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Name and location: Philip E. Kay, Law Offices of Philip Edward Kay, San Francisco Case: Gober v. Ralph’s Grocery Co., No. N72142, San Diego Co., Calif., Super. Ct. Outcome: After a $3.3 million punitive damages award was vacated, a jury in a punitives-only retrial awarded $30 million to six former and current employees of Ralph’s Grocery Co. At the first trial, in 1998, a jury found Ralph’s liable for sexual harassment and awarded the plaintiffs $550,000 in compensatory and $3,325,000 in punitive damages. The punitive award was reversed when it was revealed that a juror — a Ralph’s shareholder — used information not presented at trial to undermine a plaintiffs’ expert’s testimony about Ralph’s net worth. It was the defense that sought reversal of the punitives. Retrial was held after an appeals court upheld Ralph’s liability and the compensatory award. The plaintiffs alleged that Ralph’s management failed to act on their complaints about store director Roger Misiolek who, they alleged, physically and verbally abused them. They alleged he threw telephones, clipboards and a 30-pound mailbag, manhandled them and screamed profanity at them in front of customers. Confronted by upper management, Misiolek resigned in 2000. At the first trial, Ralph’s claimed it was worth less than $1 billion. By retrial, the company had been purchased twice, and the plaintiffs presented Securities and Exchange Commission documents indicating a $3.7 billion net worth. WHY DID THE RETRIAL JURY AWARD 10 TIMES MORE PUNITIVES? By being able to focus solely on this question and not having other issues of liability to contend with, it allows a trial lawyer to get the jury to start considering this sole question from the conception of the case. As early as voir dire, I was telling them, “You are here for one reason and one reason only … to assess the appropriate amount of punitive damages against this corporate defendant.” I told them, “I’ll be asking you for millions of dollars for each of these women.” WHAT WAS THE MOST DIFFICULT OBSTACLE? Getting these 12 people to accept the findings of the first jury and not want to retry the case. It is human nature to want to make up your own mind. One of the reasons Ralph’s wanted to retry this was because studies have shown that on retrials of damages only, the second time around the damages are usually less. WHAT WAS THE KEY ISSUE? The jury was to look at the level of reprehensible conduct by Ralph’s — what did they know and when did they know it — before sending Misiolek to the store where the plaintiffs worked. … My hat’s off to the jury that, even based on the scant evidence they had, they felt Ralph’s needed to be taught a lesson. The jury focused on what complaints were communicated directly to senior management. Of 10 complaints that went directly to senior management, nine were excluded from trial. The jury didn’t hear the evidence that Ralph’s management knew as early as 1987 about Misiolek’s behavior. … The judge excluded all evidence that was excluded in the first trial. … The judge merely said if it wasn’t admitted in the first trial, it wasn’t going to be admitted in the second trial. … I know in talking to the jurors after the first trial and the second trial, both groups of jurors said they would have given substantially more punitive damages had they known of the evidence that was excluded. I feel extremely frustrated that I’ve had to try this case twice with 90 percent of my evidence sitting on the sidelines. … I am very happy for my clients because this second trial has vindicated them in sticking with this for six years. … Do I think that this is a proper award? Absolutely not. And that’s not my opinion. That’s [the jurors']. WHAT ARE YOUR CAREER HIGH AND LOW POINTS? This trial. The high points were closing argument … and the day the jury came back. The low point: It was like trying a case in front of Jekyll and Hyde. When we were in front of the jury, the judge was acting like Uncle Fuzzy. … He’s kind, he’s considerate. … When the jury wasn’t in there … he had threatened to hold me in contempt on numerous occasions simply because I was putting my objections on the record. … We had challenged this judge for bias on three different occasions before trial. … I made seven motions for mistrial in this case. … That was giving rise to a lot of friction between the judge and me. He later said he considered our challenges for bias to be personal attacks against him. Twice on the record he said, “I’m not going to let you make Ralph’s look bad.” My response was, “Then why are we here?” WHAT’S YOUR BEST TIP FOR DEALING WITH A JURY? If you don’t talk with and make a personal connection with each juror during voir dire, you’ve probably wasted the most important opportunity that a trial lawyer can have.

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