NANCE, et al v. CITY OF NEWARK, et al
Filing
285
OPINION. Signed by Judge Dennis M. Cavanaugh on 1/30/14. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DARREN M. NANCE,
:
Hon. Dennis M, Cavanaugh
Plaintiff,
:
OPINION
X.
Civil Action No. 2:97-cv-06184 (DMC) (JBC)
CiTY OF NEWARK, NEWARK POLICE:
DEPARTMENT, et al.,
Defendants.
DENNIS M. CAVANAUGH. U.S.D.J.:
This matter comes before the Court on remand from the Third Circuit Court of Appeals
for a decision on whether the jury’s award to Plaintiff Darren M. Nance (‘Nance” or “Plaintifr)
of $350000 in compensatory damages includes some identifiable component of past economic
damages on which prejudgment interest should have been awarded.
Sc Nance v.
City of
Newark. et al., 501 Fed. App’x 123 (3d Cir. 2012). Pursuant to Fed. R. Civ. P. 78, no oral
argument was heard. Based on the following and for the reasons expressed herein. Plaintiffs
request fcr prejudgment interest on the jury’s award of compensatory damages is granted,
I.
BACKGROUND
Nance was terminated from his position as a police officer in the City’ of Newark, New
Jersey in 996. He later filed suit against the City of Newark, the Newark Police Department
and numerous individual defendants alleging that they terminated him in retaliation for whistle
blowing activity and other conduct protected by the First Amendment. Nance asserted claims
under both 42 U.S.C.
§
1983 and the New Jersey Law Against Discrimination (“NJLAD”), N.J.
Stat Ann.
§
10:5-I to -49. On June 24, 2010, after a twelve-day trial, the jury returned a
verdict in thvor of Nance on two claims: a
§
1983 First Amendment retaliation claim based on
his petitioning activity, and a “discrimination and/or retaliation” claim under the NJLAI).
The
next day. the jury returned a general verdict on damages, awarding Nance
$350,000 in
compensatory damages and $250,000 in punitive damages.
Shortly thereafter, Nance filed a motion for reinstatement to his former position. The
District Court denied that motion as well as Nance’s motion for reconsideration, Nance
filed a
pro se appeal to the Third Circuit challenging the District Court’s order denying his motion for
reinslatement. The Third Circuit affirmed the District Court’s decision on this issue.
Nance also requested prejudgment interest on the entire jury award. This Court denied
that request by Order dated May 2, 2011 on the grounds that (1) New Jersey law does not permit
prejudgment interest on awards for future economic loss and (2) due to the use of a general
verdict sheet, agreed to after review by both parties, the Court could not determine what portion
of the jury award included damages for past economic loss. (ECF No. 254). As support for the
latter conclusion, the Court cited Mandile v. Clark Material Handling Co., 303 F. Supp. 2d 531.
536 (D.Ni. 2004) (denying prejudgment interest on general verdict). Nance appealed the order
denying prejudgment interest.
On appeal, the Third Circuit found that the Court’s reliance on Mandile for the
proposition that the jury’s general verdict prevented the court from determining the nature
of the
jury’s award was misguided. Nance, 501 Fed. App’x at 130. The Third Circuit asserted that
it
“neither held nor opined that parties must always request special interrogatories on the issue of
damages or the nature of a jury award can never be determined from a general verdict.” Id.
Relying on Crowley v. Chait, No. 85-2441. 2005 U.S. Dist. LEXIS 40828 (D.N.J. Sept. 30,
2
2005) and Gierlinger v, Gleason, 160 F. 3d 858 (2d Cir. 1998), the Third
Circuit held that the
Court should have inquired more thoroughly into whether the award included
an identifiable
component of past economic damages on which prejudgment interest should have
been awarded.
Nance,
So
1 Fed. Appx at 1 30-3 1. Specifically, the Third Circuit concluded that instead of
making cursory assumptions about the jury award, the Court was required to examine
“the record
-
including the verdict form, the evidence presented at trial, and the jury instructions
—
in order to
determine, inter alia, whether there was ‘a reasonable basis for inferring that part
of the jury’s
award sought to compensate for future losses[.j” Id. at 131 (citing jliggr, 1 60 F.
3d at 875).
Accordingly, the Third Circuit vacated the Court’s order denying prejudgment interest and
remanded it to the District Court for a more thorough analysis o [the record.
II.
LEGAL STAN1)AR1)
When addressing federal discrimination claims made by a plaintiff under Title Vii. coons
act under a “strong presumption” to make the plaintiff whole by awarding prejudgment interest
when the plaintiff has been awarded back pay or lost wages. Booker v. Taylor Milk Co., 64 F.3d
860, 868 (3d Cir. 1995). This principle extends to
§
1983 retaliation claims. See Gierlinger, i60
F.3d at 873. New Jersey Court Rule 4:42-1 1(b) requires an award of prejudgment interest in tort
actions. NJI.A[) was amended to include all remedies available in common law tort actions. thus
making prejudgment interest an available remedy for plaintiffs. Abrams v. Lightolier. Inc.. X41
F. Supp. 584, 599 (D.N.J. 1994); Potente v. Cnty. of Hudson. 187 N.J. 103. 112-13 (2006).
Prejudgment interest is not available for future economic loss under either federal law or New
Jersey law. Thabault v. Chait, 541 F.3d 512, 533-34 (3d Cir. 2008); Poleto v. Conrail Corp., 826
F. 2d 1270, 1278 n. 14 (3d Cir. 1987); R. 4:42-11(b).
The Third Circuit has rejected the notion that without the use of special interrogatorics to
distinguish between past and future economic damages, the nature of the
jury award cannot he
determined and therefore prejudgment interest cannot be calculated. Nance
. 501 Fed. App’x at
130. Instead, the Third Circuit requires that the Court carefully review the
record in order to
determine whether the award included an identifiable component of past
economic damages on
which to award prejudgment interest. Id. at 131. In its review, the Court should
thoroughly
examine the verdict form. the evidence presented at trial and the jury instruc
tions to determine
whether there is a reasonable basis to infer that part of the jur’s award of compe
nsatory
damages did or did not include future losses. Id.
III.
ANALYSIS
There is no question that Plaintiff is eligible for prejudgment interest on any portion of
the jury’s compensatory damages award that can be attributed to past losses. The primar
y issue
bek)re this Court is whether or not this portion can be determined. The Court points out that
Plainti Fl’ had the opportunity to request jury instructIons to segregate the verdict, special
interrogatories, and/or a verdict sheet that provided for a segregated verdict that would allow
the
Court to easily determine which portion, if any, of the award represented future losses.
Although
the Third Circuit rejected the notion that making such requests was necessary to preserv
e a claim
for prejudgment interest, it did emphasize that “requesting special jury interrogatorie
s to
facilitate the calculation of damages benefits both the litigants and the District Court
and remains
the better practice.” Id. at 130 n. 8.
The Third Circuit requires that the Court engage in a more searching
review
of the record
to determine whether the amount of past losses is identifiable. The Court will begin by
examining the verdict form. The Third Circuit pointed out, as does Plaintiff, that the verdict
form says nothing about future losses. The jury verdict form asked the jury only to “[p]lea
se
4
state the amount that will fairly
compensate
Plaintiff for any injury which lie actually sustained
as a resud of’ the City of Newark’s conduct which shall include physic
al harm, emotional and
mental harm and lost wages (income).” (ECF No. 21 5) (emphasis
added). The Court agrees that
the language “any injury., .actually sustained” is suggestive of past harm
and may have been
interpreted by the jury to include only past losses. However, even the loss
of future wages is
arguably an injury “actually sustained” by the Plaintiff Similarly, althou
gh future losses are not
specified in the verdict form, the language “lost wages” could refer to both
lost past wages and
lOSt
future wages and therefore does not definitively indicate only past econom
ic losses. Overall,
the Court finds that the language of the verdict forii alone, although sugges
tive of past loss, is
insufficient to provide a reasonable basis to conclude whether or not the compe
nsatory damage
award included future losses. The Court must therefore look at other relevan
t parts of the record
to make this determination.
During a jury charge conference between the Court and counsel for both parties, the
Court suggested that the verdict sheet “differentiate in the amounts as to what is front
pay
compared to back pay.” (Damages Trial Tr. 17:8-10. June 25. 2010.) However, despite
the
Court’s attempt to distinguish between back pay and front pay. both attorne agreed
ys
that this
differentiation was unnecessary as Plaintiffs expert economist. Dr. Frank D. Tinari
(“I)r.
Titian”), would make the distinction clear in his testimony. j at 17:1 1-17, 22-25.
The Court,
therefore, will examine Dr. Tinari’s testimony to see if such a distinction was
made clear.
Dr. Tinari calculated that in the fourteen years from the date of Plaintiff’s termin
ation
until the approximate time of trial. Plaintiffs total past lost wages would
be $711,000 if he was
never promoted and $755,000 with promotions. Id. at 41:1 5—20. Dr. Tinari
then went on to
address future losses and explained the concept of “present value,” stating that
“when we project
losses in the future, we need to know what are those dollars worth in today’
s money,” Id. at
43:18-20. Dr. Tinari then calculated that, without promotions. one year
of future loss converted
to present value would be $93,809 and six years would be $554000.
at 45:11-15. Using the
promotions scenario. I)r. Tinari projected one year of future loss to he $98.00
0 for one year and
$58400() for six years. Id. at 46: 1 8-20. Essentially. Dr. Tinari made two distinct sets
of
chronological calculations, one for fourteen years of back pay. accounting for
the years from
termination in 1996 until 2009, and one for up to six years of front pay, corresp
onding to the
years 2010 through 2015.
The Court finds that it is reasonable to conclude that Dr. Tinari’s chronological
breakdown of back pay would have left the impression with the jury that any award of front
pay
would be added only if the jury first found that Plaintiff was entitled to all fourteen years
of hack
pay. For example. if the jury determined Plaintiff was entitled to seven years of lost wages.
it
would not make sense for the jury to award back pay for the years 1996 to 2000 and then front
pay for 201 0 to 2011. The more logical calculation would be to award seven years of back
pay
representing the years 1996 to 2002. It is also therefore reasonable to conclude that a
compensatory damage award of less than the total back pay amount of either $711,000 or
$75 5,000 would not include front pay. This determination is supported by the following
language in Defendant Counsel’s closing statement:
if you don’t think that Mr. Nance should get 14 or 15 years of hack pay.. .tben I submit to
you, you don’t even get to the question of front pay. You oni really get to the question
of front pay if you decided that you wanted to give Mr. Nance 14 years of back pay and
then give him some more.
Id. at 1 30:1-7. This delineation between front pay and back pay was made clear to the
jury by
Mr. Tinari and then further clarified by Defendant Counsel. Given that the jury’s compe
nsatory
damages award was far below the total back pay amount estimated by Mr. Tinari, the Court
finds
6
there is a reasonable basis to infer that no part of the award sought to compensate
Plaintiff for
future losses.
As required by the Third Circuit, the Court must also look to the jury instructions for
any
potential further insight into the breakdown of the jury’s compensatory damages
award, As to
lost wages, the Court instructed the jury to consider
the wages, salary, profits, reasonable value of the working time that the plaintiff has
lost
because of his inability and diminished capacity in an amount that would be able to
compensate and the present value of the wages, etcetera, that the plaintiff is reasonably
certain to lose in the future because of his inability to work.
Id. at 145:22-25; 146:1-2. As evidenced by the language “present value of the wages” and
“lose
in the future,” it is clear that the Court did instruct the jury as to future lost wages. However,
this
instruction is simply a general guideline informing the jury that it may consider loss of both past
and future wages in its damages calculation and does not provide any clear evidence as to the
jury’s determination itself.
Finally, the Court must also consider the fact that the jury may have reduced Plaintifts
damage award for failure to mitigate. 1-lowever, given Dr. Tinari’s calculation of total lost back
pay of approximately $700,000 and total lost back and front pay combined of between $1.26 and
$1 .3 million dollars, the Court finds that even if the jury reduced the damages for failure to
mitigate, its comparatively low compensatory damage award of $350,000 still demonstrates that
the award does not include front pay. In sum, the Court finds that Mr. Tinari’s testimony, in
conjunction with I)efcndant Counsel’s closing statement and the suggestive language of the
verdict form provides a reasonable basis to infer that the jury’s compensatory damages award
of
$350,000 does not include future economic loss. Therefore, Plaintiff is entitled to prejudgment
interest on the entire compensatory damages award.
7
IV,
CONCLUSION
For the foregoing reasons, Plaintiff’s request for prejudgment interest on the jury’s
compensatory damages award of $350,000 is granted.
Date:
Original:
cc:
Dc
January
2014
Clerks Office
Hon. James B. Clark, U.S.M.J.
All Counsel of Record
File
8
is M. Cavanaugh. U
.
.J.
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