United States District Court, W.D. Pennsylvania
October 7, 2005.
MARGARET SOBEK BARBISH and ALFRED BARBISH, husband and wife, Plaintiffs,
AMERICAN PROPERTY MANAGEMENT CORPORATION, AP/APH-PITTSBURGH, L.P., RADISSON HOTEL GREENTREE, FORMERLY GREENTREE MARRIOTT, Defendants.
The opinion of the court was delivered by: WILLIAM STANDISH, Senior District Judge
Pending before the Court is a motion for a new trial by
Plaintiff Margaret Barbish*fn1 (Docket No. 66). For the
reasons discussed below, Plaintiff's Motion is denied.
The facts giving rise to this case are well-known to the
parties and will not be reiterated in detail here. Briefly
stated, Margaret Barbish was employed as Director of Human
Resources for the Green Tree Marriott Hotel ("Marriott") at the
time the hotel was purchased by Defendant American Property Management Corporation ("APMC") in August 1999. As part of the
purchase agreement between APMC and Marriott's parent company,
Interstate Hotels Corporation ("Interstate"), the salaries of
hotel staff who were expected to continue with APMC (including
Ms. Barbish) were not to be increased between signing of the
purchase agreement and closing of the sale. Nevertheless, the
Marriott hotel manager increased Ms. Barbish's annual salary from
$72,582 to $76,211 the day before the transition took place.
Soon after the change in ownership, Marriott's new general
manager, Roland Sardaczuk, discovered the salary increase and
reduced Ms. Barbish's salary to the amount she received prior to
the sale. In September 1999, Ms. Barbish informed the hotel
payroll department that her salary check did not include the car
allowance she previously received from Interstate. Although she
did not submit any paperwork to support this claim, the payroll
office confirmed that she had indeed been receiving an annual
allowance of $7,440 and increased her paycheck accordingly.
Several months later, when Mr. Sardaczuk noticed that the human
resources department was over budget, he discovered the increase
in Ms. Barbish's salary as a result of the car allowance. He met
with her and told her that she would have to forego the
allowance; she protested that she was entitled to it because it
had been in place prior to the sale. The dispute was referred to
APMC managers at corporate headquarters who demanded that she return to her original salary of $72,582, give up the
car allowance, and repay $5,108, the amount she had been overpaid
after APMC acquired the hotel. When Ms. Barbish objected, APMC
management said they had "lost confidence in her" and asked for
her resignation. After a few days to consider, Plaintiff advised
APMC that she would not resign. Her employment was terminated
that day on the grounds that she had given herself an
unauthorized pay increase in the form of the car allowance.
Ms. Barbish filed suit, claiming that Defendants had violated
the Age Discrimination in Employment Act, 29, U.S.C. § 621 et
seq. (ADEA), the Pennsylvania Human Relations Act, 43 P.S. § 951
et seq. ("PHRA"), and the Pennsylvania Wage Payment and
Collection Law, 43 P.S. § 260.1 et seq. ("WPCL.") She also
brought common law claims of intentional infliction of emotional
distress and defamation. The latter claim was based on her
allegation that shortly after she was fired in April 2000, Mr.
Sardaczuk had told hotel staff she was let go because she was a
thief as shown by the fact she had given herself an unauthorized
Defendants moved for summary judgment on all claims. Plaintiff
failed to respond to their motion with respect to the WPCL and
intentional infliction of emotional distress claims, and
therefore the Court entered summary judgment in favor of
Defendants on those two counts without discussion. (Docket No. 34.) Summary judgment was denied with regard to Plaintiff's ADEA,
PHRA, and defamation claims and her husband's loss of consortium
On January 26, 2005, following a five-day trial, the jury
returned a verdict in favor of Plaintiff with regard to her
defamation claim only. As stated on the Special Verdict Form, the
jury affirmatively found
by a preponderance of the evidence that [Defendants']
employees . . . published defamatory statements to
third persons about plaintiff, . . . which statements
resulted in "actual harm" to plaintiff.
(Special Verdict Form, Docket No. 63, question 6.)
The jury awarded Ms. Barbish $14,000 as "damages directly
resulting from publication of defamatory statements about her."
(Special Verdict Form, question 7.) However, it did not find
Defendants' employees acted with "actual malice" in making those
derogatory statements and so did not award any punitive damages.
(Special Verdict Form, Docket No. 64, questions 1 and 2.)
On February 10, 2005, Plaintiff filed a Motion for a New Trial.
In her motion, Ms. Barbish raises three arguments: (1) the
damages awarded by the jury at trial are insufficient and/or
against the clear weight of the evidence; (2) the inadequate
award was the result of jury confusion or compromise; and (3) the
inadequate award resulted from improper argument of Defendants'
counsel at closing. She does not argue with the jury's decision
regarding punitive damages. We have considered each of Plaintiff's arguments in turn and find none of them persuasive.
II. STANDARD FOR GRANTING A MOTION FOR A NEW TRIAL
In pertinent part, Federal Rule of Civil Procedure 59(a)
A new trial may be granted to all or any of the
parties and on all or part of the issues 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 of the United
The Third Circuit has repeatedly held that motions for a new
trial arguing that the verdict is against the weight of the
evidence "are proper only when the record shows that the jury's
verdict resulted in a miscarriage of justice or where the
verdict, on the record, cries out to be overturned or shocks our
conscience." Grazier v. City of Phila., 328 F.3d 120, 128 (3d
Cir. 2003), quoting Williamson v. Conrail, 926 F.2d 1344,
1353 (3d Cir. 1991); see also Greenleaf v. Garlock, Inc.,
174 F.3d 352, 366 (3d Cir. 1999), and Sheridan v. E.I. Dupont de
Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996). This
"stringent standard" is established
to ensure that a district court does not substitute
its judgment of the facts and the credibility of the
witnesses for that of the jury. Such an action
effects a denigration of the jury system and to the
extent that new trials are granted the judge takes
over, if he does not usurp, the prime function of the
jury as the trier of facts.
Sheridan, id. (internal quotation omitted). The same "shocks our conscience" standard applies when
considering the adequacy of a jury's damages award. Tormenia v.
First Investors Realty Co., Inc., 251 F.3d 128
, 138 (3d Cir.
2000) ("The dispositive legal question is whether, given the
evidence presented, the jury's award was so irrational as to
shock the judicial conscience.") Granting a new trial because the
plaintiff claims the damages were insufficient is appropriate
only if damages awarded by the jury were an amount "substantially
less than was unquestionably proven by plaintiff's uncontradicted
and undisputed evidence." Semper v. Santos, 845 F.2d 1233
(3d Cir. 1988) (internal quotation omitted). "Damages assessed by
a jury are not to be set aside . . . unless the jury's award
indicates caprice or mistake or clear abuse of its fact-finding
discretion or the clear influence of partiality, corruption,
passion, prejudice, or a misconception of the law." Tann v.
Service Distributors, Inc., CA No. 70-1168, 1972 U.S. Dist.
LEXIS 11789, *11 (E.D. Pa. Sept. 29, 1972).
The decision to grant a new trial is "confided almost entirely"
to the discretion of the court. See Allied Chemical Corp. v.
Daiflon, Inc., 449 U.S. 33, 36 (1980); American Bearing Co. v.
Litton Industries, Inc., 729 F.2d 943, 948 (3d Cir. 1984),
cert. denied, 469 U.S. 854 (1984). In determining whether to
grant a motion for a new trial, a court is not compelled to view
the evidence in the light most favorable to the verdict winner. Bullen v. Chaffinch, 336 F. Supp.2d 342, 347 (D. Del. 2004).
The burden of proof on a motion for a new trial is on the movant.
Graves v. Women's Christian Alliance, CA 01-CV-5077, 2003 U.S.
Dist. LEXIS 12154, *4 (E.D. Pa. July 3, 2003).
III. LEGAL ANALYSIS
In moving for a new trial on damages, Plaintiff first argues
that the jury must have disregarded or misunderstood the Court's
instructions about how to calculate an award for damages.
(Memorandum of Law in Support of Plaintiffs' Motion for a New
Trial, Docket No. 68, "Plf.'s Memo," at 2-5.) The instruction
given to the jury stated:
If you find for Mrs. Sobek-Barbish on her claim for
defamation, she is entitled to be fairly and
adequately compensated for all harm she suffered as a
result of the false and defamatory communication
published by employees of the defendants. The
injuries for which you may compensate Mrs.
Sobek-Barbish by an award of damages include:
(1) the actual harm to Mrs. Sobek-Barbish's
reputation that you find resulted from the
defendants' employees' conduct;
(2) the emotional distress, mental anguish, and
humiliation that you find [Plaintiff] suffered as the
result of the defendants' employees' conduct, as well
as the bodily harm to Mrs. Sobek-Barbish that you
find was caused by such suffering; and
(3) any other special injuries that you find Mrs.
Sobek-Barbish suffered as a result of the defendants'
(Plf.'s Memo at 2-3, citing Jury Instructions at 26.) Plaintiff argues that at trial, Defendants were unable to rebut
credible testimony that she had suffered emotional distress,
mental anguish, humiliation and special injuries. She testified
that following Defendants' publication of defamatory statements
about her, she sought psychological counseling over the course of
two years for which she paid $14,000. This was the exact amount
the jury awarded her as damages. Plaintiff interprets the award
equal to the cost of her psychological counseling as "objective
proof that the jury found [she] endured mental distress and
anguish as a result of the Defendants' defamatory statements."
(Plf.'s Memo at 3.) However, the fact that the jury limited the
award to her counseling expenses without an additional amount for
the "actual harm" to her reputation and/or for her "actual and
appreciable mental distress" reflects the jury's disregard or
misunderstanding of the Court's instructions about how to assess
damages. The lack of compensation for these intangible losses is
therefore contrary to the weight of the evidence and "should not
be sanctioned." (Id. at 4.)
The instruction on defamation given by the Court without
objection stated that if the jury found Defendants had defamed
Ms. Barbish, she was entitled to "fair and adequate" compensation
for "all harm she suffered" as a result. The instructions direct
that the jury "may" compensate Plaintiff for (1) actual harm to her reputation, (2) emotional distress, mental anguish, and
humiliation that she suffered and any consequential bodily harm;
and (3) "any other special injuries that you find Mrs.
Sobek-Barbish suffered as a result of the defendants' employees'
act." Nothing in the instructions, and indeed, nothing in
Pennsylvania law,*fn2 requires that if the jury found Ms.
Barbish had been defamed, it was compelled to award damages for
all three of the delineated types of harm. Based on the word
"may," the jury was entitled to construe the instruction to award
damages for any of those categories as permissive rather than
mandatory. While we decline to second-guess the reasoning of the jury, it is not
inconceivable that the jurors concluded that the emotional
distress, mental anguish and humiliation suffered by Ms. Barbish
were fairly and adequately compensated by, in effect, requiring
Defendant to pay her psychological counseling bills.
Furthermore, the jury may not have been persuaded that Ms.
Barbish suffered actual harm to her reputation. She testified
that she felt her "reputation was ruined" when she learned about
Mr. Saduczak's remarks. (Brief for Defendants in Opposition to
Plaintiffs' Motion for New Trial, Docket No. 69, "Defs.' Brief,"
Exhibit C, Excerpt from Trial Transcript, January 12, 2005, at
79-80.) She recounted that in one conversation inquiring about a
job with Interstate, she felt the person with whom she spoke "had
probably heard about this and . . . so she wasn't interested in
speaking to me." (Id. at 82.) She presented no evidence that
she did not receive job interviews or her applications were
rejected because the defamatory statements had been disseminated
beyond the few hotel employees to whom Mr. Sardaczuk spoke.
To recover damages for emotional distress, a plaintiff must
show "a reasonable probability rather than a mere possibility"
that the distress arose from the events on which her claim is
based. See Spence v. Bd. of Ed., 806 F.2d 1198, 1201 (3d Cir.
1986). Ms. Barbish testified that immediately after she was fired
(that is, before she learned of Mr. Sardaczuk's comments), she had "never been so devastated, so shocked, so depressed."
(Defs.' Brief, Exh. C, at 78.) Thus, the jury may have believed
that some part of her emotional distress her profound
devastation, shock and depression arose from the loss of her
job, not only the defamation. When she learned about Mr.
Sardaczuk's remarks approximately one week later, she contacted a
family therapist. With his help, she was able to begin looking
for a new job, "maybe a couple weeks later." (Id. at 79-80.)
From this testimony, the jury may have concluded that although
she underwent psychological counseling for two years, her
emotional distress was not so severe that additional compensation
over and above payment for those services was necessary to
compensate her for "all the harm" she suffered from Defendant's
A jury is in the best position to determine credibility of
witnesses and is under no obligation to accept even undisputed
testimony it finds unconvincing. Semper, 845 F.2d at 1237. Had
the jury returned with an award substantially less than Ms.
Barbish's medical bills, it would be fair to assume it had failed
to follow the instruction for calculating damages, but that is
not the case here. As a result, we cannot find that the amount
awarded, although disappointing to Plaintiff, is so inadequate as
to shock the conscience or to reflect a miscarriage of justice.
Plaintiff's second argument is that the inadequate award is the product of jury confusion or "inappropriate compromise." That
is, at trial, Defendants disputed their liability for defamation
but did not offer evidence contradicting Mrs. Barbish's claims of
emotional distress and anguish. According to Plaintiff, the jury
could have arrived at an award exactly equal to her counseling
expenses only if it "improperly interwove the contested issue of
defendants' liability" into its damages calculation and thus,
"inappropriately tainted the damages award with elements of
compromise." (Plf.'s Memo at 5-7.)
A compromise verdict in a civil case is generally denoted by
the jury finding the defendant liable but awarding the plaintiff
damages grossly out of proportion to his proven losses. See,
for example, Lucas v. American Mfg. Co., 630 F.2d 291, 292-94
(5th Cir. 1980) (damages less than half of the plaintiff's
stipulated medical expenses and wage loss); Hatfield v. Seaboard
A.L.R. Co., 396 F.2d 721, 723-24 (5th Cir. 1968) (damages of
$1.00 awarded despite plaintiff's uncontested special damages of
almost $3,000); Pryer v. C.O. 3 Slavic, 251 F.3d 448 (3d Cir.
2000) (award of $1.00 "not easy to reconcile with uncontested
evidence of physical injuries.")
Relevant factors in determining whether a verdict is the result
of impermissible compromise include a grossly inadequate damages
award, a close question of liability, and an "odd chronology" of
jury deliberations. Carter v. Moore, 165 F.3d 1071, 1083 (7th Cir. 1998) (internal quotation omitted); see
also Pagan v. Shoney's, Inc., 931 F.2d 334, 339-40 (5th
Cir. 1991), adding to those already listed such factors as
evidence of the jury's confusion; how long it deliberated;
whether the jury requested additional instructions; and whether
the jury attempted to qualify its award in any way. An inadequate
or nominal damage award standing alone is not enough to show a
compromise verdict. Pryer, 251 F.3d at 462 (Mansmann, J.,
concurring in part and dissenting in part.)
We cannot conclude, as explained above, that the damages award
here was "grossly out of proportion" to the evidence of harm
presented by Plaintiff at trial. Nothing in the record indicates
that the jury was closely divided on the question of Defendants'
liability for any issue in the case, including the defamation.
See Diamond D. Enterprises USA, Inc. v. Steinsvaag,
979 F.2d 14, 17 (2d Cir. 1992), cert. denied, 508 U.S. 951 (1993),
identifying as evidence of a closely divided jury such things as
advising the court it was hopelessly deadlocked only to reach a
unanimous decision shortly thereafter; explicitly asking to
review testimony related only to liability; or deliberating
several days solely on the liability issue.
The jury here deliberated approximately three hours and fifteen
minutes on the question of liability on all Ms. Barbish's claims
before returning a verdict in favor of Plaintiff and the damage award for defamation. The following day, it heard argument
and received instruction on the question of "actual malice" which
would have entitled Plaintiff to punitive damages. The jury
deliberated less than an hour before returning a verdict
indicating it found no such malice. Only a single note was sent
out by the jury, requesting clarification of whether it had to
find that "one" or "all members" of Defendant's upper management
had defamed Ms. Barbish, but the verdict was returned before it
received a response to this question. Other than Plaintiff's
speculation, nothing in the record demonstrates or suggests a
compromise verdict, i.e., there is no evidence of a closely
divided jury, jury confusion about the law of defamation,
oddities in its deliberations, or unduly extended
Finally, Plaintiff argues that the inadequate award was the
result of improper statements made during Defendants' closing
argument. (Plf.'s Memo at 8-11.) Prior to trial, defense counsel
urged the Court to include in its charge to the jury an explanation of the defense of conditional privilege to the
defamation claim, pursuant to Restatement (2d) of Torts, §§ 593
and 594. The Court did not do so and the jury was not charged as
to this defense. However, during his closing argument, defense
You also recall the setting in which [Mr. Sardaczuk]
made those alleged comments was one in which rumors
concerning [Ms. Barbish's] termination were rampant
throughout the hotel. As . . . Mr. Engel testified,
there was a buzz going through the hotel as to those
reasons. It was in the context of this rumor mill
about [Plaintiff's] departure that Roland Sardaczuk
testified that in visiting with three or four
managers to bid them goodbye before his departure, . . .
he believes he told them that the reason Peg was
discharged was that she had given herself an
unauthorized pay increase.
The setting in which those comments were made is
important because under the law of defamation, an
employer may comment on the reason for an employee's
discharge if he has a legitimate reason in doing so
and he won't be liable for defamation.
Here, the buzz of rumors going around the hotel fully
justified what Mr. Sardaczuk told those three or four
(Plf.'s Memo at 8 and Exhibit A thereto, Trial Transcript of
January 26, 2005, at 26-27, emphasis in Memo.)
Plaintiff contends that this "justification" argument
"interposed the concept of conditional privilege into the jury's
evaluation of the libel action, despite the fact that the Court
refused to charge the jury on this defense." Although Plaintiff's
counsel immediately objected to these statements in a sidebar
conference, the Court did not provide a corrective instruction to the jurors that they should not rely on
"justification" as a defense to the defamation. Thus, "there is a
danger" that the jury relied on that argument, or that it
confused the "justification" defense with other defenses offered
by Defendants. Plaintiff concludes that "it is evident that the
jury inappropriately concluded that the concept of
`justification' provided at least a partial defense to the
defendants' liability for the defamatory statements," and that
this "mistaken conclusion" could have been a factor in the jury
failing to follow the Court's instructions on damages or reaching
a compromise verdict. (Plf.'s Memo at 10-11.)
When a motion for a new trial is based on allegedly improper
remarks made by counsel during argument, the court must determine
if the remarks were so prejudicial they affected the fairness of
the trial and thereby caused manifest injustice. Corbett v.
Borandi, 375 F.2d 265, 270 (3d Cir. 1967). A new trial may be
granted only where the improper remarks "made it reasonably
probable that the verdict was influenced by prejudicial
statements." Fineman v. Armstrong World Indus. Inc.,
980 F.2d 171, 207 (3d Cir. 1992) (internal citation omitted); see also
Greate Bay Hotel and Casino v. Tose, 34 F.3d 1227, 1236 (3d
Cir. 1994) (the court must find that it is "reasonably probable"
that the challenged conduct had a "significant influence" on the
jury's deliberations.) The court's conclusion as to the effect of the allegedly prejudicial statements is not to be based on
isolated statements taken out of context, but on a comprehensive
view of the entire trial. "Not all improper remarks will engender
sufficient prejudice to mandate the granting of a new trial."
Fineman, 980 F.2d at 207.
We need not dwell long on this issue. As Defendants point out,
the statements made by counsel in his closing argument accurately
reflect the law of Pennsylvania on the conditional privilege
defense and thus could not have misled the jury as to the law.
(Defs.' Brief at 9.) The quotation above appears to be the only
mention by counsel of this defense in his closing remarks.
Assuming the jurors understood from this brief mention that
conditional privilege is a defense to defamation, they certainly
were not persuaded by that argument, as can be seen from the fact
that they returned a verdict in favor of Plaintiff. As to the
argument that the jury mistakenly factored this partial defense
into its damages calculation, as discussed above, we cannot
conclude that the jury failed to follow the Court's instructions
on calculating damages or awarded damages of $14,000 as a
"compromise verdict." Plaintiff's Motion for a New Trial is denied. An appropriate
© 1992-2005 VersusLaw Inc.