The New Jersey courts have
permitted attorneys to recover on quantum meruit actions against other attorneys. See La
Mantia, 561 A.2d at 276; Bruno, 852 A.2d at 199. And defendant has cited no authority that a
New Jersey court found such claims to contradict the Rules of Professional Conduct.
Defendant’s unsupported argument does not persuade the court to supplant the jury’s verdict.

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D.

Perjury Allegation

Defendant next argues it is entitled to a new trial because it alleges that Mr. Skepnek
committed perjury. Doc. 373 at 19. Ordinarily, a witness’s credibility and the assessment of the
witness’s testimony are proper issues for the jury. See Motive Parts Warehouse v. Facet Enters.,
774 F.2d 380, 391 (10th Cir. 1985). For the court to grant a new trial on the grounds that “a
witness willfully testified falsely to a material fact, the perjury must be clearly established.” Id.;
see also Hunter v. Thomas, 173 F.2d 810, 812 (10th Cir. 1949). “Where the court is left to
speculate as to whether erroneous testimony was inadvertent or intentional, perjury has not been
clearly established.” Motive Parts, 774 F.2d at 391.
Here, defendant had ample opportunity to cross-examine Mr. Skepnek during the trial
and attack his credibility on the very point where—defendant claims—he testified falsely. Now,
defendant claims Mr. Skepnek testified falsely that he and Mr. Smoot “had never been offered
any money by Defendant for their services.” Doc. 373 at 19. Attached to its motion, defendant
provides evidence of settlement offers to support its argument. See Docs. 409-2–4. Finally,
defendant claims Mr. Skepnek’s rebuttal testimony was extremely prejudicial because it was the
last testimony the jury heard. Id. However, following this direct examination, defendant’s
counsel had another opportunity to cross-examine Mr. Skepnek. Doc. 395 at 18.
Defendant now asks the court to determine whether Mr. Skepnek willfully testified
falsely or if he was not counting these as an offer in the sense that the question used the term.
This is the exact type of speculation that reveals defendant has not established perjury clearly.
There are many flaws in defendant’s argument. For one, a witness’s inconsistent answer does
not necessarily constitute perjury. Perjury occurs when a witness willfully and falsely swears to
a material fact upon oath before a court. See Motive Parts, 774 F.2d at 391. Defendant has not

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shown that Mr. Skepnek willfully and falsely testified. For another, defendant’s conduct during
the trial was not spotless.6 Regardless, the court cannot say, in this context, that Mr. Skepnek
intentionally perjured himself. Defendant has not met its burden to establish perjury clearly.7
The court declines to grant a new trial on this basis.
E.

Exhibit 12 Admission

Defendant’s final argument for a new trial is Exhibit 12. Doc. 373 at 19. Defendant says
the court committed prejudicial error when it admitted this exhibit into evidence. Defendant
calls this exhibit a contract, presumably, because the parties discussed it early in the case as part
of plaintiffs’ breach of contract claims. But this exhibit was not admitted as a contract. The
court admitted this exhibit as relevant evidence under the New Jersey elements of quantum
meruit. The exhibit was directly relevant to whether defendant had accepted plaintiffs’ services
and whether plaintiffs reasonably expected compensation from defendant for the services they
performed. The exhibit’s probative value was not outweighed by unfair prejudice. See Fed. R.
Evid. 403.
Next, defendant claims the limiting jury instruction (Doc. 358 at 10) about the exhibit
was insufficient. Doc. 373 at 19. The court disagrees. The jury heard no evidence or argument
about the breach of contract claims. Nor, did it hear evidence or argument about the
unenforceability of the alleged fee-sharing contract. See Doc. 403 at 34. The court concludes
that admitting Exhibit 12 was not prejudicial error.

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During closing argument, defendant’s counsel explicitly argued that attorneys associated with
defendant had worked a specific number of hours on the shared representation. Doc. 369 at 3–13.
Plaintiffs objected that the record included no such evidence. After reviewing the record, the court
concluded that plaintiffs’ objection was well-founded and submitted a curative instruction. Doc. 359.
7

See Motive Parts, 774 F.2d at 391.

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Defendant has failed to demonstrate that any trial errors constituted prejudicial error, or
that the verdict is not based on substantial evidence. Defendant is not entitled to a new trial
under the prevailing legal standard.
III.

Remittitur
Defendant’s final argument is that it deserves remittitur. “[I]n an ordinary remittitur case,

the plaintiff must be offered a choice between a new trial and accepting a remittitur to avoid a
serious problem under the Seventh Amendment, which reserves to the jury the determination of
damages.” O’Gilvie v. Int’l Playtex, Inc., 821 F.2d 1438, 1447–48 (10th Cir. 1987).
Determining damages is traditionally a jury function because the jury has heard the evidence first
hand and observed the witnesses’ demeanor. Whiteley v. OKC Corp., 719 F.2d 1051, 1058 (10th
Cir. 1983). The Tenth Circuit has warned that “the jury’s determination of the damages is
considered inviolate” unless “an award [is] so excessive as to shock the judicial conscience and
to raise an irresistible inference that passion, prejudice, corruption or other improper cause
invaded the trial.” E.g., Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d
1152, 1168 (10th Cir. 1981). So, in a typical situation, the trial judge must review the verdict
and decide whether substantial evidence supports the award. If the evidence is insufficient to
support the award, or if the trial judge finds the verdict’s amount is “a product of jury passion or
prejudice, the court then may determine a reasonable amount as plaintiff’s damages and allow
plaintiff to remit the excess over such amount.” O’Gilvie v. Int’l Playtex, Inc., 821 F.2d at 1448.
“[Jury] bias, prejudice or passion can be inferred from excessiveness.” Malandris, 703
F.2d at 1168. “However, a verdict will not be set aside unless it is so plainly excessive as to
suggest that it was the product of such passion or prejudice on the part of the jury.” Id.
Consistent with these principles, the trial judge should not order a new trial or remittitur “when

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the amount of damages turns on weighing credibility of the witnesses, or resolving conflicting
evidence.” Boardwalk Apartments, L.C. v. State Auto Prop. And Cas. Ins. Co., 85 F. Supp. 3d
1275, 1283–84 (D. Kan. 2015).
Here, the jury heard testimony about the two-phase settlement of the underlying cases
and the attorneys’ fees associated with those settlements—totaling about $16.5 million. Doc.
393 at 174–86. The jury also saw the lien claims against those fees which provided more
information necessary to help it determine the fees defendant may have received. Id. at 181–82.
Finally, the jury heard evidence from both plaintiffs and defendant debating the value of
plaintiffs’ contribution to the total fee recovered. See id. at 186; Doc. 400 at 59–65. Plaintiff
presented sufficient evidence to the jury for it to make a damages finding. In the context of that
evidence, an award of $2.25 million may not represent the award that the court would have made
if the parties agreed to try this case to the court. But, the parties did not stipulate to a bench trial,
and the jury’s verdict is not “plainly excessive” and it does not “shock the [court’s] conscience.”
Malandris, 703 F.2d at 1168. The court thus rejects defendant’s request for remittitur.
IV.

Conclusion
For reasons discussed above, the court denies defendant’s Motion for Judgment as a

Matter of Law, or alternatively for a New Trial or Remittitur (Doc. 372).
IT IS THEREFORE ORDERED BY THE COURT THAT defendant Roper &
Twardowsky, LLC’s Motion for Judgment as a Matter of Law, or alternatively for a New Trial or
Remittitur (Doc. 372) is denied.
IT IS SO ORDERED.

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Dated this 8th day of September, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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