Opinion
No. C96-4116-MWB.
February 5, 1999.
ORDER REGARDING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR, ALTERNATIVELY, MOTION FOR NEW TRIAL
"Hope springs eternal in the human breast. . . ." Alexander Pope, An Essay on Man, 1733. Demonstrating admirable tenacity, perhaps of the sort envisioned by Alexander Pope, the defendant employer comes again to the court — this time following the denial of its summary judgment motion and the entry of an adverse jury verdict — and requests judgment as a matter of law on all of the plaintiff's claims. Alternatively, the defendant seeks a new trial. To resolve these pending motions, the defendant asks the court to review, inter alia, the sufficiency of the evidence supporting the jury's finding of liability, the propriety of admitting a videotape, and the amount of the punitive damages awards.
I. INTRODUCTION AND BACKGROUND
This post-trial order follows the return of a jury verdict on November 17, 1998, for plaintiff Kerry D. Ogden ("Ogden") on her claims of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. The jury found in favor of Ogden on her claims of a hostile work environment, quid pro quo harassment, and retaliation, and further found that Ogden was constructively discharged from her employment with defendant Wax Works, Inc. ("Wax Works"). The jury awarded Ogden $40,000.00 in compensatory damages, pre-termination back pay in the amount of $792.00, post-termination back pay in the amount of $75,599.00, and $500,000.00 in punitive damages. By Order dated December 8, 1998, the court granted Ogden's request for prospective equitable relief, and awarded her front pay in the amount of $69,768.00.
Pursuant to the statutory damage caps imposed by 42 U.S.C. § 1981a(3)(D), the court reduced the jury award of emotional distress and punitive damages to the sum of $300,000.00. Judgment for this amount — plus $76,391.00 in back pay damages and $69,768.00 in front pay damages — was entered in Ogden's behalf on December 8, 1998. See 42 U.S.C. § 1981a(3) (excluding back pay from the damages cap); Kramer v. Logan Cty. Sch. Dist., 157 F.3d 620, 626 (8th Cir. 1998) (holding that the statutory cap is inapplicable to the equitable award of front pay).
On December 21, 1998, Wax Works filed a comprehensive "Motion for Judgment as a Matter of Law or, Alternatively, for New Trial," pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure. Wax Works bases its motion for judgment as a matter of law on the following grounds: (1) that there is insufficient evidence to show that Ogden was subjected to a sexually hostile work environment; (2) that Wax Works is entitled to judgment as a matter of law on Ogden's claim for hostile work environment because the evidence showed not only that Wax Works exercised reasonable care to prevent and promptly correct any sexually harassing behavior, but also that Ogden failed to take advantage of any of these preventative or corrective opportunities; (3) that there is insufficient evidence to support Ogden's claims for retaliation, quid pro quo harassment, and constructive discharge; and (4) that the court erred in submitting Ogden's claim for punitive damages to the jury. As grounds for its motion for new trial, Wax Works asserts that (1) the verdict was based upon passion and prejudice; (2) the verdict awards were excessive and not supported by the evidence; and (3) the damage verdicts are inconsistent. In addition to these motions, Wax Works asks the court to reconsider Ogden's front pay award. Ogden has resisted the motions in their entirety.
The court heard oral arguments on the post-trial motions on January 28, 1999. Ogden was represented by Jay E. Denne of Munger Reinschmidt, Sioux City, Iowa. Wax Works was represented by Steven R. Jensen of Crary, Huff, Inkster, Hecht Sheehan, P.C., Sioux City, Iowa. With this procedural background in mind, the court turns to its consideration of the pending motions.
II. LEGAL ANALYSIS A. Motion For Judgment As A Matter Of Law 1. Applicable standards
50 provides, in pertinent part, as follows:
(a) Judgment as a Matter of Law.
(1) If during the trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before the submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.
(b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may:(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law; or
(2) if no verdict was returned;
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
Fed R. Civ. P. 50(a)-(b).
The United States Court of Appeals for the Eighth Circuit recently reiterated the standards to be applied by the district court — as well as the appellate court — in determining a motion for judgment as a matter of law:
When the motion seeks judgment on the ground of insufficiency of the evidence, the question is a legal one. Hathaway v. Runyon, 132 F.3d 1214, 1220 (8th Cir. 1997); Jarvis v. Sauer Sundstrand Co., 116 F.3d 321, 324 (8th Cir. 1997). A jury verdict must be affirmed "'unless, viewing the evidence in the light most favorable to the prevailing party, we conclude that a reasonable jury could have not found for that party.'" Stockmen's Livestock Mkt., Inc. [v. Norwest Bank of Sioux City], 135 F.3d 1236, 1240-41 (8th Cir. 1998) (quoting Chicago Title Ins. Co. v. Resolution Trust Corp., 53 F.3d 899, 904 (8th Cir. 1995)).Cross v. Cleaver, 142 F.3d 1059, 1066 (8th Cir. 1998). Thus, this standard requires the court to:
"[C]onsider the evidence in the light most favorable to the prevailing party, assume that the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party's evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence."Minneapolis Community Dev. Agency v. Lake Calhoun Assoc., 928 F.2d 299, 301 (8th Cir. 1991) (quoting Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 989 (8th Cir. 1989)); see also Stephens v. Johnson, 83 F.3d 198, 200 (8th Cir. 1996) (citing Whitnack v. Douglas County, 16 F.3d 954, 956 (8th Cir. 1994), in turn, quoting Hasting v. Boston Mut. Life Ins. Co., 975 F.2d 506, 509 (8th Cir. 1992)); Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir. 1996); Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796, 800 (8th Cir. 1994) (reiterating these factors, citing White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992); McAnally v. Gildersleeve, 16 F.3d 1493, 1500 (8th Cir. 1994) (same).
This standard for consideration of a motion for judgment as a matter of law accords the jury's verdict substantial deference. Tilson v. Forrest City Police Dep't, 28 F.3d 802, 806 (8th Cir. 1994), cert. denied, 514 U.S. 1004 (1995); McAnally, 16 F.3d at 1500. However, even with this deference to the jury's verdict, the jury cannot be accorded "the benefit of unreasonable inferences, or those 'at war with the undisputed facts,'" McAnally, 16 F.3d at 1500 (quoting City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F.2d 650, 651 (8th Cir. 1989), in turn, quoting Marcoux v. Van Wyk, 572 F.2d 651, 653 (8th Cir.), cert. dismissed, 439 U.S. 801 (1978)), but the court must still defer to the jury's resolution of conflicting testimony. Jackson v. Virginia, 443 U.S. 307, 326 (1979).
Having reviewed the applicable standards, the court turns to an examination of the claims raised in Wax Works' motion for judgment as a matter of law to determine whether post-trial relief from the jury's verdict against Wax Works is appropriate.
2. Sufficiency of the evidence claims — liability
Wax Works argues that the evidence produced at trial is insufficient to support a verdict in favor of Ogden on her claims for hostile work environment, retaliation, quid pro quo harassment, and constructive discharge. Prior to trial, the court engaged in an extensive discussion of the elements of each of these claims in its Memorandum Opinion and Order Regarding Defendant's Motion for Summary Judgment, 96-4116-MWB (N.D. Iowa Sept. 30, 1998). Rather than repeat that discussion in its entirety here, the court will turn directly to the perceived evidentiary inadequacies raised in Wax Works' post-trial motion.
Wax Works attacks the jury's finding of liability on Ogden's hostile work environment claim on two grounds. First, Wax Works contends that there is insufficient evidence to show that Ogden was subjected to unwelcome sexual harassment and that the harassment was so pervasive as to affect a term, condition, or privilege of employment. The court finds this argument unpersuasive. There was more than sufficient evidence presented at trial from which a reasonable jury could conclude that Ogden was subjected to unwelcome sexual harassment. For example, Ogden testified at length about incidences in which Robert Hudson made repeated unwelcome sexual advances and propositions to her. Ogden also described occasions when Hudson subjected her to what she considered to be offensive sexually suggestive touching. Likewise, sufficient evidence was presented at trial — largely through Ogden's testimony and that of her expert witness — from which a reasonable jury could conclude that this harassment affected a term, condition, or privilege of Ogden's employment. In addition to her testimony that Hudson refused to conduct her performance evaluation, Ogden testified that on several occasions, following her refusal of Hudson's unwanted advances, Hudson would yell at her or otherwise belittle her in front of her employees. She further testified that, as a result of Hudson's actions toward her, she suffered from depression, anxiety, and underwent significant weight loss. Ogden's expert witness, Kriemhild Oudhousden, also testified as to the deleterious effects Hudson's actions had on Ogden's confidence and self-esteem. Viewing the evidence in the light most favorable to Ogden, as it must in considering the pending motion for judgment as a matter of law, see Cross, 142 F.3d at 1066, the court concludes that sufficient evidence was presented at trial to support the jury's finding of liability on this claim.
Wax Works' second challenge to the hostile work environment claim is that it was entitled to judgment as a matter of law on its affirmative defense to this claim as that defense was established in Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). In Faragher and Ellerth, the United States Supreme Court announced the appropriate standards to be applied in determining whether an employer may be held liable for a supervisor's sexually harassing conduct in violation of Title VII. The Court set forth two methods for analyzing sexual harassment claims where, as here, the alleged discriminatory conduct was committed by the plaintiff's supervisor; one in which tangible adverse employment action resulted and the other where it did not. The court held in each decision that:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2292-93. Thus, where an employment action occurred with tangible results, an employer is liable once the discrimination is shown. Faragher, 118 S. Ct. at 2284 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 70-71 (1986)). Employer liability under these circumstances attaches "whether or not the employer knew, should have known, or approved of the supervisor's actions." Meritor Sav. Bank, 477 U.S. at 75. The Supreme Court further explained that "tangible employment action" includes a "discharge, demotion, or undesirable reassignment." Faragher, 118 S. Ct. at 2293 (citing Burlington, 118 S. Ct. at 2269). However, where no tangible adverse employment action is taken, "a defending employer may raise an affirmative defense to liability or damages. . . ." Faragher, 118 S. Ct. at 2293. The defense contains two elements: a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Id.
Although the court instructed the jury on this affirmative defense in Final Instruction No. 4, the record developed at trial reveals why judgment as a matter of law on this defense was, and continues to be, inappropriate. As an initial matter, it is not altogether clear whether Wax Works was even entitled to the instruction given Ogden's testimony that Hudson's refusal to conduct her employee evaluation — and the attendant withholding of her salary increase — amounted to a "tangible employment action." Alternatively, even if the Faragher-Ellerth affirmative defense is applicable in this case, Ogden testified that she notified Jeff Klem about Hudson's actions toward her and that no action was taken by Wax Works. Further, Ogden testified that she attempted to reach other Wax Works executives but they would not return her telephone calls. Although Wax Works presented evidence that Klem attempted to contact Ogden about her complaints but that Ogden made herself unavailable, the jury was not required to accept this version of events. Indeed, Ogden through her own testimony, presented a contrary version indicating that she was ill during Klem's visit to Sioux City and that when she attempted to contact him again, he refused to talk to her about her complaints. Under these circumstances, the court finds that a reasonable jury could conclude that Ogden did not unreasonably fail to take advantage of the preventive or corrective opportunities provided by Wax Works or to avoid harm otherwise. See Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2292-93.
Next, Wax Works challenges the sufficiency of the evidence supporting Ogden's claim for retaliation. Specifically, Wax Works contends that there is no evidentiary support for the finding that Wax Works took adverse employment action against her after she complained about Hudson's behavior or that any such action was causally related to Ogden's engagement in activity protected under Title VII. See Smith v. Riceland Foods, Inc., 151 F.3d 813, 818 (8th Cir. 1998) (listing elements of prima facie case for retaliation under Title VII). Again, the court is not persuaded.
Ogden testified at great length concerning her repeated protestations to Hudson about his sexually harassing conduct. She further testified that after she complained to Hudson about his behavior and otherwise refused his advances, he retaliated against her by refusing to conduct her performance evaluation and by refusing to give her a raise. Despite Wax Works' efforts to supply contradictory evidence, the jury credited Ogden's version of events in assessing liability on this claim. Because the court is required to defer to the jury's resolution of conflicting testimony, see Jackson, 443 U.S. at 326, Wax Works' request for judgment as a matter of law on this claim must also be denied.
Wax Works' remaining sufficiency of the evidence challenges are directed at Ogden's claims for quid pro quo harassment and constructive discharge. The court has reviewed the arguments of the parties and concludes that Wax Works' challenges to the jury's findings of liability on these claims are founded solely upon the jury's failure to credit Wax Works' version of events concerning the facts underlying these claims. As the court has previously observed, the jury's verdict in this case must be affirmed and Wax Works' motion for judgment as a matter of law be denied if a reasonable jury could differ as to the conclusions that could be drawn from the evidence. See Minneapolis Community Dev. Agency, 928 F.2d at 301. Applying this standard, the court finds that there is sufficient evidence in the trial record to support the jury's finding of liability on these two claims.
3. Sufficiency of the evidence — punitive damages
Wax Works also asserts that it is entitled to judgment as a matter of law on the two punitive damage awards made by the jury. In support of this assertion, Wax Works argues that there is insufficient evidence of malice or deliberate indifference necessary to sustain these awards. Additionally, with respect to the punitive damage award on the retaliation claim, Wax Works contends "[t]he evidence at trial shows that this retaliation claim is not against Wax Works, but rather it relates to the allegation that Hudson allegedly did not give her a raise for approximately two to three weeks prior to the time she quit her job." Memorandum of Law in Support of Motion for Judgment as a Matter of Law or, Alternatively, Motion for New Trial at p. 18.
Specifically, the jury awarded Ogden $300,000.00 in punitive damages on her hostile work environment claim and $200,000.00 in punitive damages on her retaliation claim.
Wax Works' argument that there is insufficient evidence to support the awards for punitive damages is unavailing. As discussed previously, Ogden testified at great length to the harassment she endured from Hudson, including repeated sexual advances, requests to accompany him to drinking and gambling establishments, and abusive or otherwise belittling conduct when she refused to acquiesce to his requests. Moreover, Ogden testified that Wax Works made only superficial inquiries into her complaints and then essentially ignored her version of events, attributing her difficulties with Hudson to a personality conflict. Although Wax Works presented contradictory evidence particularly regarding its attempts to investigate Ogden's complaints, the jury was not required to accept Wax Works' version of the events. Again, as with the challenges to the sufficiency of the evidence to support liability, the challenge to the sufficiency of the evidence supporting the punitive damage awards amounts to nothing more than disagreement with the jury's verdict. The court is constrained — under the applicable standards — to find that there is more than sufficient evidence in the record to support the punitive damage awards. As for Wax Works' argument that the retaliation claim was against Hudson and not Wax Works and therefore there is insufficient evidence to support an award of punitive damages on this claim against Wax Works, the court disagrees. In the first place, Wax Works waived this argument by failing to raise it in its original Rule 50 motion, in a renewed Rule 50 motion, or in its objections to the jury instructions. See Waitek v. Dalkon Shield Claimants Trust, 934 F. Supp. 1068, 1082 (N.D. Iowa 1996) (observing that the failure to lodge an objection or otherwise raise the issue precludes the court's consideration of the issue as a ground for judgment as a matter of law). Indeed, Wax Works failed to raise this argument at any time prior to its post-trial motion. In any event, there is more than sufficient evidence in the record to support the finding that Hudson was a supervisor for Wax Works with the authority to schedule and conduct performance evaluations and to recommend or effectuate employee raises. Such evidence is sufficient to invoke the principles of vicarious liability between a supervisory employee and the employer as set forth in Faragher, 118 S. Ct. at 2292-93, and Ellerth, 118 S. Ct. at 2270. Accordingly, the court finds that for purposes of punitive damages, Hudson's malicious or deliberately indifferent acts may be imputed to Wax Works. See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 593 (5th Cir. 1998) (observing that under the standard articulated in Faragher and Ellerth, "all that is required [to establish vicarious liability for malicious or recklessly indifferent acts] is that the employee be 'a supervisor with immediate (or successively higher) authority.' quoting Faragher, 118 S. Ct. at 2292-93 and Ellerth, 118 S. Ct. at 2270).
In sum, the court concludes that there is sufficient evidence in the trial record to support the jury's finding of liability on Ogden's claims for hostile work environment, retaliation, quid pro quo harassment, and constructive discharge. Likewise, the court finds that there is sufficient evidence in the record to sustain the awards for punitive damages on Ogden's hostile work environment and retaliation claims. Therefore, Wax Works' motion for judgment as a matter of law must be denied.
B. Motion For New Trial 1. Applicable standards .
Federal Rule of Civil Procedure 59, entitled "New Trials; Amendment of Judgments," states, in relevant part, as follows:
(a) GROUNDS. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts in the United States. . . .
Fed.R.Civ.P. 59(a). Regarding motions for new trial under Federal Rule of Civil Procedure 59, the court in White v. Pence, 961 F.2d 776 (8th Cir. 1992) observed:
With respect to motions for new trial on the question of whether the verdict is against the weight of the evidence, we have stated: "In determining whether a verdict is against the weight of the evidence, the trial court can rely on its own reading of the evidence — it can 'weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain a verdict.'" Ryan v. McDonough Power Equip., 734 F.2d 385, 387 (8th Cir. 1984) (citation omitted). Similar language appears in Brown, 755 F.2d at 671-73; Slatton [v. Martin K. Eby Constr. Co.], 506 F.2d [505], 508 n. 4 [(8th Cir. 1974), cert. denied, 421 U.S. 931 (1975)]; Bates [v. Hensley], 414 F.2d [1006], 1011 [(8th Cir. 1969)], and early authority cited in Bates. See also Leichihman v. Pickwick Int'l, 814 F.2d 1263, 1266 (8th Cir.), cert. denied, 484 U.S. 855 (1987). These cases establish the fundamental process or methodology to be applied by the district court in considering new trial motions and are in contrast to those procedures governing motions for j.n.o.v.Id. at 780. Thus, the court in Pence concluded the district court may grant a new trial on the basis that the verdict is against the weight of the evidence, if the first trial results in a miscarriage of justice. Id.; see also Shaffer v. Wilkes, 65 F.3d 115, 117 (8th Cir. 1995) (citing Pence for this standard); Nelson, 26 F.3d at 800 (stating "[a] motion for new trial should be granted if, after weighing the evidence, a district court concludes that the jury's verdict amounts to a miscarriage of justice."); Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1266 (8th Cir.) (observing that the correct standard for new trial is the conclusion that "the [jury's] verdict was against the 'great weight' of the evidence, so that granting a new trial would prevent a miscarriage of justice."), cert. denied, 513 U.S. 989 (1994).
2. Wax Works' grounds for new trial
Wax Works raises three grounds in support of its alternative motion for a new trial. First, Wax Works asserts that the court's admission of a videotape made in 1987 was error and caused the jury to reach a verdict that was incited by prejudice and passion. Next, Wax Works contends that the verdict reflects inconsistencies in the compensatory and punitive damage awards. Third, Wax Works complains that the punitive damage awards are unconstitutionally excessive. The court will address these arguments seriatim.
a. Admission of the videotape
Wax Works asserts that the court erred in admitting what it describes as "an 11-year old videotape" in Ogden's rebuttal testimony. Wax Works maintains that the admission of this videotape incited the jury against Wax Works, and resulted in a verdict based on passion and prejudice. See Memorandum of Law in Support of Motion for Judgment as a Matter of Law or, Alternatively, Motion for New Trial at p. 20.
In the court's view, this description is somewhat misleading. Although the videotape was produced eleven years before this case came on for trial, it was only seven or eight years old at the time the events giving rise to Ogden's claims occurred.
The videotape at issue depicts events which occurred during a Wax Works sponsored convention in 1987. Wax Works initially sought to exclude the videotape — as well as other evidence that offensive conduct and activities occurred at Wax Works' conventions — through a motion in limine. The court overruled the motion.
During trial, at least two witnesses — one from each party — testified as to certain events which occurred during one of the Wax Works' conventions. In her case in chief, Ogden testified extensively about lewd activities and "shows" that she observed during the 1987 Wax Works' convention. Eventually, Wax Works objected on the ground that "learning it's a big sex party is based upon hearsay. . . ." Real Time Transcript, Day 3, Ogden Direct. However, this objection came after the majority of Ogden's testimony regarding the convention had been received into evidence without objection. The court overruled this objection. In its case in chief, Wax Works elicited Dale Taylor's description of the events described by Ogden. Not surprisingly, Taylor's version differed substantially from Ogden's version.
In rebuttal, Ogden sought permission from the court to play the videotape of portions of the 1987 convention for the jury. Wax Works made the following objection at a sidebar conference:
It seems to me that he's already rebutted the testimony of Mr. Taylor at this time. He asked if she saw it and whether she felt [Taylor's] response was correct and accurate. To present the videotape at this time would be cumulative to what she's already rebutted and not proper rebuttal and certainly more prejudicial than probative under 403.
Real Time Transcript, Day 5, Ogden Rebuttal. The court is persuaded that by lodging an objection prior to the playing of the videotape, Wax Works has preserved error on this issue.
However, although it is not altogether clear whether Wax Works is also objecting to the testimony about the events depicted in the videotape, as well as the videotape itself, to the extent Wax Works challenges the admission of the testimony about the events, this objection has been waived. As a general rule, timely objection at trial is required to preserve an evidentiary question for appellate review, even if the evidentiary question was the subject of a pre-trial motion in limine. See Aerotronics, Inc. v. Pneumo Abex Corp., 62 F.3d 1053, 1066 (8th Cir. 1995) ("A motion in limine, by itself, is not sufficient to preserve an issue for appellate review."); Huff v. Heckendorn Mfg. Co., 991 F.2d 464, 466 (8th Cir. 1993). The reason for renewal of objections at trial in order to preserve error is "to give the district court the opportunity to reconsider the basis of the motion in light of the actual, as opposed to hypothetical, facts." Aerotronics, Inc., 62 F.3d at 1066 (noting that "[t]ypically, a motion in limine is used to determine the admissibility of evidence at trial; this type of ruling is based upon a hypothesis as to how the evidence will be presented"); Huff, 991 F.2d at 466 ("This rule is solidly based on principles of both logic and trial efficiency. The motion is based on a hypothesis as to how the evidence will be presented. Until the evidence is actually offered, the determinative facts as to its admissibility are not present.").
A timely objection at trial is required to preserve error even where the court overruled the objecting party's pre-trial motion in limine. See United States v. Whitted, 11 F.3d 782, 786 (8th Cir. 1993) (where the district court denied a motion in limine — "[f]or the time being . . . to be resubmitted [when the] matter is brought to my attention at the trial" — the defendant failed to preserve the issue for appeal by failing to object to the evidence at trial); Huff, 991 F.2d at 466 ("We agree that when a motion to exclude evidence is made in limine and is overruled, if the evidence is thereafter admitted at trial without objection, the error, if any, has not been preserved for review"; internal quotation marks and citations omitted). Without such an objection at trial, appellate (and hence post-trial) review is only for plain error. Dupre, 112 F.3d at 336-37; Kostelec, 64 F.3d at 1229; Mihm, 13 F.3d at 1204; Whitted, 11 F.3d at 786.
There is an exception to the rule of waiver "if the district court made a definitive pretrial ruling that affected the entire course of the trial." Aerotronics, Inc., 62 F.3d at 1066 (citing Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1118 (8th Cir. 1985), cert. denied, 475 U.S. 1046 (1986)); Huff, 991 F.2d at 467 (noting an exception where the objection would be "ritualistic" if the court and the other parties knew what action the losing party wished taken or what action that party actually opposed); but see Dupre, 112 F.3d at 336 (apparently rejecting such an exception, and requiring a timely objection at trial, even where the district court "unconditionally" granted a motion in limine, and the party objecting to the evidence on appeal asserted that under such circumstances the issue was preserved for appeal even absent an offer of proof). "The test to determine whether objections at trial are necessary to preserve error 'is whether an objection at trial would have been more in the nature of a formal exception or in the nature of a timely objection calling the court's attention to a matter it need[ed to] consider'" in light of the actual facts presented at trial. Aerotronics, Inc., 62 F.3d at 1066 (quoting Sprynczynatyk, 771 F.2d at 1118). In light of this test, the court concludes that a timely objection was required here. Unlike the statute of limitations question ruled upon on a motion in limine in Aerotronics, which was a ruling as a matter of law on which the actual presentation of facts at trial had no impact, Aerotronics, Inc., 62 F.2d at 1066-67, the evidentiary question here was impacted by the facts presented at trial. Indeed, the testimony at issue involved offensive conduct and activities that allegedly occurred during Wax Works' conventions.
It must be remembered that Wax Works posed only one belated general hearsay objection to Ogden's extensive testimony regarding the events at the 1987 convention. This objection was insufficient to preserve error on the issue of the admissibility of testimony concerning the activities at Wax Works' conventions. Wax Works then proceeded to introduce its own evidence regarding the events at that convention through the testimony of Dale Taylor.
The result of all this was, of course, conflicting testimony about what actually occurred. Under these circumstances, the videotape was not cumulative evidence. To the contrary, the videotape was probative further evidence of the witnesses' versions of the events. The jury was free to either credit or discredit the testimony of Ogden and Taylor as it deemed necessary after viewing the videotape.
Although Wax Works argues that the admission of the videotape was prejudicial, for the reasons stated above, the court finds that the videotape's probative value was not substantially outweighed by the danger of unfair prejudice. See Fed.R.Evid. 403. Therefore, finding no error in the videotape's admission, the court concludes that this ground for a new trial must be denied.
b. Inconsistencies in the damage awards
Wax Works also requests a new trial on the ground that the "verdict is inconsistent based upon the claims and the facts presented at trial." Memorandum of Law in Support of Motion for Judgment as a Matter of Law or, Alternatively, Motion for New Trial at pp. 22-23. It is not altogether clear whether Wax Works is challenging the sufficiency of the evidence supporting the claims for liability and damages, or the substance and format of the jury instructions and the verdict form.
To the extent Wax Works is challenging the sufficiency of the evidence on these claims, that challenge is rejected. The court is not persuaded that the verdict rendered in this case is against the weight of the evidence or otherwise reflects a miscarriage of justice. See Pence, 961 F.2d at 780.
Furthermore, to the extent Wax Works is arguing that the jury instructions and verdict form enabled the jury to award duplicative or otherwise inconsistent damages, the court finds that this argument has been waived. Prior to the court's submission of the final instructions to the jury, the parties were afforded a full opportunity to pose any objections they deemed necessary to the instructions and the verdict form. The only objections Wax Works made to the jury instructions and the verdict form concerned the sufficiency of the evidence to submit the claims for liability and punitive damages. Wax Works made no objection regarding the possibility for duplicative or inconsistent awards based on the substance or format of the instructions and verdict form. It is axiomatic that the failure to make a proper objection to a jury instruction constitutes a waiver of error. E.g., Campbell v. Vinjamuri, 19 F.3d 1274, 1277 (8th Cir. 1994); Arthur Young Co. v. Reves, 937 F.2d 1310, 1334 (8th Cir. 1991), cert. denied sub nom 502 U.S. 1092 (1992); Hicks v. Six Flags Over Mid-America, 821 F.2d 1311, 1315 (8th Cir. 1987); Thomas v. Booker, 784 F.2d 299, 304 (8th Cir.), cert. denied, 476 U.S. 117 (1986).
Even if this argument had not been waived, it would fail on the merits. This is so because the jury was carefully instructed not to award duplicative damages. For example, in Final Instruction No. 8, the jury was instructed as follows:
You must award the full amount for any item of damages that Ms. Ogden has proved, but a party cannot recover duplicate damages. In other words, do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage on the same claim. . . . You must award full damages for each item of damages on each claim you find Ms. Ogden has proved by the greater weight of the evidence.
Final Instruction No. 8. Further, the Verdict Form was specifically crafted to avoid the possibility of duplicative damages by providing spaces in which the jury could indicate what amount of damages, if any, it awarded on a specific claim. The Verdict Form also referenced the jury to Final Instruction No. 8 for guidance in completing the Verdict Form. This interplay between the Final Instructions and the Verdict Form assures the court that the possibility of duplicative damages was avoided in this case. See White v. Honeywell, Inc., 141 F.3d 1270, 1278 (8th Cir. 1998) (observing that jury is presumed to follow instructions including admonitions and limiting instructions).
Therefore, Wax Works' request for a new trial on this ground is also denied.
c. Excessiveness of the punitive damage awards
Wax Works also challenges as excessive the jury's award of punitive damages on Ogden's hostile work environment and retaliation claims. Primarily, Wax Works focuses on the fact that the amount awarded by the jury — $500,000.00 — is "five times greater that what the Plaintiff even suggested on closing argument [for these two claims]." Memorandum of Law in Support of Motion for Judgment as a Matter of Law or, Alternatively, Motion for New Trial at p. 24.
As Wax Works correctly points out, the district court is obligated to review punitive damage awards to determine whether they are constitutional. See Dean v. Olibas, 129 F.3d 1001, 1006 (8th Cir. 1997) (citing BMW of N. Am. v. Gore, 517 U.S. 559, 568 (1996)). The United States Court of Appeals for the Eighth Circuit has made the following observations regarding the review to be undertaken in assessing the potential excessiveness of a punitive damages award:
In Gore, the Supreme Court held that in determining whether a punitive damages award was so "grossly excessive," 517 U.S. at 562, 116 S. Ct. at 1592, as to violate federal due process rights, a court should consider "the degree of reprehensibility of the defendant's conduct," 517 U.S. at 575, 116 S. Ct. at 1599, the ratio of punitive damages to compensatory damages, 517 U.S. at 577-81, 116 S. Ct. at 1601-02, and "the civil or criminal penalties that could be imposed for comparable misconduct," 517 U.S. at 583, 116 S. Ct. at 1603.Grabinski v. Blue Springs Ford Sales, Inc., 136 F.3d 565, 571 (8th Cir. 1998). Applying these factors to the punitive damage awards in this case, the court concludes that the awards are not unconstitutionally excessive.
Although it fails to cite any authority in support of the proposition, Wax Works contends that the court is to consider the jury's award of $500,000.00 in punitive damages rather than the actual amount of punitive damages for which judgment was entered — $260,000.00 — pursuant to the statutory cap. While the court has serious doubts about this argument, the court need not resolve the question because neither figure would constitute an excessive award in this case.
In Gore, the Supreme Court emphasized the weight to be given to the degree of reprehensibility of the defendant's conduct in assessing whether a punitive damage award is unconstitutionally excessive, characterizing this factor as "[p]erhaps the most important indicium of the reasonableness [of the award]." Gore, 517 U.S. at 575. As indicated in the preceding sections of this order, there was more than sufficient evidence presented at trial to justify the submission of Ogden's punitive damages claims to the jury. After considering this evidence, the jury was entitled to find, inter alia, that Hudson repeatedly subjected Ogden to unwelcome sexual advances and abusive as well as belittling conduct. Further, the jury was entitled to find that Wax Works did not treat Ogden's complaints seriously or otherwise act to end the harassment. If the jury did in fact credit this evidence, which apparently it did in awarding punitive damages, the court finds that the reprehensibility of the defendant's conduct supports a conclusion that the punitive damages awards are reasonable and therefore not excessive.
The court has also considered the ratio of punitive damages to compensatory damages and finds that the ratio is within constitutionally acceptable limits. See Gore, 517 U.S. at 580-81. Finding no due process violation in the jury's punitive damages awards, the court concludes that Wax Works' request for new trial or remittur on this ground must be denied.
C. Challenge To The Award Of Front Pay
Finally, Wax Works challenges the court's award of front pay on the ground that Ogden has failed to mitigate her damages. Wax Works further asserts that even if a front pay award is appropriate, it should be subject to the damage caps set forth in 42 U.S.C. § 1981(a). The court fully considered these challenges — and rejected them — in its Memorandum Opinion and Order Regarding Plaintiff's Request for Front Pay in Ogden v. Wax Works, Inc., ___ F. Supp.2d ___, 1998 WL 886883 (N.D. Iowa Dec. 8, 1998). For the reasons set forth in that order, Wax Works' challenges to the front pay award here are denied.
III. CONCLUSION
A passage from a recent Second Circuit Court of Appeals decision, quoted in Ogden's resistance to the pending motions, lauds the use of the jury system in discrimination cases and is apropos here:
A federal judge is not in the best position to define the current sexual tenor of American cultures in their many manifestations. Such an effort, even were it successful, would produce questionable legal definitions for the workplace where recognition of employees' dignity might require standards higher than those of the street.Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998).
The court has considered each of the grounds raised in Wax Works' motion for judgment as a matter of law, and concludes that the motion must be denied. Specifically, the court finds that there is sufficient evidence to support both the jury's finding of liability and the jury's awards of punitive damages. Likewise, the court has considered the grounds raised by Wax Works in support of its motion for new trial, and finds that this motion must too be denied. The court finds that the admission of the videotape into evidence was not error. The court further finds that Wax Works has waived any objection it may have had with regard to the jury instructions or verdict form, and even if such objections had not been waived, they are without merit given the cautionary instructions provided to the jury. Finally, the court finds that the punitive damages award is not unconstitutionally excessive. Therefore, Wax Works' motions for judgment as a matter of law or, alternatively, new trial are denied.
IT IS SO ORDERED.