CLAUDIA WILKEN, District Judge.
Defendant Judith Bjorndal
Plaintiff was formerly employed as a physician at the Sonoma County Development Center (SDC), a public hospital for patients with developmental disabilities. In this action, he alleges that Defendant terminated his employment at SDC in retaliation for engaging in protected free-speech activity, including: (1) filing a lawsuit alleging that he was terminated for speaking out about patient abuse and malpractice at SDC; (2) photographing patient injuries to document such abuse and malpractice; (3) filing a complaint with the California Department of Health Services (CDHS) alleging that photographs documenting patient injuries were being improperly removed from patient files; and (4) complaining to SDC Police Chief Ed Contreras.
The Court held a ten-day jury trial in November 2013. On November 18, 2013, the jury returned a verdict in favor of Plaintiff. Docket No. 403. Specifically, the jury found that Plaintiff's original lawsuit,
The clerk entered judgment against Defendant, Docket No. 410, and Defendant filed her motions for JMOL and new trial.
A motion for judgment as a matter of law after the verdict renews the moving party's prior Rule 50(a) motion for judgment as a matter of law at the close of all the evidence. Fed. R. Civ. P. 50(b). Judgment as a matter of law after the verdict may be granted only when the evidence and its inferences, construed in the light most favorable to the non-moving party, permits only one reasonable conclusion as to the verdict.
A new trial may be granted if the verdict is not supported by the evidence. There is no easily articulated formula for passing on such motions. Perhaps the best that can be said is that the Court should grant the motion "[i]f, having given full respect to the jury's findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed."
The Ninth Circuit has found that the existence of substantial evidence does not prevent the court from granting a new trial if the verdict is against the clear weight of the evidence.
Defendant moves for JMOL on the grounds that several of the jury's special verdict findings were made without sufficient evidentiary support in the record. In particular, Defendant contends that the following jury findings were not supported by the evidence: that Plaintiff's photography of SDC patient injuries fell outside the scope of his employment duties; that Plaintiff's lawsuit, CDHS complaint, and photography of patients were substantial or motivating factors in the decision to terminate his employment; and that Defendant would not have terminated Plaintiff's employment had he not engaged in protected activity. She also argues that, even if Plaintiff's photography was a substantial or motivating factor in her termination decision, she is entitled to qualified immunity for that decision. Each of these assertions is addressed briefly below.
In
This argument is not persuasive. Former SDC executive director Timothy Meeker expressly testified that, during the relevant time period, the hospital never had a policy that required physicians to photograph suspected patient abuse. Trial Tr. 423:17-424:10. This evidence is sufficient to support the jury's finding on this issue. Although Meeker also testified that SDC physicians were permitted to photograph patient injuries of unknown origin,
Defendant asserts that Plaintiff's photography of patients must have fallen within the scope of his employment responsibilities because he would not have been able to take those photographs if he were a member of the public and not employed by SDC. This argument is not supported by the case law. The Ninth Circuit has held that when a public employee reports misconduct by a superior or "speaks in direct contravention to his supervisor's orders, that speech may often fall outside of the speaker's professional duties."
Furthermore, the fact that Plaintiff only learned of the alleged misconduct by virtue of his employment at SDC and that members of the public would not have had the same access to SDC patients does not mean that his photography of patients necessarily fell within the scope of his employment. Numerous cases have recognized that a public employee's reports of misconduct may be protected by the First Amendment even if the employee learned of the misconduct by virtue of his or her specific employment position.
Defendant challenges the jury's findings that Plaintiff's lawsuit, CDHS complaint, and photography of patients were substantial or motivating factors in her decision to terminate his employment. Each of these findings is addressed separately below.
Defendant contends that the evidence presented at trial is not sufficient to show that she was even aware of Plaintiff's lawsuit prior to his termination. Thus, she contends, Plaintiff's lawsuit could not have been a substantial or motivating factor in her decision to terminate his employment.
The only direct evidence in the trial record that Defendant knew of Plaintiff's lawsuit is a letter which Plaintiff allegedly wrote to her in November 2000. Plaintiff testified that he drafted the letter in response to a memo Defendant had written in October 2000 and that he personally delivered the letter to Defendant in her office. Trial Tr. 845:12-:22. According to Plaintiff, the letter contained information about the lawsuit he had previously filed against Defendant's friends and superiors at SDC.
While Defendant attacks the credibility of Plaintiff's testimony and the authenticity of the hand-written draft of the letter that he produced, she has not shown that no reasonable jury would credit Plaintiff's testimony and evidence. Nor has she shown that the elapsed time between Plaintiff's delivery of this letter and Defendant's adverse employment action — about eight months — was so long as to preclude an inference of retaliatory motive.
Moreover, as the Ninth Circuit explained when reversing this Court's exclusion of SDC Police Chief Ed Contreras's testimony from an earlier trial in this case,
Accordingly, Plaintiff's evidence is sufficient to support the jury's finding on this issue.
Defendant contends that the trial record lacks sufficient evidence to show that she knew of Plaintiff's CDHS complaint against SDC before Plaintiff's employment was terminated. She argues that she had no way of knowing that he had filed such a complaint because he never mentioned that he had done so and because CDHS protects the identity of its complainants.
Plaintiff contends that Defendant knew he filed a CDHS complaint against SDC, citing evidence that Defendant met with him less than a week after CDHS validated his complaint to discuss the subject matter of the complaint — specifically, his practice of photographing certain patient injuries.
Construed in a light favorable to Plaintiff, this evidence is sufficient to support an inference that Defendant knew Plaintiff filed the CDHS complaint and sought to take adverse action against him in retaliation. As the Ninth Circuit explained after considering this same evidence in an appeal from a summary judgment order in this case,
Defendant contends that Plaintiff's photography of patients was not a substantial or motivating factor in her decision to terminate his employment. She concedes that she failed to challenge this finding in her pre-verdict Rule 50(a) motion for JMOL. Accordingly, this finding may only be reviewed for plain error.
Here, Plaintiff presented evidence to support the jury's finding that Defendant's termination decision was motivated at least in part by his photography. Specifically, Plaintiff testified that he and Defendant had a meeting in which she specifically told him to stop taking photographs. Trial Tr. 606:2-:12. He also solicited testimony from Defendant that she knew about the photographs, asked him to stop taking further photographs, and "was afraid that [] other administrators were going to make a big deal about what I assumed was one of my physicians taking photographs [without patient consent]." Trial Tr. 981:25-982:18, 1037:15-:18, 1038:3-:12. Although this evidence is circumstantial, it is nevertheless sufficient to support the jury's finding, particularly under the plain error standard.
Defendant contends that the evidence presented at trial supported her affirmative defense that she would have terminated Plaintiff's employment regardless of whether or not he engaged in protected activity. Because she acknowledges that she failed to raise this argument in her pre-verdict Rule 50(a) motion, the Court may only review the jury's finding on this issue for plain error. Once again, this standard is "`extraordinarily deferential.'"
"Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was `clearly established' at the time of the challenged conduct."
Plaintiff does not assert that Defendant violated his right to photograph SDC patients without their consent; rather, as noted above, he asserts that she violated his right to document patient abuse and malpractice at a public hospital. This right is clearly established under existing case law.
Furthermore, regardless of whether or not Defendant actually believed that Plaintiff was photographing patients unjustifiably without their consent, the Court cannot assume, in light of the evidence presented at trial, she would have terminated his employment for this reason alone. As previously discussed, Plaintiff offered sufficient evidence to support a finding that he was terminated specifically for photographing patient abuse and malpractice and not merely for photographing patients without their consent. Thus, Defendant is not entitled to qualified immunity on this claim.
Defendant moves for a new trial on the following grounds: the jury's special verdict findings were against the clear weight of the evidence; Defendant was prejudiced by the Court's refusal to instruct or allow questioning based on the term "professional responsibilities"; the admission of certain purportedly inflammatory and prejudicial evidence; Plaintiff's distortion of damages evidence regarding his post-termination work experience; the jury's purportedly excessive damages award; the Court's questions of Defendant; and the admission of irrelevant evidence regarding a hospital patient Plaintiff treated. Each of these grounds is addressed below.
Defendant's arguments that the jury's findings are against the clear weight of the evidence fail for the same reasons her motion for JMOL fails. Although the standard under Rule 59 is slightly different from the standard under Rule 50(b), Plaintiff presented sufficient evidence — much of which is discussed above — to support the jury's verdict under either standard.
As noted above, the Supreme Court held in
Defendant contends that the Court erred by failing to add the term "professional responsibilities" to this instruction, as she requested on the first day of trial.
Although
Defendant contends that Plaintiff was permitted to introduce certain irrelevant and prejudicial evidence regarding his lawsuit and the alleged misconduct of several members of SDC's managerial staff other than Defendant. She asserts that this evidence was introduced in order to "create prejudice in the jury against SDC administrators by showing repeated, baseless investigations of [Plaintiff] and to create an atmosphere of impropriety, negligence, abuse and cover-up that would taint [Defendant] simply because she was also in management." Def.'s Mot. New Trial at 11.
Defendant cites various excerpts from the testimony of Meeker, Contreras and Jennifer Wear, another SDC administrator, as examples of inflammatory evidence. Although much of this testimony involved incidents of misconduct in which Defendant herself never participated, these incidents were nevertheless relevant to Plaintiff's underlying retaliation claim because he complained about them to other SDC staff members or police. As such, the testimony about these incidents was relevant to show that Plaintiff had a reputation among SDC managers as a whistleblower at SDC. The Ninth Circuit previously held that this type of reputational evidence in this case was relevant.
What's more, the Court took steps to limit whatever prejudicial effects this testimony might have. For instance, when Meeker was testifying about the incident involving the rape of an SDC patient — an event for which Plaintiff filed the incident report — the Court repeatedly cautioned Plaintiff's counsel not to discuss events that did not directly involve Plaintiff. Trial Tr. 352:23-256:3. In fact, the Court specifically ended this line of questioning once it began to touch on subjects unrelated to Plaintiff's reporting of the incident.
Plaintiff also notes that Defendant failed to object to much of this testimony at trial. While this failure does not, as Plaintiff argues,
Accordingly, in light of the probative value of the challenged evidence, the Court's efforts to minimize whatever prejudice it might cause, and Defendant's failure to object to some of it at trial, Defendant is not entitled to a new trial on this ground.
Defendant argues that she was prejudiced by the testimony of Plaintiff and his wife regarding his post-termination emotional distress and the exclusion of other evidence regarding his subsequent termination from another job. Specifically, she argues that Plaintiff's testimony was misleading because he stated that he was terminated because he took time off to care for his wife following surgery. Defendant argues that she should have been permitted to present testimony from Plaintiff's supervisor, indicating that he was terminated because he prescribed narcotic medication for one patient but gave it to another patient. Defendant further argues that the testimony of Plaintiff's wife was misleading because it failed to distinguish between the emotional distress caused by Plaintiff's termination from SDC and the emotional distress he suffered as a result of his termination from another position six years later.
However, the Court excluded the testimony of the supervisor after Plaintiff offered to limit his damages for emotional distress to those incurred prior to January 1, 2007. Based on Plaintiff's agreement to do so, the Court found that testimony from the supervisor would be more prejudicial than probative. Moreover, the Court instructed the jury that it could only consider damages for emotional distress suffered from March 5, 2001 until January 1, 2007. The jury awarded approximately sixty percent of the emotional distress damages Plaintiff requested.
The Court further notes that Defendant's counsel stated that, if Plaintiff would stipulate that he was terminated and that damages for emotional distress would be cut off as of the date of his termination, "we don't need this witness," referring to the supervisor. Trial Tr. 1049:1-6. Moreover, Defendant asked the Court to strike Plaintiff's testimony regarding the reason for his 2007 termination if it was going to exclude the testimony of the former supervisor. The Court agreed to do so "but in a more neutral way" by instructing the jury that it "shouldn't take into account any events that occurred after 2007" and advised that Defendant's counsel could write the instruction.
Defendant contends that the jury's economic damage award is not supported by the evidence because it does not properly account for Plaintiff's failure to mitigate his losses after his employment at SDC was terminated.
"Reasonable jurors need not accept the views of one side's expert or the other's, but may make their own reasonable judgment on the evidence, accepting part, all, or none of any witness's testimony."
As Plaintiff points out, the jury awarded him the exact amount of economic damages that his expert testified he should receive.
Defendant testified that she met with Plaintiff for the first time on October 25, 2000, shortly after she arrived at SDC. She said that at the meeting she told Plaintiff that she "didn't want to be concerned about any events. I didn't even want to hear about them. I didn't know about them. I don't want to hear about them, any events before I was there." Trial Tr. 978:4-:7. Pressing her to explain the conversation, the Court told her that it seemed "sort of odd ... doesn't seem to be a normal thing that you would say to somebody when you first met them ... It sort of says, What past events?"
The Court's inquiry of Defendant does not provide grounds for granting a new trial. The Court's questions were intended to clarify Defendant's testimony and were similar to clarifying questions that the Court asked other witnesses, including Plaintiff's witnesses.
Defendant asserts that she was prejudiced by the admission of a Psychiatric Consultation Report (entered into evidence as Exhibit 22), a Nursing Admission Note (Exhibit 24), and a Discharge Note (Exhibit 27) regarding Elizabeth R., the patient for whom Plaintiff issued the DNR order in March 2001. Defendant argues that this evidence was both irrelevant and prejudicial because it suggested that Elizabeth R. lacked the capacity to give informed consent for CPR.
Elizabeth R.'s capacity to give informed consent to CPR was directly relevant to Defendant's affirmative defense. Defendant argued that Plaintiff's employment would have been terminated based on his treatment of Elizabeth R., regardless of whether he engaged in any protected activity. This defense placed in issue Elizabeth R.'s capacity to object to Plaintiff's decision to issue a DNR order.
Furthermore, the exhibits Defendant challenges focused on the capacity of an SDC patient to give informed consent to certain procedures; they did not discuss the conduct or competence of any SDC administrators. As such, these exhibits were not unduly prejudicial towards Defendant. Given the probative value of this evidence and its limited potential for prejudicing the jury against Defendant, the Court did not err in admitting this evidence at trial.
For the reasons set forth above, the Court DENIES Defendant's motion for JMOL (Docket No. 414) and motion for new trial (Docket No. 416).
