$167 Million Employee Rights Verdict Awarded By Federal Jury in Sacramento

Ani Coupourian sued her employer, Catholic Healtcare West (now "Dignity Health"), for sexual harassment and retaliation.  The resulting $167 million verdict, obtained by Sacarmento Trial Lawyer Lawrance Bohm, is thought to be the biggest of its kind in the U.S.  The verdict included $125 million in punitive damages, an amount almost certain to be subject to reduction or reversal following an inevitable appeal.
  
Coupourian was a cardiac surgery  physician assistant who claimed she was repeatedly harassed by surgeons she assisted at Mercy General Hospital between 2006 and 2008.  She claimed the harassment was daily.  She also claimed the hospital allowed unsafe and unnecessary procedures, and had poor patient care standards. She submitted 18 written complaints about these conditions during her 2 years of employment.   She also claimed she was denied meal and rest periods.  The hospital fired Coupourian for the stated reason of not being a team player and for failing to respond while "on call" over the weekend.
  
Her attorney stated post verdict that the defense had always defended the case as if Coupourian were a "liar and a fraud."  The size of the punitive damages verdict suggests however that the jury perceived the defendant to the actual "liar and fraud." 
   
Some thoughts:  


1.  Federal court is not necessarily a hostile forum to try an employment law suit.


2.  Credibility counts as much as the evidence in a case, maybe more than the evidence, because the evidence is of no impact unless believed.


3.  This verdict reflects the jury's anger and disgust.


4.  Defense arrogance can be costly.


5.  Re punitive damages, be careful what you wish for.  The appeal has a good chance of success.  With $39 million in compensatory damages, and a benchmark constitutional range of "reason" between 2 to 4 times that amount, the verdict could be either sustained or cut in half. [The range varies by court decision, some cases allowing a factor as high as 9 times the compensatory damages].  The U.S. Supreme Court has held that a 10:1 ratio is almost certainly a violation of constitutional protections.  Wiki Summary.

6.  The large measure of compensatory damages suggests the jury expressed its anger by awarding a very liberal measure of emotional distress damages.  


7.  This verdict confirms the anecdotal data that when a defense attorney miscalculates the settlement value of a case, the jury verdict often exceeds the plaintiff's settlement offer by a much greater magnitude as compared to the Plaintiff's miscalculation and verdict that is less than the Defendant's offer.
  
8.  Yes, this verdict will be an incentive to try more cases by the employee bar, and an incentrive to settle more cases by the defense bar. 

9.  18 written complaints:  too much of a good thing?  As a plaintiff's attorney, I begin to wonder--was she hoping to get fired?  It would be interesting to hear the defense's argument in closing that she was a "liar and a fraud" (as her attorney characterized the defense.)


10.  Sacramento juries are not necessarily more liberal than those in the state at large.  Federal judges and trial procedures also tend to reign in grand staging and hyperbole.  This case may well demonstrate the power of the evidence and good lawyering despite the restraints.
  
[Attribution: This Article was derived from a report found at page 1 of the Los Angeles Daily Journal, March 2, 2012.]  

The Logic of Scarcity.

Here is the logic of scarcity: I hurt, therefore you should hurt too. If this is the prism by which I see the world, then I will allocate, measure, and divide according to the limitations I experience. If I am poor, I too will seek for you to be poor by my choices. In my scarcity mindset, that is only “fair” because I, that is, my ego, am the measure of what is available.

This is not abstract spirituality. This mindset plays out in jury verdicts during hard economic times when people either are unemployed or fear becoming unemployed. This “scarcity mindset” operates from the language of fear that “there is not enough.”

Now, the reality is that jurors are awarding less in damages during these difficult days. I admit that it is pure speculation on my part as to why. Any reputable social scientist would begin by asking the jurors themselves about their attitudes. Whatever the cause, my brethren in the trial bar are reporting a common trend: jurors are awarding less, and more often, awarding nothing.

The main arm of the plaintiff’s personal injury bar, the “Consumer Attorneys of California” [Note how that dirty phrase “personal injury attorney” is omitted by the name] reports that the number of personal injury cases filed has dropped 24 per cent in the last decade. Even so, trial lawyers are getting feedback from disgruntled jurors that they are more cynical, less compassionate, more withholding. Jamie Court, president of the Santa Monica based consumer rights group “Consumer Watchdog” states: “If you’re out of work and trying to find a job, why should someone who has been injured get money when you’re hurting too?”

A more systematic investigation is needed to draw reliable conclusions. Such inquiry would include some social psychology to interpret the results as well. But the reports of trial lawyers who are well known in Southern California, such as Browne Greene in Los Angeles, are that “It’s harder today for a plaintiff to get justice than it was before.” Mr. Greene also says it is harder to weed out cynical, angry jurors because the courts have reduced the time and scope of voir dire [jury selection].

The cynicism is aggravated by poorly selected cases, overreaching requests for damage awards, and delays in trial caused by overtaxed courts. People are just getting pissed off.

A good trial lawyer will feel passionately about his case, and that passion has to come through as sincerity in the presentation of the case. An excellent trial lawyer I know takes negative attitudes of jurors during voir dire, and uses them as springboards to explore why that negative attitude should not operate in his particular case. I think recent juror feedback indicates too that careful preparation, efficient use of time when qualifying documents and witnesses as evidence, and a reputable demonstration of the actual harm done to a client, will aid the trial lawyer in getting past the scarcity mindset.

Yet, I am disturbed by the logic that states that I will have less if I award you more. If that is the explanation for recent reduced jury verdicts, it does not reflect well upon the community spirit.

[Quotes are taken from the Los Angeles Daily Journal, Vol. 123, No. 249, Mon. Dec. 27, 2010, page 1]

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link