The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court are post-trial motions made by both Plaintiff Jimmy Schlier and Defendants Captain John G. Rice and Lieutenant David Dougalas. These motions include Plaintiff's Motion to Confirm this Judgment entered in favor of Plaintiff on March 20, 2008, Motion for a New Trial on Punitive Damages and to Amend/Correct the Judgment entered in favor of Plaintiff on June 26, 2009 (Doc. 374), and Defendants' Motion for a New Trial or Remittitur (Doc. 375). For the reasons that follow, Plaintiff's Motion will be denied in part and granted in part. Defendants' Motion for a New Trial or Remittitur will be denied.
This Court has issued several Memoranda and Orders in this case and, therefore, will not belabor the factual issues underlying it. This Memorandum will give a brief overview of the facts. For a full factual outline, see this Court's November 14, 2008 Memorandum and Order. (Doc. 291.)
Plaintiff Jimmy A. Schlier is the owner, president and operator of Plaintiff Wreckers International Inc., d/b/a Schlier's Towing & Service Center ("Schlier's Towing"). (Decl. of Jimmy A. Schlier, Doc. 91 ¶ 1.) In 1976 or 1977, Schlier's business began performing towing services for the Pennsylvania State Police ("PSP") and until September 2002, Plaintiff's business was on the State Police's approved towing referral lists, whereby they regularly received requests from motorists and the State Police to tow vehicles that were broken down, involved in accidents, or impounded for criminal investigations; Plaintiff's business also regularly performed towing and repair services on State Police vehicles. (Pls.' Statement of Undisputed Material Facts, Doc. 90 ¶¶ 2, 5, 13 [hereinafter Pls.' Statement]; Defs.' Counterstatement of Undisputed Material Facts, Doc. 107 ¶¶ 2, 5, 13 [hereinafter Defs.' Counterstatement].)
In February 2001, the PSP adopted Field Regulation 6-2, which regulated the provision of emergency towing services. It provided troop commanders with authority to suspend towing operators from the referral lists for a number of reasons, including failure to maintain the regulation's standards; commission of an act involving dishonesty or corruption when it affects the health, welfare, or safety of others; overcharging for services, to be determined in conjunction with the fee schedule the operator submitted its application; or repeated conduct that tends to demean the public image of the Police. (Defs.' Statement of Undisputed Material Facts, Doc. 122 ¶¶ 3-4 [hereinafter Defs.' Statement]; Pls.' Counterstatement of Facts, Doc. 137 ¶¶ 3-4 [hereinafter Pls.' Counterstatement].)
In late 2001 or early 2002, disputes developed between Plaintiff Schlier and the PSP about billing. (See Pls.' Statement ¶ 15; Defs.' Counterstatement ¶ 15.) In response to a price that the Police thought exorbitant and a complaint filed against Schlier's Towing by another company, which led to an investigation into possible deceptive practices by Schlier's Towing, the PSP decided to no longer use Schlier's services exclusively but to seek out the best price each time towing services were needed. (See Defs.' Statement ¶¶ 12-18; Pls.' Counterstatement ¶¶ 12-18.)
On April 27, 2002, Plaintiff Schlier sent a formal complaint to the Director of the Division of Internal Affairs, which investigates reports of misconduct, alleging that the Swiftwater barracks had failed to pay bills and had improperly directed towing business to another towing operator owned by a convicted felon. (Pls.' Statement ¶¶ 18-21; Defs.' Counterstatement ¶¶ 18-21.)
On August 27, 2002, Rice informed Plaintiff that his company would be removed from all Troop N referral lists effective September 6, 2002. Rice informed Plaintiff that his decision was based on four factors: (1) Schlier's Towing failed to meet the requirement of charging reasonable and customary fees; (2) the company demeaned the image of the State Police by falsely communicating to another business that it had a contract with the Police and that the Police approved of its billing practices; (3) a complaint filed by that other company against Schlier's Towing resulted in a criminal investigation into deceptive or fraudulent business practices; and (4) Schlier's Towing submitted invoices to the Police totaling thirty-three thousand, three hundred twenty-five dollars and seventy-five cents ($33,325.75) but the State Police do not act as guarantor of the expenses that motorists may owe to emergency towing operators and the Police will not assume responsibility for the expenses. Finally, Rice informed Plaintiff that he could apply for reinstatement after six (6) months, contingent upon taking "appropriate remedial action so that [your business] will not conflict with the standards required by the Pennsylvania State Police." (Pls.' Statement ¶¶ 24-25; Defs.' Counterstatement ¶¶ 24-25.) The criminal investigation of Schlier's Towing ended September 26, 2002, after the district attorney declined prosecution. (Pls.' Statement ¶ 53; Defs.' Counterstatement ¶ 53.) In March 2003, Plaintiffs unsuccessfully applied for reinstatement to the Police referral lists. (Pls.' Statement ¶¶ 57-60, 62-64; Defs.' Counterstatement ¶¶ 57-60, 62-64.)
In March 2006, Plaintiffs sent a letter to Colonel Miller through counsel complaining that the PSP had removed them from the referral lists in retaliation for exercise of their First Amendment rights to petition the government for redress of grievances, namely, for submitting the invoices. In August of 2006, after Plaintiffs moved for a preliminary injunction ordering Colonel Miller and Major Rice to reinstate them to the towing referral lists, the parties agreed to a rate schedule and Plaintiffs were reinstated to the lists. (Pls.' Statement ¶¶ 70-75; Defs.' Counterstatement ¶¶ 70-75.)
Plaintiff filed his Complaint initiating this case on August 20, 2004. (Doc. 1.) Plaintiff filed an Amended Complaint (Doc 18), mooting Defendants' initial Motion to Dismiss (Doc. 13). In a Memorandum and Order dated October 9, 2007, this Court denied Plaintiffs' motion for partial summary judgment against Defendants Rice and Miller, dismissed Defendant Josie Sharp, denied Defendants' motion for summary judgment in favor of Defendants Rice, Miller and Douglas with respect to Plaintiffs' First Amendment claims, granted Defendants' motion for summary judgment in favor of Defendants McGuire, Transue and Robb with respect to Plaintiffs' First Amendment claims, and granted Defendants' motion for summary judgment with respect to Plaintiffs' Fourteenth Amendment due process claims. (Doc. 156.)
The remaining First Amendment retaliation claims against Defendants Rice, Miller, and Dougalas proceeded to trial on March 4, 2008. On March 20, 2008, after twelve (12) days of trial, the jury returned a verdict in favor of Plaintiffs, awarding Plaintiff Jimmy Schlier two million, two hundred fifty thousand dollars ($2,250,000) in compensatory damages and awarding the other plaintiff, Wreckers International, Inc., one million dollars ($1,000,000) in compensatory damages, and no punitive damages for either plaintiff. (Doc. 233.) This Court entered judgment accordingly. (Docs. 230, 231.)
Responding to several post-trial motions on November 14, 2008, this Court denied Plaintiffs' Motions for a New Trial, denied Defendants' Motion for Judgment as a Matter of Law, denied Defendants' Motion for a New Trial, granted Defendants' Motion for a Remittitur, and ordered Plaintiff Schlier to remit two million, one hundred thousand dollars ($2,100,000) and accept one hundred fifty thousand dollars ($150,000) or submit to a new trial on compensatory pain and suffering damages. (Doc. 291.) Plaintiff Schlier elected to have a new trial on damages. (Doc. 292.)
Plaintiffs filed a Motion for Reconsideration on November 24, 2008. (Doc. 293). In that Motion, Plaintiffs requested that the Court amend its November 14, 2008 Order and grant a new trial on punitive damages in addition to compensatory damages. On May 7, 2009, this Court issued a Memorandum and Order denying Plaintiff Schlier's Motion for Reconsideration. (Doc. 338.)
The second trial on the limited issue of compensatory damages began on June 22, 2009. At the outset of trial, Defendants' counsel expressed concern that the scope of the trial might improperly blur the line between compensatory damages from pain and suffering and punitive damages based on the Defendants' conduct, and sought to have a jury instruction that would inform the jury that punitive damages were not to be considered. (Second Trial Tr., Day 1 at 3, June 22, 2009.) At that point, the Court ruled that it would not instruct the jury on punitive damages at all because punitive damages were not an issue in the second trial. (Second Trial Tr., Day 1 at 7, June 22, 2009.)
At the second trial, Mr. Schlier testified that he was very scared by the threats of criminal prosecution that were made against him. (Second Trial Tr., Day 1 at 122, June 22, 2009.) He also testified that he felt frustrated, embarrassed and demeaned and that being removed from the towing list lowered his self-esteem. (Id. at 124.) Schlier further testified that he was regularly questioned by people in the community, which was also embarrassing. (Id. at 174.) He also was forced to sell a rotator that he had acquired for the work that he did for the state police, which he described as "devastating." (Id. at 178.) He also testified that he considered the state troopers to be his colleagues and friends, and that many of these friendships were damaged by the Defendants' actions. (Id. at 128.) Schlier also described himself as being "angry," (Second Trial Tr., Day 2 at 3, June 23, 2009), humiliated, (id. at 4), anxious, (id. at 34), and outraged (id. at 37).
Mr. Schlier said that the anxiety about paying his bills and employees led to many "sleepless nights." (Id. at 37.) As a result of the lost business from the state police, Mr. Schlier was forced to work an extra twenty (20) hours per week, which took time away from his family. (Id. at 39.) Mr. Schlier testified that he "stress eats" when he is anxious or nervous, and that he stress ate when he was removed from the towing list, despite the potentially detrimental effects on his medical conditions such as high cholesterol and hypertension. (Id. at 39-43.) He also testified that he stopped having regular visits to his primary care physician, who he had been seeing every three months to monitor his on- going health issues, because he was too preoccupied by the circumstances surrounding his removal from the towing list. (Id. at 44-45S.) Mr. Schlier also stated that he suffered from headaches and was tense and irritable during the period that he was off the towing list. (Id. at 45.)
On cross examination, Mr. Schlier was asked whether he received any psychiatric or psychological treatment for his anxiety and other emotional harm; he replied that he had not seen a psychiatrist because he did not have confidence in the psychiatric field after his first wife had committed suicide despite being treated by a psychiatrist for post-partum depression. (Id. at 54, 62.) He also testified on cross examination that he took sleeping pills that were prescribed by his primary care physician, Dr. Carbone, during the time he was off the towing list. (Id. at 54-55.)
Jeffrey Wittkop testified that he considered Mr. Schlier to be his best friend. (Id. at 67.) He testified that Mr. Schiler was angry, frightened, and embarrassed by being removed from the towing list and that Mr. Schlier appeared stressed and like a "beaten man." (Id. at 73-75.) Stephen Mesics, who did not testify at the first trial, stated that the Plaintiff brought Mesics in to his business to increase efficiency after the loss of the state police revenue, and that the situation with the police was causing Mr. Schlier stress. (Id. at 82-83.) Harold Wheeler, another friend of Mr. Schlier's, testified that the removal from the towing list was "a devastating thing to [Mr. Schlier]" and that the emotional effect of the removal was only rivaled by Mr. Schlier's loss of his first wife. (Id. at 93, 96.) Thomas Murphy also testified that he considered Mr. Schlier to be his best friend. (Second Trial Tr., Day 3 at 86, June 24, 2009.) He testified that when Mr. Schlier relayed the news of his removal from the towing list, Mr Schlier "broke down and cried" and that the removal "ripped [Schlier's] heart out." (Id. at 89.) Murphy said that Mr. Schlier "almost became a recluse" after his removal from the towing list. (Id.) He also stated that the extent of the emotional harm from the removal from the towing list "ranked right there with the death of his first wife." (Id. at 94.)
At the second trial, unlike the first trial, Plaintiff called Mr. Schlier's primary care doctor, Dr. Garry Carbone, as a witness. Dr. Carbone testified that Schlier suffers from hypertension, diabetes requiring insulin, hyperlipidemia, and chronic renal failure based on those conditions. (Id. at 13.) He testified that he would normally require a patient with those conditions to have an office visit once every three months; Dr. Carbone stated that Mr. Schlier had an office visit on July 17, 2002, "had a no show" in October of 2002 and did not have another visit until December of 2003. (Id. at 19.) From 1997 to 2001, Mr. Schlier averaged approximately five (5)or six (6) visits per year with Dr. Carbone. (Id. at 50-51.) In 2007, a biopsy was performed on Mr. Schlier's kidney which showed kidney failure. (Id. at 21.) Dr. Carbone opined that the kidney failure was a consequence of poorly controlled diabetes. (Id.) Dr. Carbone could not figure out why Mr. Schlier was not following the treatment regimen that was outlined for him and suspected that Mr. Schlier's "health became secondary to something." (Id. at 25.) Dr. Carbone testified that, in his opinion, stress during the period when Mr. Schlier was off the towing list increased the risk that Mr. Schlier would be harmed by diabetes and kidney failure. (Id. at 28.)
On cross examination, Defendants' counsel pointed out that stress and depression were not included in any of the relevant office notes. (Id. at 65.) It was also noted that there was no prescription for Ambien during the relevant time period in the records. (Id. at 71.) However, on re-direct, Dr. Carbone stated that he was sensitive about writing anxiety, stress or depression in his office notes because he did not want to prejudice his patients in any future endeavors should their medical records be reviewed. (Id. at 79.)
In the charge conference, following the third day of trial, this Court suggested that it might include some sort of curative instruction informing the jury that damages should not be awarded to punish Defendants' conduct. (Id. at 129.) However, the following day, the Court decided that it would not give any instructions regarding punitive damages, or that the jury should not consider penalizing the defendant, instead choosing to adhere more closely to the standard compensatory damage instruction that is given in the Third Circuit. (Second Trial Tr., Day 4 at 6, June 25, 2009.) On June 26, 2009, the jury returned a verdict of five hundred thousand dollars ($500,000) in compensatory damages for Mr. Schlier. (Doc. 370.) Judgment was entered in favor of Plaintiff Schlier on June 26, 2009. (Doc. 371.)
Plaintiff filed a post-trial motion on July 13, 2009. (Doc. 374.) The Motion requested that the Court 1) "confirm" the first jury's verdict in favor of Mr. Schlier, 2) that, in the alternative, the Court should grant a new trial on punitive damages pursuant to Federal Rule of Civil Procedure 59(b)*fn1 , 3) that the Court apply post-judgment interest running from the date of the first judgment, rather than the second judgment, and 4) that the judgment be amended to read that ...