Huang v. The Rector and Visitors of the University of Virginia et al

Filing 135

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 3/7/13. (hnw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CASE NO. 3:11-cv-00050

WEIHUA HUANG,
Plaintiff,
v.

MEMORANDUM OPINION

THE RECTOR AND VISITORS OF THE UNIVERSITY
OF VIRGINIA, ET AL.,

JUDGE NORMAN K. MOON

Defendants.

After a four-day trial in this False Claims Act (“FCA”) retaliation case, a jury found in
favor of Plaintiff Weihua Huang (“Plaintiff”) against Defendants Ming D. Li (“Dr. Li”) and
Bankole A. Johnson (“Dr. Johnson”) (collectively, “Defendants”), and awarded Plaintiff
$159,915 in lost wages and $500,000 in compensatory damages. Pending before this Court are
three motions filed after the trial: (1) Defendants’ motion pursuant to Federal Rule of Civil
Procedure 50(b) and Rule 59 for judgment as a matter of law or for a new trial; (2) Defendants’
motion for a new trial nisi remittitur; and (3) Plaintiff’s motion for front pay as a form of
equitable relief in the absence of reinstatement.1 For the following reasons, I will deny
Defendants’ motion for judgment as a matter of law, grant Defendants’ motion for a new trial
nisi remittitur, and deny Plaintiff’s motion for front pay.
I. BACKGROUND2
This action arises out of Plaintiff’s employment by the Rector and Visitors of the
University of Virginia (“UVa”) as a research assistant professor in the Department of Psychiatry
1

Also pending is Plaintiff’s motion for attorneys’ fees, which I referred to Magistrate Judge B. Waugh Crigler, who
stayed proceedings related to attorneys’ fees and costs pending resolution of the other post-trial motions.
2
A more detailed summary of the facts in this case can be found in this Court’s opinion in Huang v. Rector and
Visitors of the Univ. of Va., -- F. Supp. 2d --, No. 3:11-cv-00050, 2012 WL 4458177 (W.D. Va. 2012).

and Neurobehavioral Sciences (the “Department”) within UVa’s School of Medicine. Plaintiff
performed research in a lab run by Dr. Li, who had been Plaintiff’s supervisor and mentor at
multiple universities beginning in 1999. Dr. Johnson was and remains the chairman of the
Department. In 2008, Plaintiff applied for a grant from the National Institutes of Health (“NIH”)
to fund a proposed research project called “Functional Characterization of ANKK1 and its
Genetic Variants” (the “ANKK1 Grant”). Dr. Huang secured the approval of Dr. Li and Dr.
Johnson, and the NIH approved the project for a period from June 15, 2009, through February
28, 2011. Plaintiff was to serve as the sole “principal investigator” or “PI” on the ANKK1
Grant, but he was to perform the research in Dr. Li’s lab.
Shortly after Plaintiff began working on the ANKK1 Grant, he became concerned that he
had not been receiving monthly status reports for the grant from the Department and that
someone else had taken control over the grant. In August and September of 2009, Plaintiff
contacted Department staff and ultimately Dr. Johnson to express his concerns. When he finally
received the status reports, he found that Dr. Li had changed the “levels of effort” on the grant
without his authorization. The “levels of effort” reflected how much time individuals in Dr. Li’s
lab spent working on the grant, and money from the grant was allocated to salaries and expenses
based on the levels recorded. As the PI, Plaintiff was charged with responsibility to allocate,
alter, and approve any level of effort charged to the project account. According to Plaintiff, Dr.
Li’s changes to the “levels of effort” did not accurately reflect the work that was actually being
conducted on the ANKK1 Grant, and the changes would have had the effect of drawing money
from the ANKK1 project to pay unrelated salaries and expenses. Believing that Dr. Li’s actions
represented a misappropriation of the ANKK1 Grant funds, Plaintiff reported the unauthorized
modifications to Dr. Johnson. Although he denied that Dr. Li’s actions were inappropriate or

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unlawful, Dr. Johnson assured Plaintiff that the changes would be readjusted and any money that
had been withdrawn would be refunded.
Shortly thereafter, on or about November 20, 2009, Plaintiff received a notice of nonrenewal from Dr. Johnson, informing him that UVa would not be renewing his employment
contract, which was set to expire one year later, in November 2010. Plaintiff believed that the
non-renewal of his contract constituted retaliation for raising his concerns about the incorrect
assignment of “levels of effort” on the ANKK1 Grant. Consequently, he filed suit in this Court
in August 2011, bringing a variety of claims against Defendants and UVa. In ruling on
Defendants’ motions to dismiss and for summary judgment, I dismissed all of Plaintiff’s claims
except one: a claim against Defendants for retaliation in violation of the FCA. That claim
proceeded to trial, and the jury found in favor of Plaintiff against both Defendants.
II. Defendants’ Motion for Judgment as a Matter of Law
Federal Rule of Civil Procedure 50(a)(1) authorizes a court to grant a party judgment as a
matter of law where there is “no legally sufficient evidentiary basis for a reasonable jury to find”
for the opposing party on an issue. “A Rule 50(b) motion should be granted if a district court
determines, without weighing the evidence or considering the credibility of the witnesses, that
substantial evidence does not support the jury's findings.” Konkel v. Bob Evans Farms Inc., 165
F.3d 275, 279 (4th Cir. 1999). In considering a Rule 50(b) motion, a court must examine the
evidence in the light most favorable to the non-moving party. Brown v. CSX Transp., Inc., 18
F.3d 245, 248 (4th Cir. 1994). “A court should only grant such a motion if it determines that ‘the
only conclusion a reasonable trier of fact could draw from the evidence is in favor of the moving
party.’” Bonner v. Dawson, 404 F.3d 290, 295 (4th Cir. 2005) (quoting Figg v. Schroeder, 312
F.3d 625, 635 (4th Cir. 2002)).

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“Unlike a motion made under Rule 50, a motion made under Rule 59(a) permits the Court
to weigh the evidence and to consider the credibility of witnesses.” Bennett v. R & L Carriers
Shared Servs., LLC, 744 F. Supp. 2d 494, 509 (E.D. Va. 2010) (citing Cline v. Wal-Mart Stores,
Inc., 144 F.3d 294, 301 (4th Cir. 1998)). A court should grant a new trial if: “[1] the verdict is
against the clear weight of the evidence, or [2] is based upon evidence which is false, or [3] will
result in a miscarriage of justice, even though there may be substantial evidence which would
prevent the direction of a verdict.” Atlas Food Sys. and Servs., Inc. v. Crane Nat. Vendors, Inc.,
99 F.3d 587, 594 (1996) (quoting Aetna Casualty & Sur. Co. v. Yeatts, 122 F.2d 350, 352–53
(4th Cir. 1941)). The decision whether to grant a new trial is reviewed for abuse of discretion. Id.
A. Individual Liability Under the FCA
Defendants first argue that they are entitled to judgment as a matter of law because the
FCA does not provide for individual liability. In support of this argument, Defendants rely on
Aryai v. Forfeiture Support Associates, LLC, No. 1:10-cv-08952, 2012 U.S. Dist. LEXIS 125227
(S.D.N.Y. Aug. 27, 2012), which was decided after the parties in this case concluded their
briefing on Defendants’ summary judgment motion. The plaintiff in Aryai brought a claim
against the United States Marshals Service and one of its employees for retaliation in violation of
the whistleblower provision of the FCA, 31 U.S.C. § 3730(h), and the court held that “section
3730(h) does not apply to individuals.” Id. at *12–13. After concluding that the claim against
the Marshals Service was barred by sovereign immunity, id. at *13–19, the court dismissed the
claim for damages against the individual defendant in his official capacity for the same reasons.
Id. at *19. The court then considered whether the FCA permitted a claim against the individual
defendant in his individual capacity, ultimately concluding that it did not. Id. at *27.

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Prior to 2009, it was clear that § 3730(h) did not apply to individual supervisors. Id. at
*19 (citing United States ex rel. Golden v. Ark. Game & Fish Comm’n, 333 F.3d 867, 870–71
(8th Cir. 2003)); see also Huang, 2012 WL 4458177, at *18 n.16 (“Prior to the 2009 amendment,
plaintiffs could only file FCA retaliation claims against their employers.”). In 2009, however,
Congress amended the FCA statute, removing the reference to retaliation “by [an] employer,”
and arguably expanding the universe of possible defendants to include individual supervisors.
See Aryai, 2012 U.S. Dist. LEXIS 125227, at *20. After conceding that “there is some merit” to
the argument that the defendants in Aryai were asking the court “to read words into a statute that
are simply no longer there” by retaining the old prohibition against individual liability, the court
nevertheless concluded that common sense, precedent, and legislative history “rebut the
presumption that Congress intended to expand liability by removing the word ‘employer’ from
section 3730(h).” Id. at *22.
Although the Aryai court stated that it was “aware of no other court’s having conclusively
decided this issue” of individual liability after the 2009 amendments, id. at *20, it recognized
that the court in Laborde v. Rivera-Dueño, 719 F. Supp. 2d 198, 205 (D.P.R. 2010), did discuss
the issue. See Aryai, 2012 U.S. Dist. LEXIS 125227, at *20. In Laborde, the plaintiff brought a
FCA retaliation claim against the acting Secretary of the Puerto Rico Department of Health in his
individual capacity. 719 F. Supp. 2d at 200, 203. In considering whether the FCA provided for
individual liability after the 2009 amendments, the Laborde court stated that “[i]n the absence of
specific First Circuit guidance holding that individual liability does not exist in FCA retaliation
claims, and in light of the fact that the persuasive authority on the issue relies upon an outdated
version of the statute,” the court would not grant the defendant’s motion to dismiss. Id. at 205.
The Aryai court found the Laborde decision was not persuasive because it “did not advance any

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affirmative reason to interpret the amended statute as providing for individual liability,” see
Aryai, 2012 U.S. Dist. LEXIS 125227, at *20 n.5, and because the it was later vacated on other
grounds in Laborde v. Rivera-Dueño, No. 09-1368, 2011 WL 814965 (D.P.R. Mar. 4, 2011).
See id.
Plaintiff asserts that Defendants have waived the argument that the FCA does not provide
for individual liability. Defendants’ argument is “in the nature of a Rule 12(b)(6) motion,”
Plaintiff argues, therefore Defendants needed to raise it “no later than at trial according to Rule
12(h)(2)(C).” Rule 50(a)(2) provides that 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 judgment.” “Since the post-submission
motion is nothing more than a renewal of the earlier motion made at the close of the presentation
of the evidence, the case law makes it quite clear that the movant cannot assert a ground that was
not included in the earlier motion.” 9B Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 2537 (3d ed. 2008) (citing Unitherm Food Sys., Inc. v. Swift-Eckrich,
Inc., 546 U.S. 394, 400–01 (2006)). Defendants did not raise the issue of whether the FCA
permits individual liability either before or during the trial; 3 thus, Plaintiff contends, they have
waived the argument.

3

In my opinion granting in part and denying in part Defendants’ motion for summary judgment, I noted that
Defendants had not raised the issue of individual liability, and I adopted an approach similar to that taken by the
court in Laborde. I found that:
In the absence of specific guidance from the United States Court of Appeals for the Fourth Circuit
dictating that there can be no individual liability in FCA retaliation claims after the 2009
amendment, and because Defendants do not assert in their motion that Dr. Huang's FCA claims
against them are legally impermissible, I will not dismiss those claims out of hand. Instead, I
proceed to the ordinary summary judgment analysis.
Huang, 2012 WL 4458177, at *18 n.16.

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Defendants make two arguments in response. First, they argue that if the FCA does not
provide for individual liability, then this Court lacks subject matter jurisdiction to hear this case,
and objections to subject matter jurisdiction can be raised at any time. See, e.g., Henderson v.
Shinseki, 131 S. Ct. 1197, 1202 (2011). But Defendants’ argument about the availability of
individual liability does not raise a jurisdictional question; rather it goes to whether Plaintiff can
state a claim and to the merits of his case. “A district court has subject-matter jurisdiction under
[28 U.S.C.] § 1331 when ‘the right of the petitioners to recover under their complaint will be
sustained if the Constitution and laws of the United States are given one construction and will be
defeated if they are given another.” Laber v. Harvey, 438 F.3d 404, 425 (4th Cir. 2006) (quoting
Bell v. Hood, 327 U.S. 678, 681 (1946)). That is precisely the situation in this case: Defendants
are asking this Court to interpret a federal statute one way, and Plaintiff believes it should be
interpreted a different way. Regardless of how this Court might answer that question, it certainly
has jurisdiction to decide the issue. I therefore conclude that Defendants’ argument is not a
jurisdictional one that cannot be waived.
Second, Defendants argue that Aryai represents an “intervening change in the law
recognizing an issue that was not previously available,” Holland v. Big River Minerals Corp.,
181 F.3d 597, 605 (4th Cir. 1999), and therefore they have not waived their argument regarding
individual liability. Although they emphasize that unlike Holland, this case does not involve a
potentially dispositive argument being made for the first time on appeal, but rather at the district
court level, Defendants nevertheless make their case under Holland’s analytical framework. The
court in Holland stated that:
The intervening law exception to the general rule that the failure to raise an issue
timely in the district court waives review of that issue on appeal applies when
there was strong precedent prior to the change such that the failure to raise the

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issue was not unreasonable and the opposing party was not prejudiced by the
failure to raise the issue sooner.
Id. at 605–06 (citations omitted). Although Defendants assert that there was “a good amount of
law strongly suggesting, without deciding, that individual liability was a possible remedy under
§ 3730(h) after the 2009 amendment,” none of the cases they cite support that claim. In fact,
their argument on the first prong of the Holland analysis is seriously undermined by the Aryai
court’s conclusion that only one other case, Laborde, “even discusses the issue.” Aryai, 2012
U.S. Dist. LEXIS 125227, at *20 n.5. If only one other case even discussed the issue, it is
extremely difficult to see how there was “strong precedent prior to the change such that the
failure to raise the issue was not unreasonable.” If anything, the “strong precedent” that predated
Aryai appeared to support Defendants’ position, not Plaintiff’s. Given that, as Defendants point
out, “for over 146 years the FCA clearly provided for no individual liability,” there does not
appear to be any good reason why Defendants could not have made at an earlier stage in this case
the same arguments made by the defendants in Aryai. In any case, I fail to see how a lone
district court case outside of this circuit could constitute an intervening change in the law.
Accordingly, I conclude that there has not been an intervening change in the law that would
excuse Defendants’ failure to raise the issue of individual liability before or during trial, and they
have therefore waived that argument.4 Because I find that Defendants have waived the argument
that the FCA does not provide for individual liability, I need not decide that issue.
B. Accuracy of the Jury Instructions
Defendants renew the argument they made at trial that the claim Plaintiff argued to the
jury was different from that alleged in the Amended Complaint and was not supported by the

4

The fact that this Court specifically noted that Defendants had not made any argument about individual liability in
their motion for summary judgment further indicates that the argument was one that was available for Defendants to
make at that time or at trial.

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jury instructions filed before trial. Defendants suggest that they faced some type of unfair
surprise when Plaintiff submitted proposed jury instructions during trial that were different than
those submitted before trial. Since the Court decides what instructions to give, Defendants’
position must boil down to an argument either that Jury Instruction #12 incorrectly stated the law
or that the claim Plaintiff made did not support giving the instruction at all. Specifically,
Defendants take issue with the following portion of Jury Instruction #12: “Violations of the False
Claims Act include . . . knowingly making, using, or causing to be used, a false record or
statement material to a false or fraudulent claim.” Defendants argue this instruction:
effectively transformed the case Plaintiff had pled and supported with his timely
filing of proposed instructions, which was a case of misappropriation of funds,
attempts to defraud the federal government, and reasonable basis for an actual
false claim, to one that required no more than the creation of a false record that
could potentially result in a false or fraudulent claim.
As Plaintiff points out, however, Count I of the Amended Complaint explicitly alleged
FCA retaliation under 31 U.S.C. § 3730(h). Section 3730(h) provides relief for retaliation
“because of lawful acts done by the employee . . . in furtherance of an action under this section
or other efforts to stop 1 or more violations of this subchapter.” One type of violation of the
FCA occurs when a person “knowingly makes, uses, or causes to be made or used, a false record
or statement material to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(B). Since Jury
Instruction #12 precisely tracked the language of the statute, I find that it accurately stated the
law. The core of Plaintiff’s Amended Complaint alleged that he suffered retaliation for actions
he took in furtherance of an effort to stop the type of FCA violation described in Jury Instruction
#12. Consequently, and as I will discuss in more detail in the next section, I find that the
evidence presented at trial supported giving the instruction.

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C. Sufficiency of the Evidence
Defendants also contend that there was insufficient evidence for a jury to find in favor of
Plaintiff, and they assert that the jury’s verdict was inconsistent with this Court’s instructions.
Generally, Defendants argue: (i) that it was unreasonable for the jury to find that Plaintiff
suffered retaliation because the evidence showed that he would have been fired anyway; and (ii)
neither Dr. Li nor Dr. Johnson had any actual or constructive knowledge that a false claim was
going to be submitted to the NIH, so they could not have retaliated against Plaintiff for engaging
in protected activity. After reviewing the evidence, I conclude that the jury’s verdict was not
inconsistent with this Court’s instructions, and there was sufficient evidence for the jury to find
in favor of Plaintiff.
First, Defendants argue that the jury “could only have come to the verdict they did by
ignoring Jury Instruction #7(b), which stated in full:
If you find that Dr. Huang has proven that he was discharged, at least in part, in
retaliation for engaging in protected conduct under the False Claims Act, you
should find in favor of Dr. Huang, unless the defense has proven by a
preponderance of the evidence that he was fired for other reasons. If you find the
defense has proven that Dr. Huang would have been terminated for reasons other
than retaliation, you should find for the Defendants. If the defense has not proven
termination was for other reasons, you should find for Dr. Huang.
Essentially, Defendants contend that they presented so much evidence that Huang was fired for
reasons other than engaging in conduct protected by the FCA, it was unreasonable for the jury to
find otherwise. In particular, Defendants argue that the evidence conclusively demonstrated that
Plaintiff ignored performance expectations and directions from his supervisors regarding
reporting his activities in the lab and how to handle the purchase of a laptop computer. Plaintiff
points to testimony in which he disputed Defendants’ explanations, and argues that the jury was
free to weigh the credibility of the witnesses in deciding whom to believe.

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I agree with Plaintiff, and I also find that the temporal proximity between Plaintiff raising
his concerns about the levels of effort assigned to the ANKK1 Grant and Dr. Li making the
decision to “let him go” supports the jury’s conclusion that Plaintiff was discharged “at least in
part” for engaging in protected conduct. While there may have been problems with Plaintiff’s
performance and his ability or willingness to follow his supervisors’ instructions in the past, he
continued to receive positive performance evaluations, and discussion regarding letting him go
does not appear to have begun until after he raised questions about improper recordkeeping
concerning levels of effort. Plaintiff emailed Greg Benham, the Department’s Chief Operating
Officer on September 2, 2009, requesting monthly reports for the ANKK1 Grant, and informing
Benham that “[i]f I cannot receive these monthly reviews promptly or if there is something
wrong about them, I have to report promptly to the Department Chair, the OSP and/or the
University Audit Department.” Pl.’s Ex. 29, ECF No. 103-1. Benham forwarded Plaintiff’s
request to Dr. Li the next morning, and Dr. Li asked Benham to “please hold little bit” on giving
Plaintiff the reports. Id. That same day, September 3, 2009, only one day after Plaintiff raised
the possibility of reporting his concerns about the grant reports to the Audit Department, Dr. Li
wrote back to Benham, copying Dr. Johnson, and stated “I really cannot work under this
situation. It is time to do proper paper work and let him go. Too much headache for me.” Id.
The content of these emails and the short timeframe in which they were sent provide sufficient
evidentiary support for the jury to conclude that Plaintiff’s contract was not renewed, at least in
part, because he raised his concerns about his access to and the accuracy of the grant reports.
Thus, I find that the jury’s verdict was not inconsistent with Jury Instruction #7(b).
Second, Defendants contend that they could not have retaliated against Plaintiff because
they presented no false claims to the government, and they lacked knowledge of any records or

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activity that even potentially could have led to the submission of false claims. The fundamental
problem with Defendants’ argument is that they continue to defend themselves as though
Plaintiff had to prove that they violated the FCA. Instead, Plaintiff had to prove that they
retaliated against him for engaging in conduct that was protected under § 3730(h). To be more
specific, Plaintiff did not need to prove that Defendants knowingly presented to the government
false or fraudulent claims or even that they knowingly made false records or statements material
to a false or fraudulent claim. All he had to prove is that Defendants retaliated against him—i.e.,
took adverse action against him—“because of lawful acts done by [Plaintiff] . . . in furtherance
of an action under this section or other efforts to stop 1 or more violations of this subchapter.”
31 U.S.C. § 3730(h)(1).
Based on the evidence presented at trial and the law given to the jury in the jury
instructions, I conclude that the jury acted reasonably in finding in favor of the Plaintiff. Jury
Instruction #10 stated the elements of a retaliation claim. Plaintiff had to prove that: (1) he
engaged in protected activity under the FCA; (2) Defendants had knowledge that he engaged in
protected activity; and (3) Defendants engaged in adverse action against him in retaliation for
engaging in protected activity. In support of the first element, Plaintiff testified that he believed
some portion of his NIH grant funds were being allocated to individuals who were not working
on the ANKK1 Grant. See Trial Tr. 64–73, Oct. 10, 2012, ECF No. 107. His belief was based
on records regarding levels of effort assigned to employees in Dr. Li’s lab. Id. If the levels of
effort were incorrect, as Plaintiff believed them to be, then they were “false record[s] or
statement[s] material to a false or fraudulent claim” because they served as the basis for
documentation that would eventually be presented to the NIH.

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As for the second element, while Defendants disclaim any actual or constructive
knowledge regarding the making or using of false records or statements, Plaintiff did present
sufficient evidence for a reasonable jury to conclude that both Defendants knew that certain
records were false. Plaintiff testified that Dr. Li actually knew that the levels of effort assigned
to the ANKK1 Grant were false because he knew that Nicole Gautier was not spending 50% of
her time on Plaintiff’s grant and that he, Dr. Li, was not spending 7.5% of his own time on the
grant. Id. at 65:9–16. With respect to Dr. Johnson, Plaintiff testified that he told Dr. Johnson
that the levels were assigned incorrectly and without his input or approval. Id. at 69:16–71:10.
Thus, both Dr. Johnson and Dr. Li knew that Plaintiff believed that there were false records and
that Plaintiff was taking action to correct such records.
The third and final element is whether Defendants engaged in adverse action against
Plaintiff in retaliation for engaging in protected activity. As already discussed, Dr. Li’s email
strongly suggests a connection between Plaintiff’s inquiries into what he believed were false
levels of effort and the ultimate non-renewal of his contract. In sum, Defendants knew that
Plaintiff was questioning the accuracy of the levels of effort, which ultimately would determine
whether false claims would be submitted to the NIH. Plaintiff testified that Defendants knew
that the levels were in fact false, in Dr. Li’s case because he actually made the allegedly incorrect
assignments with knowledge that neither he nor Nicole Gautier had in fact worked on the
ANKK1 Grant, and in Dr. Johnson’s case because Plaintiff told him that the levels were
incorrect. Defendants knew, or should have known as experienced researchers who sought,
received, and administered NIH grants, that claims presented to the NIH must be accurate. Thus,
they knew or should have known that Plaintiff was engaging in protected activity by attempting
to ensure that false records were not kept or submitted to the government. Regardless of whether

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Plaintiff was right or wrong about the levels of effort and regardless of whether Defendants’
actions would support an independent claim against them for violating the FCA, the evidence
supports a finding that they engaged in an adverse action against Plaintiff by not renewing his
contract, at least in part, because he engaged in the protected activity.
III. Defendants’ Motion for a New Trial Nisi Remittitur
Defendants have also moved for a new trial nisi remittitur, arguing that under Fourth
Circuit precedent, the evidence presented at trial was insufficient as a matter of law to support
the jury’s award of $500,000 in compensatory damages. According to Defendants, the verdict
was excessive because the only evidence presented on the issue of emotional damages came
from Plaintiff’s own testimony and lacked support from any medical evidence or other
corroborating testimony. Therefore, Defendants request that Plaintiff either accept a reduction in
compensatory damages from $500,000 to $10,000 or submit to a new trial. Because I find that
the jury’s award is not proportional to the actual injury suffered by Plaintiff and is inconsistent
with similarly situated federal cases, I conclude that the verdict was excessive and should be
remitted. Having considered the evidence in this case in light of the Fourth Circuit’s guidance
on remittitur, I will remit the jury award to $100,000.
“[I]f a court concludes that a jury award of compensatory damages is excessive, it may
order a new trial nisi remittitur.” Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495, 502 (4th
Cir. 2007). “Remittitur, which is used in connection with Fed. R. Civ. P. 59(a), is a process,
dating back to 1822, by which the trial court orders a new trial unless the plaintiff accepts a
reduction in an excessive jury award.” Cline, 144 F.3d at 305 (quoting Atlas, 99 F.3d at 593). A
jury’s determination of compensatory damages is excessive and must be set aside if the verdict is
against the clear weight of the evidence or based on evidence which is false. See Sloane, 510

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F.3d at 502. The decision whether to order a new trial nisi remittitur is left to the sound
discretion of the trial court. Id.
Defendants cite Bennett v. Fairfax County, 432 F. Supp. 2d 596, 602 (E.D. Va. 2006), for
the principle that “the Fourth Circuit has found that verdicts, where compensatory damages were
not supported by medical evidence and that were over $100,000, were excessive.” Indeed, the
Fourth Circuit has often found such six-figure damages awards excessive. See Sloane, 510 F.3d
at 507 (finding a $245,000 award for emotional distress excessive and reducing damages to
$150,000 and granting a new trial nisi remittitur at plaintiff’s option); Cline, 144 F.3d at 306
(reducing an award of $117,500 to $10,000 and granting a new trial nisi remittitur); Hetzel v.
Cnty. of Prince William, 89 F.3d 169, 172 (4th Cir. 1996) (finding a $500,000 verdict
excessive).5 Although Defendants seem to imply that the Fourth Circuit has established a brightline rule that six-figure awards are excessive when a plaintiff has not presented medical
evidence, an analysis of the cases suggests that the inquiry is very fact-specific. “Although the
Fourth Circuit has ruled on a succession of cases . . . where the awards have been too high by
pointing to some factors that might be relevant to a court’s analysis, the Circuit has failed to
enumerate any specific formula to provide the districts courts more guidance.” Bennett, 432 F.
Supp. 2d at 606.
As a general rule, an award of “substantial compensatory damages must be proportional
to the actual injury incurred.” Hetzel, 89 F.3d at 173 (quoting Piver v. Pender Cnty. Bd. of
Educ., 835 F.2d 1076, 1082 (4th Cir. 1987)). While the Fourth Circuit has repeatedly
emphasized that a plaintiff’s testimony alone can, in theory, support a large damages award, see,
e.g., Price v. City of Charlotte, N.C., 93 F.3d 1241, 1256 (4th Cir. 1996), it has usually found

5

After rather protracted litigation, the award in Hetzel was eventually reduced to $15,000. See Hetzel v. Cnty. Of
Prince William, 188 F.3d 502 (4th Cir. 1999) (per curiam).

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that the evidence in a given case did not support the jury’s award. Moreover, although
compensatory damages for emotional distress can be based exclusively on a plaintiff’s
testimony, the plaintiff must “reasonably and sufficiently explain the circumstances of the injury
and not resort to mere conclusory statements.” Sloane, 510 F.3d at 503 (quoting Price, 93 F.3d
at 1256). In Knussman v. Maryland, 272 F.3d 625, 640 (4th Cir. 2001), the court stated:
In determining whether an award of damages for emotional distress for a
constitutional deprivation is excessive, an appellate court may look to a number of
factors: medical attention resulting from the emotional duress; psychiatric or
psychological treatment; the degree of such mental distress; the factual context in
which the emotional distress developed; evidence corroborating the testimony of
the plaintiff; the nexus between the conduct of the defendant and the emotional
distress; mitigating circumstances, if any; physical injuries suffered as a result of
emotional distress; and loss of income, if any.
Cf. Sloane, 510 F.3d at 503–04 (applying the Knussman factors in a context that did not involve
a deprivation of constitutional rights). Significantly, emotional distress associated with
litigation, as opposed to issues relating to the underlying complaint, is not compensable. See
Knussman, 272 F.3d at 642 (“Generally speaking, litigation-induced emotional distress is never a
compensable element of damages.”); Hetzel, 89 F.3d at 171 (stating, in the context of a plaintiff
who cried during trial, that “[q]uite obviously, a litigant’s demeanor while at counsel’s table is
not evidence to support a damage award”).
In Hetzel, 89 F.3d at 170, a jury found for the plaintiff on a retaliation claim against her
employer. The plaintiff testified that she suffered headaches, had trouble reading to her
daughter, and encountered problems with her family life after the retaliation took place, but she
nevertheless continued in her job and received a performance evaluation characterized by the
court as “nothing short of stellar.” Id. at 171. In deciding that the award was “outrageous,” the
court cited other cases with high awards and noted that they all “involved plaintiffs that either
were the victims of invidious discrimination, suffered serious—often permanent—physical
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injuries, or were discharged and had difficulty finding alternative employment.” Id. at 172. The
court distinguished larger awards in Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir.
1994), and Wulf v. City of Wichita, 883 F.2d 843, 874–75 (10th Cir. 1989), emphasizing that the
plaintiffs in those cases had been unlawfully terminated. See Hetzel, 89 F.3d at 172.
In Price, the court held that the plaintiffs “never offered evidence of any need for
medicine; physical symptoms; psychological disturbance or counseling; loss of income or
pecuniary expense; a description of their emotional distress; or how their conduct changed or if
others observed their conduct change.” 93 F.3d at 1255 (citations omitted). Similarly, the court
in Cline, 144 F.3d at 305–06, found that although the plaintiff “suffered some degree of
emotional trauma and anxiety,” there was no evidence that it persisted over time, interfered with
plaintiff’s ability to work or cope with a medical condition, that plaintiff required counseling or
medication, or that he suffered any physical symptoms of stress. By contrast, in Bryant v. Aiken
Regional Medical Centers Inc., 333 F.3d 536, 547 (4th Cir. 2003), the Fourth Circuit affirmed an
award of $50,000 in compensatory damages for emotional distress. At trial, the plaintiff in
Bryant “explained that she was ‘embarrassed, frustrated, and angry,’ ‘very disgusted,’ and that
she ‘didn’t feel very good about coming to work.’” Id. The court found that her testimony about
her physical ailments should not be discounted simply because she did not seek medical attention
and chose instead to address her problems through “prayer and faith.” Id.
The Fourth Circuit also conducted a detailed inquiry into the evidence supporting the
damages award in Sloane. 510 F.3d at 503–07. The court found it significant that the plaintiff
“offered considerable objective verification of her emotional distress, chronic anxiety, and
frustration.” Id. at 503. She also “offered ‘sufficiently articulated’ descriptions of her protracted
anxiety through detailed testimony of specific events and the humiliation and anger she

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experienced as a result of each occurrence,” as well as evidence that her distress was apparent to
others, including family members. Id. The court distinguished Hetzel, Price, and Cline, finding
that the plaintiffs’ distress in those cases did not persist over time or affect their abilities to do
their jobs. Id. at 504. Moreover, “the plaintiffs in th[o]se cases relied almost exclusively on
conclusory testimony.” Id. Despite the relatively substantial evidence, the court still found the
jury’s award was excessive, and remitted it to $150,000. Id. at 507.
After considering the Fourth Circuit’s decisions in this area (with the exception of
Sloane, which had not yet been decided), the district court in Bennett found that a jury award of
$540,000 in an employment discrimination case was excessive. 432 F. Supp. 2d at 604. After
remitting the damages award to Title VII’s statutory maximum of $300,000, the court further
remitted the award to $50,000. Id. at 605. The evidence in the case showed that after not
receiving a promotion, the plaintiff had to leave his job, and that “he suffered chronic headaches,
insomnia, and irritable stomach problems.” Id. at 606. In explaining its decision to reduce the
damages award, the court emphasized that the plaintiff did not seek medical treatment. Id.
Ultimately, the court found that the evidence supported an award of $50,000, an amount equal to
ten times the amount of back pay sought by the plaintiff. Id.
The results in these cases demonstrate that the jury’s award of $500,000 to Plaintiff in
this case is plainly excessive and must be remitted. The Fourth Circuit has clearly indicated that
past awards should serve as guidelines for the trial judge to consider when deciding whether to
grant a new trial nisi remittitur. See Hetzel, 89 F.3d at 173 (instructing the district court to
“closely examine the awards [in two other cases], which we believe are comparable to what
would be an appropriate award in this case.”). In Sloane and Hetzel, the Fourth Circuit
significantly reduced six-figure judgments, and the district court in Bennett did the same. As

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noted, Hetzel, Price, and Cline all ultimately resulted in awards no greater than $15,000, while
the district court in Bennett reduced the jury award to $50,000. Even in Sloane, 510 F.3d at 503,
where the plaintiff presented what the court called “considerable objective verification of her
emotional distress,” the court reduced the emotional distress award from $245,000 to $150,000.
Id. at 507. A comparison of these numbers alone suggest that the jury’s verdict in this case is
excessive.
Apart from the numbers, a court deciding whether a verdict is excessive must focus on
whether the award of damages is proportional to the injury suffered. The facts in this case are
not so dramatically egregious that an award more than three times the largest award approved by
the Fourth Circuit in similar types of cases would be appropriate. Although I cannot find that the
jury’s verdict was based on evidence which is false, I do find that the specific amount of
compensatory damages awarded was against the weight of the evidence. Plaintiff did not present
any medical evidence of his emotional distress, nor did he testify that he ever sought any medical
attention or psychiatric or psychological treatment. The only evidence relating to compensatory
damages presented to the jury by either side came from Plaintiff’s own testimony.
That being said, I conclude that the evidence Plaintiff did present supports a substantial
award of compensatory damages for emotional distress. In reaching this conclusion, I find it
helpful to use the Knussman factors as a guide to show what evidence of emotional distress
Plaintiff offered, and then to compare the evidence to that set forth in the cases discussed above.
Plaintiff presented substantial evidence to explain the factual context that gave rise to his
emotional distress and to demonstrate the nexus between his distress and Defendants’ conduct.
The ANKK1 Grant was the first NIH grant for which Plaintiff was the PI, and securing the grant
was indisputably a major personal and professional accomplishment for him. Trial Tr. 38:17–24,

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Oct. 10, 2012, ECF No. 107. Plaintiff presented evidence, and the jury found, that Defendants
retaliated against him for raising questions about the proper allocation of grant funds. This
retaliation took the form of the non-renewal of Plaintiff’s contract, which ended his academic
career at UVa and ultimately resulted in the failure of the ANKK1 Grant, causing significant
emotional distress to Plaintiff. See id. at 103:22–104:11. He also testified that the retaliation
damaged his ability to receive NIH grants in the future, id., which would greatly limit his career
options, a conclusion supported by the fact that he expended significant time and effort looking
for a new job but failed to receive any interviews. Id. at 91:17–22. The presentation of these
facts established a foundation for the jury, as the finder of fact, to conclude that Plaintiff suffered
substantial emotional distress.
In addition, Plaintiff presented evidence as to the specific kind and degree of the physical
and mental distress that he suffered. He testified that he lost fifty pounds and that his sleep
pattern was disrupted. Id. at 106:18–107:3. Defendants attempt to argue that Plaintiff did not
present any evidence on this point, but he testified as to facts of which he had personal
knowledge, and his testimony was unimpeached and uncontradicted by any evidence presented
by the Defendants.6 Plaintiff also sufficiently articulated the mental distress he suffered. He
testified that losing his position at UVa put strain on his marriage because his wife had to find a
job to support him. Id. at 92:4–6. These specific examples, considered in the broader context of
the termination of his position at UVa, the failure of the ANKK1 Grant, and the impact of the
retaliation on his career prospects and job search, provide a solid basis for a significant award of
compensatory damages.

6

As I noted at trial in response to Defendants’ objection to Plaintiff’s testimony regarding weight loss and loss of
sleep, Plaintiff was free to tell the jury the facts, and the jury as the finder of fact could decide whether Defendants’
retaliation caused the physical and mental distress he suffered. See Trial Tr. 106:7–13, Oct. 10, 2012, ECF No. 107.

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The only issue remaining is how to determine what amount of damages is appropriate and
proportional to the amount of harm suffered. In Sloane, 510 F.3d at 503, the defendant seeking
remittitur proposed a reduction in damages from $245,000 to $25,000, but admitted that it “could
offer no legal or factual basis for this amount, conceding that the number had been taken ‘out of
the air.’” The Fourth Circuit commented that “[n]ot only is such an unprincipled approach
intrinsically unsound, but it also directly contravenes the Seventh Amendment, which precludes
an appellate court from replacing an award of compensatory damages with one of the court’s
own choosing.” Id. Defendants in this case propose remitting the jury award to $10,000, but I
find that their proposed remittitur does not adequately compensate Plaintiff for the amount of
emotional distress he suffered.
As noted, the Fourth Circuit appears to favor a comparative approach whereby a court
deciding a motion for remittitur should look to the evidence presented and awards made in
similar cases.7 Plaintiff was discharged and has clearly had difficulty finding alternative
employment, a factor that the Hetzel court found could support a relatively large award of
damages. See 89 F.3d at 172. And like the plaintiffs in Meyers and Wulf, Plaintiff was
unlawfully terminated, a factor that the Fourth Circuit has indicated would support a larger
award. See id. Unlike the plaintiff in Price, Plaintiff offered evidence of physical symptoms,
loss of income, and how his conduct changed. And as the Fourth Circuit noted in Bryant, 333
F.3d at 547, a plaintiff’s testimony about physical ailments should not be discounted simply
because he did not seek medical attention. However, Plaintiff did not present the type of
objective verification presented by the plaintiff in Sloane. Using these cases as guideposts, and
having considered all of the evidence presented at trial, I conclude that the jury’s award should
7

The court in Bennett adopted a kind of hybrid approach, taking the plaintiff’s actual injury—$5,000 in back pay—
and multiplying it by 10 to reach a $50,000 award for emotional damages, which the court then compared to
amounts awarded in “similarly situated federal cases involving remittitur.” See Bennett, 432 F. Supp. 2d at 606–07.

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be remitted to $100,000. A $100,000 award of compensatory damages is not disproportionate to
the damages award for back pay, and would adequately compensate Plaintiff for the emotional
harm he suffered.
IV. Plaintiff’s Motion for an Award of Front Pay
Plaintiff has brought a claim against Dr. Li and Dr. Johnson in their official capacities for
prospective relief, and has moved for an award of front pay. Plaintiff contends that front pay is a
permitted form of equitable relief under the FCA and that an award of front pay is appropriate in
this case, since the parties agree that reinstatement does not appear to be a viable option.8
Plaintiff argues that the evidence presented at trial supports an award of $639,483 in front pay
damages.
Under the FCA, a wronged “employee, contractor, or agent shall be entitled to all relief
necessary to make that employee, contractor or agent whole . . . .” 31 U.S.C. § 3730(h)(1).
Though front pay is not an enumerated remedy under the FCA, courts have recognized front pay
as an available form of equitable relief under the statute. See Wilkins v. St. Louis Hous. Auth.,
198 F. Supp. 2d 1080, 1091 (E.D. Mo. 2001) (“While the FCA does not specifically include front
pay as a remedy available to the court to effect full compensation, the court concludes that
Congress intended that front pay be awarded in the appropriate case to effect the express
Congressional intention that a claimant under § 3730(h) be made whole.”) (internal citation
omitted), aff’d, 314 F.3d 927 (8th Cir. 2002); see also McKenna v. Senior Life Mgmt., Inc., 429
F. Supp. 2d 695, 699 n.5 (S.D.N.Y. 2006) (“Damages for emotional distress, as well as an award
for future earnings in place of reinstatement, have been permitted under the [FCA’s] statutory
provision for ‘special damages.’”) (citations omitted); Thompson v. Quorum Health Resources,

8

In his reply to Defendants’ brief opposing an award of front pay, Plaintiff stated that “all parties agree that
reinstatement is not practicable (indeed it is nearly impossible).”

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LLC, 485 F. App’x 783, 788, 2012 WL 2368871, at *5 (6th Cir. June 22, 2012) (noting
successful plaintiff’s award under FCA included back pay, front pay, and pain and suffering
damages).
In the Fourth Circuit, whether or not to award front pay is a matter for the court, sitting in
equity, to decide. See Duke v. Uniroyal Inc., 928 F.2d 1413, 1424 (4th Cir. 1991). As discussed
in Duke, front pay, as an equitable remedy, is typically used as an alternative or adjunct to
reinstatement: “While reinstatement, which is clearly an equitable remedy, is the much preferred
remedy, front pay may serve as a substitute or a complement.” Duke, 928 F.2d at 1424
(discussing front pay as an equitable remedy under the ADEA); see also Cline, 144 F.3d at 307
(FMLA case); Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 504 (4th Cir. 2001) (FMLA case).
In this case, while the parties now agree that reinstatement is not practicable (and perhaps
impossible), the potential alternative of front pay is barred by the Eleventh Amendment.9 The
Fourth Circuit has noted that “damages may be awarded against a defendant in his official
capacity only if they would be recoverable against the governmental entity itself.” Hughes v.
Blankenship, 672 F.2d 403, 406 (4th Cir. 1982) (citing Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978)). Dr. Li and Dr. Johnson are, in their official capacities, synonymous with UVa. See
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in
his or her official capacity is not a suit against the official but rather is a suit against the official’s
office.”) (citation omitted). And it is well established that UVa is a state instrumentality entitled
to Eleventh Amendment immunity. See, e.g., Tigrett, 97 F. Supp. 2d at 756 (citations omitted).

9

The Eleventh Amendment does not bar Plaintiff’s entire suit against the individual Defendants in their official
capacities, to the extent that Plaintiff also sought prospective injunctive relief in his amended complaint. See, e.g.,
Tigrett v. Rector and Visitors of the Univ. of Va., 97 F. Supp. 2d 752, 756 (W.D. Va. 2000); see also Quern v.
Jordan, 440 U.S. 332, 337 (1979); Ex parte Young, 209 U.S. 123 (1908).

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Thus, imposing a front pay award against these Defendants would impose an impermissible
monetary liability on the state.
To illustrate this point, in Campbell v. Arkansas Department of Correction, 155 F.3d 950
(8th Cir. 1998), the Eighth Circuit held that the Eleventh Amendment barred a successful § 1983
plaintiff from collecting front pay from state Department of Correction officials in their official
capacities. The court ruled that “[f]or purposes of the eleventh amendment . . . front pay is not
analogous to the prospective relief permitted under Ex parte Young because it ‘must be paid from
public funds in the state treasury.’” Campbell, 155 F.3d at 962 (quoting Edelman v. Jordan, 415
U.S. 651, 663 (1974)). Similarly, in Malkan, 2012 WL 4722688, at *8, which addressed a
wrongful termination case brought by a former professor against the dean and a faculty chair of a
public law school, the court held that “front pay is unavailable as an alternative to reinstatement
in an official-capacity suit against a state official where it will be paid from a state treasury.”10
Plaintiff’s allegations in this case target past conduct, and the front pay remedy he seeks
is not intended to halt a present or continuing violation of federal law. See Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 698 (3d Cir. 1996) (“[F]ront pay relief [under these circumstances]
would provide nothing more than compensatory damages which would be paid from the
Commonwealth’s coffers.”); see also Green v. Mansour, 474 U.S. 64, 68 (1985)
(“[C]ompensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh
Amendment.”). Because Plaintiff’s request for front pay against Defendants in their official

10

See also Freeman v. Mich. Dep’t of State, 808 F.2d 1174, 1179 (6th Cir. 1987) (“The plaintiff sought back pay,
front pay and fringe benefits, all of which are barred by the Eleventh Amendment . . . since any payment of these
claims would come from the state treasury.”). While the vulnerability of the state treasury has been recognized as
“the most salient factor in Eleventh Amendment determinations,” Hess v. Port Auth. Trans-Hudson Corp., 513 U.S.
30, 48 (1994), it is worth noting that in Regents of the University of California v. Doe, 519 U.S. 425 (1997), a
unanimous Court held that the fact that a judgment against a state university would be covered by the voluntary
indemnification agreement of a third party did not alter the Eleventh Amendment immunity enjoyed by the
university, because the state still bore the legal “risk of an adverse judgment.” 519 U.S. at 431.

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capacities is not the sort of prospective relief permitted under Ex parte Young, it is barred by the
Eleventh Amendment.
IV. Conclusion
For the foregoing reasons, I will deny Defendants’ motion for judgment as a matter of
law, grant Defendants’ motion for a new trial nisi remittitur, and deny Plaintiff’s motion for front
pay. The jury’s award of compensatory damages will be remitted to $100,000, and Plaintiff will
have the option of accepting the reduced award or proceeding to a new trial. An appropriate
order accompanies this memorandum opinion.
The Clerk of the Court is hereby directed to send a certified copy of this memorandum
opinion and the accompanying order to all counsel of record.

7th
Entered this ________ day of March, 2013.

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