Faulk v. Duplantis et al

Filing 118

ORDER granting 107 Motion for New Trial; denying 110 Motion for Attorney Fees. Signed by Judge Jay C. Zainey on 12/9/14. (Reference: 12-1714)(jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KYLE FAULK

CIVIL ACTION

VERSUS

NO: 12-1714

TODD M. DUPLANTIS`

SECTION: "A" (3)

ORDER AND REASONS
The following motions are before the Court: Motion for New Trial, or in the
Alternative, Remittitur (Rec. Docs. 107) filed by Defendant, Todd Duplantis; Motion
for Attorney's Fees (Rec. Doc. 110) filed by Plaintiff, Kyle Faulk. The motions are
opposed. The motions, scheduled for submission on September 10 & 24, 2014, are before the
Court on the briefs without oral argument.
On July 16, 2014, the jury returned a verdict in favor of Faulk on his First Amendment
retaliation claim against Todd M. Duplantis. (Verdict Form, Rec. Doc. 100-1). The jury
concluded that Duplantis transferred Faulk to uniformed car patrol in retaliation for engaging
in protected speech, and that the transfer constituted an adverse employment action. The jury
then awarded Faulk $75,000 in compensatory damages and $275,000 in punitive damages.
(Id. at 2, 3). Duplantis is liable for these amounts in his personal capacity.
Duplantis now moves for a new trial on the compensatory and punitive damage
awards.1

Although the motion primarily challenges the propriety of the damage awards, Duplantis
at times also alludes to error with the jury's other factual findings, such as whether the transfer
was an adverse employment action and whether the transfer was actually retaliatory in nature. To
the extent that Duplantis challenges these liability determinations, the Court is not persuaded
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Following a jury trial, Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure allows
the court discretion to grant a new trial when the jury's damage award was so excessive and
against the great weight of the evidence as to indicate bias or prejudice by the jury.
Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 177-78 (5th Cir. 1992); Harang v. Schwartz,
—F.3d—, No. 13-0058, 2014 WL 4084939 (E.D. La. Aug. 15, 2014). The court must first
determine whether a new trial or remittitur is the appropriate remedy. When a jury verdict
results from passion or prejudice, the appropriate remedy is a new trial, not remittitur. Id.
(citing Wells v. Dallas Indep. Sch. Dist., 793 F.2d 679, 683 (5th Cir. 1986)). Damage awards
that are merely excessive or so large as to appear contrary to right reason, however, are subject
to remittitur, not a new trial. Id. This circuit follows the "maximum recovery rule" for
remittitur such that the verdict must be reduced to the maximum amount that the jury could
properly have awarded. Id. (quoting Hansen v. Johns-Manville Prods. Corp., 734 F.2d 1036
(5th Cir. 1984)).
But the jury's award of damages will not be set aside unless it is "entirely
disproportionate to the injury sustained." Rhines v. Salinas Constr. Technol., Ltd., 574 Fed.
Appx. 362, 368 (5th Cir. 2014) (unpublished) (quoting Flanagan v. Aaron E. Henry Cmty.
Health Servs. Ctr., 876 F.2d 1231, 1236 (5th Cir. 1989)). The jury's verdict is afforded great
deference such that the court must refrain from substituting its opinion in place of the jury's.
Brown v. Miss. Dep't of Health, 256 Fed. Appx. 710, 711 (5th Cir. 2007) (unpublished) (quoting
Bryant v. Compass Grp. USA, Inc., 413 F.3d 471, 475 (5th Cir. 2005)). The decision to grant or

that the jury's conclusions were contrary to the great weight of the evidence. The evidence
presented at trial was sufficient to establish that the transfer was functionally equivalent to a
demotion, and that Duplantis effected the transfer for retaliatory reasons. The jury was free to
discount Duplantis's testimony to the contrary.

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deny a motion for new trial is within the sound discretion of the trial court. Harang, 2014 WL
4084939, at *13 (citing Pryor v. Trane Co., 138 F.3d 1024, 1016 (5th Cir. 1998)).
Compensatory Damages
Duplantis contends that the $75,000 compensatory damage award was against the
great weight of the evidence. Duplantis urges the Court to either order a new trial or to remit
the award to $20,000.
At the outset, the Court notes that the entirety of the $75,000 compensatory damage
award in this case was for non-pecuniary damages.2 An award of non-pecuniary damages
requires evidence of a specific, discernable injury to the plaintiff's emotional state, with
evidence to support the nature and extent of the harm. Brown, 256 Fed. Appx. at 711 (quoting
Brady v. Fort Bend Cnty., 145 F.3d 691, 718 (5th Cir. 1998)). Evidence to corroborate the
plaintiff's testimony is not an absolute requirement so long as the plaintiff's testimony is
"particularized and extensive enough." Hitt v. Connell, 301 F.3d 240, 250-51 (5th Cir. 2002)
(quoting Brady, 145 F.3d at 720). "[H]urt feelings, anger and frustration are part of life," and
are not types of emotional harm that can support an award of damages. Id. (quoting Patterson
v. P.H.P. Health. Corp., 90 F.3d 927, 940 (5th Cir. 1996)).
Faulk testified that prior to the transfer, he worked days from 8:00 a.m. to 4:00 p.m.,
and had weekends and holidays off. After the transfer, he worked 12 hours shifts, which
included work on weekends and holidays. According to Faulk, the transfer to shift work
adversely affected his custody schedule with his two daughters. The girls could no longer

Faulk did not suffer any financial injury whatsoever as a result of the transfer. Faulk
stresses that civil service regulations protected his pay and benefits. But that is of no moment
because Faulk can only recover the damages that he actually sustained, regardless of the reasons
that prevented the damage from being worse.
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spend nights with him and he could no longer spend time with the girls individually, which
Faulk found preferable in light of the girls' differing interests. Faulk explained that his new
work schedule so disrupted the joint custody arrangement that he had with his former wife
that they went to court over the matter.3 Faulk noted that he had to endure the strained
custody situation for about two years. Faulk had been offered a foot patrol position that would
have cured the problem with his custody schedule but he turned it down because he thought
that the assignment was beneath his current position. Faulk testified that it was difficult to
engage in other relationships because with his new schedule—he was either always working or
with his daughters.
Faulk also testified that he sought medical treatment on one occasion because he
thought that he was having a heart attack.4 Faulk also resorted to taking sleeping pills because
of the erratic schedule accompanying the shift work.
The case of Hitt v. Connell, supra, is instructive. Like this case, Hitt was a § 1983 First
Amendment retaliation case. Hitt had been fired from his position as a deputy constable
because of his protected labor union activities. The jury returned a $300,000 compensatory
damage award, $224,000 of which constituted non-pecuniary damages for mental anguish,
loss of job satisfaction and prestige, and embarrassment. Hitt, 301 F. 3d at 250. Hitt offered

Faulk did not offer evidence of any attorney's fees or other costs incurred in conjunction
with that legal proceeding.
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Faulk attempted to testify that the treating physician believed that Faulk's symptoms
were related to stress from his predicament at work but the Court sustained Duplantis's objection
to that blatant hearsay. Faulk attempted to admit medical records from the incident that he
recounted but the Court granted Duplantis's motion in limine to exclude them. (Rec. Doc. 88).
The Court has re-reviewed the excluded records (Rec. Doc. 83 Exhibit P-9), and notes that they
contain no medical opinion suggesting that Faulk's complaints were causally-related to job stress.
The records do indicate other pre-existing health issues.
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uncorroborated testimony about how emotionally trying the termination had been; how
embarrassed he was about town by the whole incident; and how he was depressed over having
lost his job. Id. at 251. The Fifth Circuit remitted the entire non-pecuniary damage award after
concluding that Hitt's uncorroborated testimony was too vague and non-specific. Id. The court
explained that the evidence necessary to support a non-pecuniary damage award must
establish a specific and discernable injury to the plaintiff's mental state. Id. at 250. Hitt's
uncorroborated testimony of mental distress with no evidence of physical manifestations of
stress was insufficient to meet this standard. Id.
Forsyth v. City of Dallas, 91 F.3d 769 (5th Cir. 1996), is another instructive decision
that represents the other end of the damages spectrum. Forsyth was also a First Amendment
retaliation case involving police officers. The plaintiffs (Kirks and Forsyth) were two Dallas
police officers who were transferred to night uniformed patrol after they spoke out about
potentially unlawful conduct by their superiors in the department. The jury awarded mental
anguish damages of $50,000 and $75,000 to Kirks and Forsyth, respectively.5 Id. at 773.
These awards were based on the plaintiffs' own testimony. Kirks testified that he had suffered
depression, sleeplessness, and marital problems. Id. at 774. Forsyth testified that she suffered
depression, weight loss, intestinal troubles, and marital problems; that she had been sent
home from work because of her depression, and that she had to consult a psychologist. Id. The
Fifth Circuit upheld the awards on appeal, recognizing that judgments regarding noneconomic damages are "notoriously variable," and that the court had no basis to disturb the
jury's verdict. Id.

These awards are for past mental anguish only. The Forsyth jury also awarded the
plaintiffs future mental anguish damages, 91 F.3d at 773, but Faulk presented no evidence to
support the inference that he should be awarded future mental anguish damages.
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Faulk argues that his trial testimony establishes that he suffered essentially the same
emotional harm as Kirks, who received a $50,000 award almost 20 years ago. (Rec. Doc. 108,
Opposition at 7). But the nature of Faulk's evidence was also not vastly different from what
was offered in Hitt, a more recent case, where the Fifth Circuit remitted the entire nonpecuniary damage award. That decision is not unique.6
The Court is persuaded that $30,000 is the maximum recovery that the jury could have
reasonably awarded Faulk. Faulk's testimony was completely uncorroborated, and while that
is not in and of itself problematic, Faulk's complaints were essentially those of inconvenience,
albeit accompanied by stress. Faulk rejected the opportunity to mitigate his damages by taking
another position that would have cured the custody situation. The award of $75,000 to Faulk
for past mental anguish is excessive as a matter of law in light of the evidence presented at
trial. Duplantis does not suggest that the jury's verdict was the result of passion or prejudice,
and the Court likewise sees no evidence of such a problem. The appropriate remedy for the
excessive award is therefore remittitur. The Court will remit the compensatory damage award
to $30,000, which comprises over a $1000 a month in compensation for the two years of shift
work that Faulk endured. If Faulk refuses to remit then the Court will order a new trial on
damages.
Punitive Damages
Duplantis contends that the $275,000 exemplary damage award was both

See, e.g., Brown, 256 Fed. Appx at 711. In Brown, the plaintiff testified that his
employer's discrimination caused him mental anguish, emotional suffering, and stress, that
resulted in marital difficulties, and aggravation to his already-existing kidney stones. The Fifth
Circuit remitted the entire non-pecuniary damage award ($25,000) after concluding that the
plaintiff's evidence was insufficient to support any award at all. Id. Although unpublished cases
do not constitute precedent in this circuit, see Fifth Circuit Rule 47.5.4, the results of those cases
are very real and instructive to other litigants.
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constitutionally invalid and against the great weight of the evidence. Duplantis urges the Court
to remit the award completely or to $5,000 at the most.
The jury concluded that Duplantis acted with malice or wilfulness or with callous and
reckless indifference to the safety or rights of others when he retaliated against Faulk. (Verdict
Form, Rec. Doc. 100-1 at 3). In 2012, a police chief in Duplantis's position would have known
that he could not take retaliatory action against an officer for the exercise of his First
Amendment rights. Duplantis need not have acted maliciously, but only wilfully and with
indifference to the rights of others. (Jury Instructions at 5). The jury was instructed that the
purpose of punitive damages is to discourage similar conduct in the future and to punish the
defendant for his past conduct. (Id.). The jury's conclusion that punitive damages were
appropriate under the circumstances was not against the great weight of the evidence. The
Court therefore cannot remit the award completely.
The Court does agree, however, that an award of $275,000 is excessive in light of the
evidence presented at trial. Faulk attempts to analogize his case to Forsyth, supra, where
Forsyth received $125,000 in punitive damages from each of two defendants under § 1983.
The Forsyth plaintiffs had been transferred for reporting unlawful activity that not only
violated other citizens' constitutional rights to privacy but compromised a sensitive
undercover investigation. See Forsyth, 91 F.3d at 772. Forsyth not only demonstrates that the
award of $275,000 was grossly excessive in Faulk's case, but Forsyth's far more egregious
facts distinguish it from this case. Duplantis's conduct violated Faulk's clearly established
rights but his conduct was neither shocking nor reprehensible and there was no evidence of
malice or danger to others. Moreover, there was no evidence offered at trial to suggest that an
award of $275,000 is necessary to effectively punish Duplantis in light of his personal

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resources. And a $275,000 personal judgment against a police officer is well beyond what is
necessary to deter either Duplantis or others in his position from engaging in similar conduct.
The Court will remit the punitive damages award to $15,000. If Faulk refuses to remit then the
Court will order a new trial on damages.
The motion for attorneys fees is dismissed as premature.7
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for New Trial, or in the Alternative,
Remittitur (Rec. Docs. 107) filed by Defendant, Todd Duplantis is GRANTED. The Court
remits the compensatory damage award to $30,000 and the punitive damage award to
$15,000. On or before December 31, 2014, Faulk must either file into the record an
acceptance of the remittitur or a notice of his intent to retry the damages portion of this case;8
IT IS ORDERED that the Motion for Attorney's Fees (Rec. Doc. 110) filed by
Plaintiff, Kyle Faulk is DENIED without prejudice as premature.
December 9, 2014
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
Clerk: Copy via ECF to Magistrate Judge Knowles

The attorney's fee motion is premature but the Court advises that fees of $159,000
based on an hourly rate of $350.00 will not be awarded. And of course the figure of $140,000
based on a contingency fee calculation is no longer valid in light of the remittitur.
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The Court strongly urges the parties to attempt once again to settle this matter. At the
parties' request, the Court will extend the deadline for Faulk to file his notice regarding the
remittitur/new trial if the parties need additional time to engage in settlement negotiations.
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