Opinion
No. CV02 0391512
May 16, 2006
MEMORANDUM OF DECISION PLAINTIFF'S POST-VERDICT MOTION FOR AWARD OF PUNITIVE DAMAGES
The plaintiff, William Rom, has moved for a post-verdict award of punitive damages in the above-captioned case. Rom, claimed that he was wrongfully suspended from school by Fairfield University in January 2002. At that time, the plaintiff was a student at Fairfield University and he was in his sophomore year. On or before February 1, 2002, Kimberly Nickolenko was the Director of Judicial Affairs at Fairfield University and Reagan Smith was a Resident Advisor. As a result of several incidents in October, November, and December 2001, allegedly involving the plaintiff, the plaintiff was summoned to appear before the Judicial Board at Fairfield University to face disciplinary proceedings involving these alleged incidents.
The first incident allegedly occurred on October 27, 2001, wherein Reagan Smith filed a complaint/incident report charging the plaintiff with entering the women's restroom in one of the residence halls. The second alleged incident occurred on Dec. 2, 2001, where Reagan Smith charged the plaintiff with tearing down posters and a door nametag in one of the residence halls. The third incident occurred on November 30, 2001 where the plaintiff was involved in a physical altercation with another student Shawn Schuerlein, which resulted in a further non-physical confrontation between the plaintiff and Shawn Schuerlein the following day.
The above-listed incidents were reported to Kimberly Nickolenko in her capacity as the Director of Judicial Affairs. As a result on Jan. 30, 2002, the plaintiff appeared at a hearing of the Judicial Board at Fairfield University to face disciplinary charges stemming from these three alleged incidents. Kimberly Nickolenko, the Director of Judicial Affairs played at that hearing, and Reagan Smith, testified against the plaintiff at the hearing before the Judicial Board.
As a result of the hearing before the Judicial Board, the Board found that the plaintiff was, in fact involved in each of these incidents and recommended his suspension from Fairfield University. Following a review of these recommendations by Dean Reed and a denial of the plaintiff's appeal by Fairfield University Vice-President William Schimpf, the plaintiff was suspended from Fairfield University.
The plaintiff in his complaint and at trial alleged that his suspension from Fairfield University was wrongful for one or more of the following reasons:
1. Under the procedures in place at the time of his hearing before the Judicial Board, the plaintiff was unable to compel the attendance of exculpatory witnesses;
2. The hearing officer failed to interview material exculpatory witnesses;
3. The hearing officer, after learning that material witnesses did not identify the plaintiff as a person involved in the aforementioned incidents, failed to inform the Judicial Board of this finding;
4. The Board was without sufficient evidence to find the plaintiff was involved in the aforementioned incidents;
5. The Board found that the plaintiff had violated the University policy of fighting, notwithstanding the fact that all evidence, including the statements of Shawn Scheurlein, indicated the plaintiff was attacked;
6. The Board failed to review all relevant documents and question all material witnesses in contravention of University policy; and
7. The hearing officer failed to advise the plaintiff of the names of exculpatory witnesses.
The plaintiff claimed money damages and punitive damages.
The plaintiff alleged that he was wrongfully suspended by Fairfield University, in part, due to false allegations that were made against him; the University's failure to conduct a reasonable interview of key witnesses; and the University's failure to provide a fair and reasonable judicial hearing and process, including, Nickolenko's intentional withholding of key information learned on the phone from key witnesses at the time of the hearing. These witnesses told Nickolenko that they were unable to identify Rom as the person involved in the incidents of October 27, 2001 and December 2, 2001. The plaintiff argued that these actions of the defendant University in suspending him were arbitrary, capricious and in bad faith and were a substantial departure from academic norms. Further the plaintiff argued that the defendant Fairfield University's decision to suspend him had no discernable rational basis.
As for economic damages, the plaintiff alleged a loss of wages in the amount of $28,500; health care insurance premiums totaling $1,998.77; and a partial loss of prepaid tuition payments in the amount of $6,086. The plaintiff also claimed non-economic damages for mental suffering and emotional distress.
The plaintiff also requested punitive/exemplary damages claiming that the wrong done to him by the defendant arose from either (1) hatred or ill will towards him; (2) from malice, that is some improper or unjustifiable motive or intent; or (3) that the defendant acted wantonly, that is, was aware or should have been aware, from its knowledge of the circumstances, that its conduct would naturally or probably harm the plaintiff. The court having heard the evidence presented to the jury subsequently charged the jury on the issue of punitive damages and submitted interrogatories to the jury including the jury's determination as to the question of punitive/exemplary damages.
The court charged the jury on the issue of punitive/exemplary damages as follows:
In addition to the categories of economic and non-economic damages, which I have just explained, which compensate the plaintiff for his injury and losses, the plaintiff claims additional damages which we call punitive or exemplary damages. In order to recover punitive/exemplary damages, the plaintiff must prove more than an invasion of his rights; he must prove that the wrong done to him arose from hatred or ill will towards him, or from malice, that is some improper or unjustifiable motive or intent; or that the defendant acted wantonly, that is, was aware or should have been aware, from its knowledge of the circumstances, that its conduct would naturally or probably harm the plaintiff.
If the plaintiff has proven to you that the conduct of the defendant had any one of these characteristics, then he is entitled to punitive damages. You need not decide how much damages is appropriate; you need only decide whether plaintiff has proven, by a fair preponderance of the evidence, that he is entitled to punitive damages. The issue as to the amount of punitive damages, if awarded, is left to the Court, not the jury. You simply need to issue a finding on your forms whether you award punitive damages. Punitive damages in this action, if awarded by you will be the plaintiff's reasonable costs incurred in prosecuting this lawsuit, including his attorneys fees. Once again, this amount would be determined by the court if you in fact find that the plaintiff is entitled to be awarded punitive damages.
In making this decision, you should consider the underlying purpose of punitive damages. Punitive damages are awarded in the jury's discretion to punish a defendant for outrageous conduct or to deter him and others like him from performing similar conduct in the future. Thus, in deciding whether to award punitive damages should consider whether the defendant may be adequately punished by an award of actual damages only, or whether the conduct is so extreme and outrageous that actual damages are inadequate to punish the wrongful conduct. You should also consider whether actual damages standing alone are likely to deter or prevent the defendant from again performing any wrongful acts he or she may have performed, or whether punitive damages are necessary to provide deterrence. Finally you should consider whether punitive damages are likely to deter or prevent other persons from performing wrongful acts similar to those the defendants may have committed.
The evidence in this jury trial began on January 31, 2006, and was completed on February 3, 2006, when the jury returned a verdict in favor of the plaintiff in the total amount of $111,558.77. The jury awarded the sums of $36,584.77 economic damages and $75,000 non-economic damages. In response to interrogatories submitted to the jury, the jury indicated that it wished to award punitive/exemplary damages to the plaintiff, as against the defendant Fairfield University.
The decision in Alaimo v. Royer, 188 Conn. 36, 42-43, 448 A.2d 207 (1982) makes clear that punitive damages and exemplary damages are one and the same under Connecticut law. See Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 92, 881 A.2d 139 (2005); see also, Matthiessen v. Vanech, 266 Conn. 822, 826 n. 5, 836 A.2d 394 (2003) ("[punitive] damages also are known as `exemplary' damages"). "Under Connecticut common law, the term `punitive damages' refers to the expenses of bringing the legal action, including attorneys fees, less taxable costs." Catalina v. Nicolelli, 90 Conn.App. 219, 226, n. 2 876 A.2d 588 (2005) quoting, Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 517 n. 38, 656 A.2d 1009 (1995).
The plaintiff has filed a motion for a post-verdict award of punitive damages limited to the issue of attorneys fees and costs of litigation. Attached to the motion is an amended affidavit and a second amended affidavit of Matthew S. Hirsch, Esq., the plaintiff's trial counsel, itemizing his attorneys fee for his representation of the plaintiff from November 16, 2005 through February 17, 2006 at the hourly rate of $200 per hour. The itemization details the dates of service, the purpose of the entry, the length of time spent and the monetary charge for each entry. The total attorneys fee requested for Attorney Hirsch is $31,740.
By way of a separate affidavit, the plaintiff is also claiming an attorneys fee for his other legal counsel, Attorney Robert W. Finke. Attorney Finke's itemized billing statement indicates that he provided legal services to the plaintiff from March 1, 2002, through January 23, 2006. Attorney Finke's billing statement also itemizes his dates of service, types of services rendered, total charges for each date, and a billing rate of $200 per hour. Attorney Finke's services, as set forth in his bill and as represented in his sworn affidavit total $19,299.60. Additionally, the plaintiff claims the sum of $2,080.72 in costs for various court fees, marshal fees and deposition transcript fees. The plaintiff has, however, provided no documentation for these costs.
Punitive/Exemplary Damages
"[P]unitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . If awarded, they are restricted to cost of litigation less taxable costs of the action being tried . . . Further, for an award of punitive damages it is essential that evidence of the cost of the litigation of the case being tried must be offered . . . Vandersluis v. Weil, 176 Conn. 353, 358-59, 407 A.2d 982 (1978)."
"Limiting punitive damages to litigation expenses, including attorneys fees, fulfills the salutary purpose of fully compensating a victim for the harm inflicted on him while avoiding the potential for injustice which may result from the exercise of unfettered discretion by a jury" [internal quotation marks omitted] Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 92-93, 881 A.2d 139 (2005), quoting, Label Systems Corp. v. Ahgamohammadi, 270 Conn. 291, 335, 852 A.2d 703 (2004); see also, Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992) (common-law punitive damages "serve primarily to compensate the plaintiff for his injuries and, thus, are . . . limited to the plaintiff's litigation expenses less taxable costs"); Tedesco v. Maryland Casualty Co., 127 Conn. 533, 538, 18 A.2d 357 (1941) ("[u]nder our law the purpose of awarding so-called punitive damages is not to punish the defendant for his offense but to compensate the plaintiff for his injuries, and they cannot exceed the amount of the plaintiff's expenses of litigation less taxable costs.")
By permitting awards of punitive damages, but limiting such damages, a balance is struck as our rule provides for the payment of a victim's costs of litigation, which would be otherwise unavailable, while establishing a clear reference in arriving at the amount of the award. Our rule when viewed in light of the ever rising costs of litigation, also provides for some element of punishment and deterrence in addition to the compensation of the victim. MedValUSA Health Programs, Inc. v. Memberworks, Inc., 273 Conn. 634, 671-72, 872 A.2d 423 (2005). "Thus, in limiting punitive damage awards to the costs of litigation less taxable costs, our rule fulfills the salutary purpose of fully compensating a victim for the harm inflicted on him while avoiding the potential for injustice which may result from the exercise of unfettered discretion by a jury." Id.
Attorneys fees may be awarded as a component of punitive damages. However, "[t]o furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." (Citations omitted; internal quotation marks omitted.) Stohlts v. Gilkinson, 87 Conn.App. 634, 646, 867 A.2d 860 (2005), quoting Farrell v. Farrell, 36 Conn.App. 305, 311, 650 A.2d 608 (1994)." [T]o award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . If the evidence discloses that a defendant was recklessly indifferent to the rights of a plaintiff, an actual intention to do harm to the plaintiff is not necessary." (Citations omitted; internal quotation marks omitted.) Id. at 648. "Punitive damages do not need to be alleged explicitly in the complaint or included in the claims for relief as long as the pleadings give the defendant sufficient notice that he is being charged with aggravated conduct rather than mere negligence." Markey v. Santangelo, CT Page 9021 195 Conn. 76, 78-79, 485 A.2d 1305 (1985).
Findings and Award
The court finds that the jury had sufficient evidence that the actions of the defendant Fairfield University and its agents and employees Smith and Nickolenko showed a reckless indifference to the rights of William Rom or an intentional and wanton violation of those rights, and that their conduct would likely or probably cause harm to Rom. There was sufficient evidence that the University failed to conduct interviews of key witnesses and that information gained from witnesses by phone interviews while the hearing was in progress was intentionally withheld from the Judicial Board by Nickolenko. The evidence regarding the University's reasons for the suspension of Rom was sufficient for the jury to conclude that the actions of the defendant were arbitrary and capricious. The plaintiff's complaint and the pleadings were sufficiently explicit to inform the court and opposing counsel that punitive damages were being sought by the plaintiff.
The court finds that the submitted attorneys fees are reasonable. They are itemized and clearly set forth the basis for each submission. They are not excessive given the nature of the issues in this case, as well as, the length of the time period of representation of the plaintiff from March 1, 2002 to the present. The award of these attorneys fees serve to reimburse the plaintiff and to make him whole, as well as, to deter the defendant from similar actions in the future. Accordingly, the court awards the plaintiff the sum of $51,039.60 as punitive damages in this matter. This sum is in addition to the jury's award of $36,584.77 for economic damages and $75,000 for non-economic damages. Therefore, the total judgment including all of the above-listed categories of damages is $162,624.37.