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ATTORNEY: Philip E. Kay FIRM: Law Offices of Philip E. Kay, San Francisco CASE: Gober v. Ralph’s Grocery Co., No. N72142 (San Diego Co., Calif., Super. Ct.) Sometimes the conduct that has spurred a lawsuit is so outrageous that a plaintiffs’ lawyer has to hold back on laying out all the details, says Philip E. Kay. In a recent sexual harassment trial, Kay delayed disclosing some of the more egregious acts charged against a supervisor at Ralph’s Grocery Co. in Escondido, Calif. The supervisor, Roger Misiolek, had once picked up the lead plaintiff, Diane Gober, and “slammed her into a chair,” Kay says. “He threw phones at women. He punched women in the stomach. He continually made the most vile, misogynistic remarks to them.” These remarks included, “worthless b—h,” “f—–g c–t,” “fat s–t” and others. “To one woman who had several children, he told her, ‘you should have your t–t sewn shut.’” But in his opening statement, Kay says, “I didn’t give them all the facts. This conduct was so bad, so incredible, so over the top, that I thought the jurors might not believe it.” He had to give the jurors “a feel for this guy first. You can never give the impression that you’re not credible. It was going to be a long trial,” he adds, with time to get into the specifics. “But I had to have more foundation. Nobody wants to think someone who looks normal could turn around and do that.” Kay specializes in representing plaintiffs in employment civil rights and discrimination litigation, often handling cutting-edge claims. Kay gained national prominence in 1994 when he won a $7.2 million verdict against the Baker & McKenzie megalaw firm and one its partners. That verdict was one of the highest ever in the sexual harassment field, and is considered a groundbreaker for such claims. It also was the spur to his being hired for the lawsuit against Ralph’s. Diane Gober, one of the plaintiffs, came to Kay in 1996 after reading about his work against Baker & McKenzie. Five other women joined the lawsuit, each claiming similar treatment by Misiolek. Each plaintiff claimed that Misiolek routinely harassed female employees, physically and verbally abusing them by calling them vulgar names, manhandling them and throwing items at them. The women had made numerous complaints to Ralph’s about Misiolek’s behavior. But Kay says, Ralph’s did not investigate, document or remedy the situation. In developing a sexual harassment claim, Kay says, the first step is to look for “strong corroborating evidence. There is an existing bias — people don’t want to believe this,” he says. “To get over that denial, you have to have evidence almost to a certainty.” In this case, he says, “the six women corroborated each other.” But he sought additional information and additional witnesses. He determined what other stores Misiolek had worked at, before and after the incidents detailed by his clients. “We sent out an investigator to the prior and current stores to establish a pattern of conduct. We developed a whole history of Misiolek’s misconduct dating back more than a decade.” To prevail on a claim, he adds, “the harassment has to be serious. If there is no physical contact, if it’s just verbal, most jurors won’t do anything.” But acts of harassment by an individual are not enough to win damages from his employer. “The company always denies that it had knowledge.” To establish the company’s responsibility for the harassment, he says, “You have to focus on what the company knew and when it knew it.” This requires finding supporting documents and testimony on complaints to superiors or corporate officers. To this end, Kay put together not just a history of the behavior, but the complaints and the responses, or lack thereof. At one store where Misiolek had worked prior to Escondido, he says, there had been 60 complaints. In a store after, there were more than 70 complaints. In the first trial on this claim, in 1998, a San Diego jury found Ralph’s liable for gender harassment, failure to prevent gender harassment and malice or oppression based on the defendant’s conscious disregard of the rights or safety of others. The jury awarded $550,000 in compensatories and $3,325,000 in punitives. The punitive judgment was set aside on post-trial motions when it was revealed that a juror, who was a shareholder in Ralph’s parent company, had used information acquired outside the jury room to diminish the plaintiffs’ expert’s assessment of the defendant’s worth. “We said Ralph’s was worth $3 billion, but this juror said it was worth less than $1 billion.” This kept the punitive judgment down, but the plaintiffs did not seek a reversal. Ralph’s did, he notes. The retrial would consider punitives only; the finding of liability had been upheld on appeal. Nevertheless, Kay says, the plaintiffs faced some significant obstacles. Jurors often award less in a retrial because “the other side creates doubt. ‘Did the first jury get it right?’ The court ruled that Ralph’s couldn’t retry that issue, but they did it anyway.” To ward off jury nullification, he says, “We got the jury to understand that they could not ignore the first ruling. That if they did it would be juror misconduct.” It was essential as well, he says, to tell the jury why there was a reversal in the first trial. “I had the judge tell the jury that the retrial was caused by juror misconduct,” he adds. For the second trial, he adds, the court did not allow additional discovery and severely limited the plaintiffs’ presentation. “We were not allowed to do new discovery.” The plaintiffs were also prevented from introducing new evidence and blocked in putting on all the evidence from the first trial. Witnesses who testified in the second trial could only read from the trial transcript, verbatim, what they had testified in the first. “We had to take what little evidence we had and maximize its impact.” To do this, he changed the presentation. “The focus was not on what happened to the women, but what the company did.” He began with women who had complained prior to the plaintiffs, to establish how long the company had been put on notice about Misiolek’s behavior. Kay was allowed one nontranscripted, live witness: Misiolek. In this direct examination, Kay says, “I was not asking him if he engaged in this conduct, but what the company did.” Misiolek testified that, among other things, despite the complaints the company had never reprimanded or demoted him as a result of such complaints. Eventually, Kay notes, Misiolek’s employment was terminated, but that came years after the lawsuits were filed. Kay let the defense call Ralph’s executives because, he says, “I did not want to sponsor their denials.” This proved particularly telling in the appearance of Gary Raymond, a Ralph’s senior vice president. The defense was also limited to having the witness read only the answers from the first trial, in response to actual questions. “Usually we read the whole thing,” Kay says. “They cherry picked, out of context and out of order, mixing cross and direct.” The defense “cherry picked” this exam as well, but when it was Kay’s turn, he did the entire examination. “Over the next two hours, Raymond tanked.” Kay read the questions, Raymond read his answers from the first trial. “He wanted to disown his own words, but he was stuck reading it. That closed the door,” Kay says. On April 5, a San Diego jury awarded the plaintiffs $30 million in punitives. Post-trial motions are pending. TRIAL TIPS � Find strong corroborating evidence first. � Focus on what the company knew, and when. � In some instances, hold back on most egregious details.

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