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Free Speech

Court Reinstates $550K Award in #TheyLied Lawsuit

The plaintiff was fired and accused of sexual harassment; he won a libel lawsuit over that, and the jury awarded him $550K, but the trial court had reduced it to $100K.


From the factual allegations, as reported in the Appellant's Brief in Fernalld v. ABB, Inc.:

Brian Fernalld is the Plaintiff, who was a high-level executive of the corporate Defendant. The corporate Defendant is a North American subsidiary of a large Swiss company, and Defendant Lewis "Chuck" Noddin was Fernalld's boss (an even higher-level executive than Fernalld) and Laura Noddin is Mr. Noddin's wife. The suit was … for age discrimination and retaliation against the corporate Defendant [the jury rejected this theory -EV] and against all Defendants for defamation per se for making statements that Fernalld committed sexual touchings (battery/harassment) on Laura Noddin [the jury accepted this theory, as to Ms. Noddin -EV].

The Complaint set forth how Fernalld was around 60 years old and witnessed numerous older managers and employees terminated in the company due to their age, and that he complained about same. All 25 years with the corporate Defendant, Fernalld had received good reviews, but during his 25th anniversary party Defendant Noddin commented that Fernalld was the oldest employee in the office. Shortly thereafter, a high-level Swiss executive came to town for a meeting and demanded to know when Fernalld was going to retire.

Part and parcel of the pretextual, fabricated reason for Fernalld's termination was for Defendants to "falsely and defamatorily accuse Fernalld of having committed a sexual assault upon Defendant Laura Noddin when same is false." The defamatory statements included statements that Noddin repeatedly rubbed Laura Noddin's thigh and back against her will and that it took a battery upon Fernalld by Laura Noddin to stop the assault, and these statements were published to numerous people in the 2 years before the filing of the Complaint.

The Complaint made clear that falsely accusing a high-level executive of such misconduct "impute[d] to Fernalld conduct, characteristics, or a condition that is incompatible with the proper exercise of managerial duties" and that such words "that were published concerning Fernalld tend[ed] to degrade him, bring him into ill repute, destroy confidence in his integrity or cause other like injury, and thus such is actionable per se." As alleged, the statements show conditions in Fernalld that are "incompatible with the proper exercise of Fernalld's business, trade, profession or office [and] are slanderous per se" and that now "his peer group believes that he is some violent sexual assault artist which required a battery upon his person to stop such assault, when same is not true." …

Defendants' Answer contained a general denial, but Defendant-Appellee Laura Noddin brought a counterclaim for civil battery against Fernalld–the alleged touching that Fernalld denies that Laura Noddin claimed took place on June 7, 2013, which was described as constituting sexual harassment and making Fernalld in Defendants' view a "serial sexual harasser."

(I focus on the plaintiff's side of the story, because, as to defamation claim and the battery counterclaim, the jury apparently must have largely accepted the plaintiff's theory.)

And here's last week's Florida Court of Appeal opinion, written by Judge Jeffrey Kuntz and joined by Judges Jonathan Gerber and Alan Forst:

Brian Fernalld appeals the circuit court's order granting in part Laura Noddin's motion for remittitur or new trial on Fernalld's $550,000 defamation award against Ms. Noddin. While we understand the judge had questions about the jurors' verdict, those questions did not allow the judge to serve as the seventh and ultimate juror. Fernalld asked the jury to award him hundreds of thousands of dollars on his defamation claim, and the jury did so. The court [Judge David Haimes] erred when it remitted the verdict to $100,000. We reverse the court's order and remand with instructions to reinstate the jury's verdict….

At trial, Fernalld sought damages of $2,151,755.49 in back pay for his unemployment from 2014 to 2018, and $1,200,000 in future pecuniary loss. He explained that he did not have enough money to pay the bills, lived off his retirement money, borrowed money from his children, was forced to sell his house, and accrued credit card debt. Fernalld also claimed he owed his daughter $40,000, his son $10,000, and the bank "a hundred and some thousand dollars."

Fernalld testified that he suffered emotionally too. At the lowest point, he thought that "maybe it was time to have a car accident or something" so his wife could receive his life insurance money. In response to a question from the jury, he testified that he contemplated suicide because he "didn't know what to do" about his finances.

After the trial, the jury returned its verdict. The jury found that Fernalld failed to prove that his employer, ABB, terminated him because of his age. But the jury also found Fernalld proved Ms. Noddin made defamatory statements about him that damaged his business and reputation. The damages Fernalld sustained, the jury concluded, totaled $550,000. Finally, the jury found that Ms. Noddin did not prove Fernalld committed a battery on her.

Ms. Noddin moved for remittitur, arguing the $550,000 award was "clearly indicative of prejudice, passion, or corruption on the part of the trier of fact." She argued the amount shocked the court's conscience as evidenced by the court's post-verdict comment that the award was "[c]ertainly not any kind of verdict [the court] would have ever guessed."

The court held a hearing on the motion. After the hearing, the court expressed that it did not know where the jurors got their number from and did not know what went into their thought process—looking at the facts, the court was "not sure how you get to 550,000." The court found that "[t]here seem[ed] to be a lot of inconsistencies" in the testimony, and stated that the inconsistencies are "probably why [the jury] found in favor of [Fernalld] on the defamation [claim] and against Ms. Noddin on the battery [claim]."

The court found that Fernalld's testimony about his depression and contemplating suicide "all pertain[ed] to him losing his job," and noted he never saw any health professionals for mental or physical health problems from the defamation. Ultimately, the court "didn't see" that Fernalld's emotional distress was attributable to Ms. Noddin's allegations. The court found:

I think it's grossly excessive. I think it's – it's not reasonably related to the damages proved and the injuries suffered. And so I just don't see how it's logical. And you look at the different factors. And so I think it's indicative of passion by the jury, even based on a lot of the questions that they had asked during the trial….

When considering a motion for remittitur, the court must determine whether the amount of a damages award "is excessive … in light of the facts and circumstances which were presented to the trier of fact." In determining whether an award "exceeds a reasonable range of damages," the circuit court must consider five factors:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;

(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;

(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;

(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and

(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

Here, the court concluded that it "[didn't] know what went into [the jury's] thought process" when it awarded $550,000 to Fernalld. The court's first thought when the $550,000 verdict came out was that it was "excessive" and "somewhat punitive" because the jurors seemed to be trying to "send a message that they didn't like it" and that they did not believe Ms. Noddin. The court also believed the jury's verdict against Fernalld on his discrimination claim was inconsistent with its verdict against Ms. Noddin on her battery counterclaim. Finally, the court did not believe that the evidence supported damages for the defamation claim and, instead, determined that the evidence related to the discrimination claims.

Although the circuit court had misgivings about the evidence and the jury's verdict, the jury's verdict was supported by competent substantial evidence, and the circuit court lacked competent substantial evidence to support its finding that the jury's verdict violated any of the section 768.74(1) factors.

Fernalld asked for hundreds of thousands of dollars from the jury for his defamation claim. He argued that he sustained significantly more damages too. He presented evidence that he was depressed, suicidal, in financial distress, and unemployed. He also presented evidence suggesting the defamatory statement was transmitted to each of ABB's fifty employees and people outside the company. Consistent with the requested amount and the jury's interpretation of the evidence, the jury awarded Fernalld $550,000 on his defamation claim. The court erred when it substituted its interpretation for the plausible interpretation accepted by the jury.