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Trial judges have broad discretion when they set out to reduce an excessive jury verdict, and the figure they choose should be the highest that will not shock the judicial conscience, a federal appeals court has ruled. In Evans v. the Port Authority of New York and New Jersey, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals upheld U.S. District Judge Katharine S. Hayden’s decision to reduce a jury’s award of $1.15 million in emotional damages in an employment discrimination case to $375,000. “Although we recognize that the award for emotional damages is atypical, and though we may have arrived at a different calculation had the award been ours to determine in the first instance, we find that the figure set by the District Court has substantial support in the record,” Judge Carol Los Mansmann wrote. But Los Mansmann found that Hayden should have reduced the award of attorneys’ fees and that her review of the plaintiff’s bill was not searching enough. “Our review of the billing records submitted by Evans’ counsel establishes that the District Court did not devote adequate attention to the hours expended and the duplication of effort by Evans’ attorneys; reduction in the fee award is warranted,” Los Mansmann wrote. In another significant holding, the appellate court found that Hayden correctly refused to grant a new trial on the basis of the jury’s apparent “passion” in rendering such a large emotional damages award. Los Mansmann found that Hayden considered the powerful effect of the plaintiff’s own testimony about being forced to train those who had been hired to take the promotions she believed she deserved. Hayden also found that the plaintiff’s testimony was bolstered by the testimony and demeanor of the defense witnesses who, Hayden said, appeared arrogant and appeared to consider the trial a “joke.” The plaintiff, Janet Evans, had been a Port Authority employee since 1979. In 1993, she worked as a liaison between the Port Authority and government and business officials. The same year, she applied and was interviewed for the position of client manager. Eight candidates were considered — four white candidates, three black candidates and one Hispanic applicant — and Evans, a black woman, was among three who were interviewed by a white male. The post was awarded to a white female, and Evans said she later learned that one of the white male candidates was promoted to a post that was never advertised. The jury found that the Port Authority violated Sections 1981 and 1983 of the Civil Rights Act, as well as Title VII, when it failed to promote Evans in 1994. It awarded Evans $148,000 in back pay, $182,000 in front pay, and $1.15 million in compensatory damages. Judge Hayden refused to grant a new trial but granted the Port Authority’s request for remittitur, reducing Evans’ compensatory damages for emotional distress to $375,000. Later, Hayden approved a request for more than $635,000 in attorneys’ fees. On appeal, the Port Authority’s lawyers argued that the authority was entitled to a new trial because the jury’s compensatory damages award of $1.15 million “was not supported by the evidence and was grossly excessive, reflecting a jury driven by mistake, passion, prejudice or partiality.” But Los Mansmann, in an opinion joined by U.S. Circuit Judges Anthony J. Scirica and Marjorie O. Rendell, found that Hayden did not abuse her discretion when she denied the request for a new trial. In a hearing, Hayden said she did not think the jury was motivated purely by sympathy. Instead, Hayden said, the testimony from Evans “had a tremendous impact on this jury.” The judge said she, too, was impressed. “I was here, and I sat the closest to her, of anybody, and I had the direct view of how the jury reacts. … This jury liked Janet Evans not because she pandered to them. … [Her] demeanor … was that of a proud, accomplished, intelligent woman whose faith in herself was shattered by consistent refusal … to give her what she felt rightly was [hers],” Hayden said. Hayden recalled that Evans told the jury she was designated to “train the very people who were brought in from the outside to fill a position which she was part of the creation of and which she [could have filled] far better than they could have filled.” Hayden found that the jury was also affected by the demeanor of a Port Authority witness “which was alternatively somewhat arrogant, somewhat embarrassed and generally unpersuasive.” Los Mansmann found that Hayden’s refusal to grant a new trial was a sound decision. “Based on the District Court’s observations with respect to the totality of the evidence, the demeanor of the witnesses, and the reaction of the jury, we are unable to conclude that the jury verdict resulted from passion or prejudice. Consequently, we find that the District Court’s decision to deny the Port Authority’s motion for a new trial was consistent with the sound exercise of judicial discretion,” Los Mansmann wrote. REMITTITUR The Port Authority did not challenge the remittitur of the emotional damages award to $375,000, but Evans filed a cross-appeal in which she urged the appellate court to reinstate the jury’s $1.15 million award. But Los Mansmann found that the appellate court’s role in reviewing a trial judge’s decision to remit a damage award is “severely limited.” Los Mansmann said Evans did not cite any other discrimination case from any other jurisdiction where an award approaching the jury’s verdict of more than $1 million was sustained. She also found that Evans’ attempt to justify the size of the award by reference to the record was “unpersuasive.” “Although we agree with Evans that ‘racial discrimination is vicious, destructive, and debilitating,’ we are not persuaded that the evidence of emotional distress adduced here is remotely sufficient to support the jury verdict. The verdict was ‘so large as to appear contrary to reason,’ and the District Court’s decision to grant remittitur was well within the discretion reserved to it,” Los Mansmann wrote. Appellate courts, Los Mansmann said, do not require trial judges to reduce an award to “less than the largest verdict that could be allowed without requiring a new trial.” Instead, Los Mansmann said, remittitur “should be set at the maximum recovery that does not shock the judicial conscience.” Los Mansmann found that Hayden’s award of $375,000 was within her discretion. “The District Court recognized, as do we, that this is a substantial amount, well above most emotional distress awards. Given the District Court’s detailed analysis of the total evidence presented, however, and our extremely deferential standard of review, we are not prepared to conclude that the award lies outside the bounds of reason,” Los Mansmann wrote. But Los Mansmann found that Hayden should have scrutinized the petition for attorney fees more closely before awarding more than $635,000. The Port Authority had challenged both the hourly rate of $300 for Evans lawyers — Raymond L. Hamlin and Terry Ridley of Hunt Hamlin in Newark, N.J. — as well as the number of hours they claimed. Los Mansmann found that Hayden correctly rejected the challenge to the hourly rate because the defense lawyers never submitted any evidence to challenge whether $300 per hour was truly the market rate for lawyers of their experience, while the plaintiffs’ lawyers had backed up their claim with supporting affidavits. But Los Mansmann found that Hayden was too quick to reject the defense complaint that the plaintiffs’ team had double-billed for many of the tasks. Trial judges, Los Mansmann said, are “obligated to review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are excessive, redundant, or otherwise unnecessary.” Los Mansmann said the appellate court had reviewed the billing records and found “multiple instances of duplicative billing for tasks which could not reasonably have required the identical expenditure of time by two partners, each billing at $300 per hour.” As a result, Los Mansmann concluded that “the total time billed and the extent of the overlap in work performed by Evans’ attorneys were extraordinary, and demand more than the cursory examination conducted by the District Court.” But Los Mansmann said the appellate panel opted not to reduce the award itself and instead decided to remand the case to Hayden for recalculation of the award. The Port Authority was represented by in-house attorneys Hugh H. Welsh of New Jersey and Donald F. Burke of New York.

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