Bielicki v. Terminix International Co.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 6 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

VICKIE BIELICKI; MARTA ROMANA;
CINDY VIGIL,

Plaintiffs - Appellees,
v. No. 98-2349

THE TERMINIX INTERNATIONAL
COMPANY, L.P.,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-97-1194-JC)

Stephen E. Tinkler, Tinkler & Bennett, Santa Fe, New Mexico (Jane Bloom Yohalem,
Santa Fe, New Mexico and Merit Bennett, Tinkler & Bennett, Santa Fe, New Mexico
with him on the brief), for Plaintiffs-Appellees.

Malcolm E. Wheeler, Wheeler, Trigg & Kennedy, Denver, Colorado, for
Defendant-Appellant.

Before KELLY, Circuit Judge, McKAY, Senior Circuit Judge, and LUCERO, Circuit
Judge.

LUCERO, Circuit Judge.

The Terminix International Company, L.P., appeals from a jury verdict awarding
punitive damages based on injuries suffered by Vickie Bielicki, Marta Romana, and

Cindy Vigil from a Terminix employee’s spraying of a toxic pesticide in their presence.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

On April 17, 1997, Bielicki, Romana, and Vigil were routinely finishing their

duties as private food service workers at the New Mexico State Prison when Marquis

Sanchez, a Terminix employee, sprayed a toxic pesticide called Conquer in the kitchen

area causing them to become violently ill. All three plaintiffs suffered permanent,

chronic injuries as a result of the exposure.

Before trial, Terminix stipulated that Sanchez had been negligent and that

Terminix was vicariously liable for his negligence. Thus, the only issues tried were the

amount of compensatory damages and the propriety and amount of punitive damages.

The jury found in favor of plaintiffs and awarded compensatory damages of $60,700 to

Bielicki, $77,800 to Romana, and $31,600 to Vigil, and punitive damages in the amount

of $728,400 to Bielicki, $933,600 to Romana, and $379,200 to Vigil. Terminix’s motions

for a directed verdict, judgment as a matter of law, and a new trial or remittitur were

denied by the district court.

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 II

Denials of motions for a directed verdict and for judgment as a matter of law are

reviewed de novo. See Knight v. Snap-On Tools Corp., 3 F.3d 1398, 1401 (10th Cir.

1993). Judgment as a matter of law is appropriate only “[i]f during a trial by jury a party

has been fully heard on an issue and there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party.” Fed. R. Civ. P. 50(a)(1); see also Davis v. United

States Postal Serv., 142 F.3d 1334, 1339 (10th Cir. 1998). We construe the evidence and

inferences therefrom in the light most favorable to plaintiffs, the nonmoving party in this

case, see Wilson v. Tulsa Junior College, 164 F.3d 534, 536 (10th Cir. 1998), and the

jury’s decision will be overturned only if the evidence “points but one way and is

susceptible to no reasonable inferences supporting the party for whom the jury found,”

Zimmerman v. First Fed. Sav. & Loan Ass’n of Rapid City, 848 F.2d 1047, 1051 (10th

Cir. 1988).

Under New Mexico law, “punitive damages may not be imposed on an employer

for the misconduct of an employee absent some evidence that the employer in some way

contributed to . . . the employee’s misconduct.” Campbell v. Bartlett, 975 F.2d 1569,

1582 (10th Cir. 1992). Therefore, Terminix is not liable for punitive damages unless it is

shown that it “participated in, authorized, or ratified the tortious conduct of the

employee.” Albuquerque Concrete Coring Co. v. Pan Am World Servs., Inc., 879 P.2d

772, 775 (N.M. 1994) (internal quotation omitted). Pursuant to this standard, the district

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court held there was sufficient evidence from which a jury could conclude that

[David Minder, Sanchez’s supervisor,] authorized Sanchez to treat the
prison facility with [Conquer] on April 17 even if people were present[;] . . .
that Terminix’s sloppy procedures and cavalier attitude toward safety and
licensing requirements constituted participation in the reckless conduct[;
and] . . . that Minder ratified Sanchez’s misapplication based on Sanchez’s
deposition testimony that Minder was more concerned with obtaining proof
that the prison was treated than with the injured people.

(II Appellant’s App. at 566 (emphasis added).)

Authorization can be inferred from a supervisor’s instruction to an employee to

perform a procedure, given with the knowledge that safety concerns exist. See Brashear

v. Packers, 883 P.2d 1278, 1280-81 (N.M. 1994). Here, Minder instructed Sanchez to

spray the prison with Conquer on April 17, 1997. Specifically, he told Sanchez “to go in

and fog and crack-and-crevice, try to hit void areas, hit baseboards.” (III Appellant’s

App. at 608.) Upon prior examination of the building, Minder concluded that because of

the age of the building, any pesticide sprayed into the brick plumbing voids in the kitchen

area had a high risk of escaping or “gas[sing] off” and becoming airborne. (Id. at 863-

64.) Yet, when he instructed Sanchez, he failed to raise this risk and advise that no one

could safely be present during the application.

Prison officials had told Minder not to spray Conquer with inmates or staff present,

but Minder did not communicate that instruction to Sanchez. Instead, he ordered Sanchez

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“to go spray using the Actisol [machine] or we’re going to lose the contract.”1 (II

Appellant’s App. at 592.) Loss of the contract was a concern because just a few weeks

prior to the incident, prison officials had threatened termination of its contract with

Terminix if services did not improve promptly.

When Sanchez was trained to use Conquer by Roger Jiminez, Minder’s

predecessor, Jiminez sprayed Conquer in the presence of third persons. Sanchez testified

that he knew from the label it was dangerous to spray Conquer with people in the area,

but it was his understanding from Terminix that even “if [he] showed up to spray

Conquer and there were people present,” he nevertheless “needed to go up there and use

the Conquer machine or [they] would lose this account.” (Id. at 591-92.) Terminix “never

told” Sanchez that he was not “to spray Conquer in the presence of people,” or that if he

“showed up for a Conquer application with the Actisol [machine] and there were people

present, that [he] should not do the application even if they wanted [him] to do it.” (Id.)

On arrival at the prison on the day in question, Sanchez encountered inmates and

staff at the application site, but sprayed Conquer nonetheless because he “didn’t have any

choice because of Mr. Minder’s instructions.”2 (Id. at 606.) Sanchez stated he was

1
Terminix contends that only one inference can be drawn from Minder’s concern
over the loss of the contract—that the job must be done properly or not at all. While this
is one inference that could be drawn, evidence supports the conclusion that Sanchez was
not so instructed.
2
There is a material distinction, according to Terminix, between authorizing
Sanchez to apply the pesticide on that day and authorizing a tortious application of the
pesticide. Terminix claims that Sanchez’s tortious conduct was spraying with people

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“Oliver North that day . . . just following orders.” (Id. at 622.) The jury could reasonably

infer from this evidence that Sanchez was authorized to perform the application at the

prison even if people were present. See Brashear, 883 P.2d at 1280-81.

Participation can be inferred from policies of the principal that permit the conduct

of the agent, see Templin v. Mountain Bell Tel. Co., 643 P.2d 263, 266-68 (N.M. 1982),

or from evidence of a general “atmosphere” that permits such conduct, Weidler v. Big J

Enters., 953 P.2d 1089, 1101 (N.M. Ct. App. 1997) (holding that “evidence . . . [of] an

atmosphere within the corporation that discouraged the expression of safety concerns”

supported the inference “that the corporation either approved or participated in [an

employee’s] termination for expressing safety concerns”).3

The record demonstrates that Terminix condoned the disregard of safety practices

during pesticide applications. In addition to his improper training and instructions,

present, not merely the possibility of an airborne cloud of which Minder was aware. The
evidence belies this distinction. The jury could infer from the evidence presented that
Sanchez reasonably believed he was instructed to complete the job that day, despite his
hesitations upon arriving at the prison and finding people in the area he was about to
spray.
3
Terminix contends that a cavalier attitude toward safety at best establishes
negligence, but does not support an award of punitive damages. This assertion
misconstrues the applicable law. In support of its proposition, Terminix relies on cases
addressing whether particular conduct was negligent. See Gonzalez v. Surgidev Corp.,
899 P.2d 576, 588 (N.M. 1995); Hood v. Fulkerson, 699 P.2d 608, 611 (N.M. 1985);
Enriquez v. Cochran, 967 P.2d 1136, 1169 (N.M. Ct. App. 1998). Here, Terminix
concedes that Sanchez’s conduct was negligent. These cases do not address the question
of whether Terminix authorized, participated in, or ratified that conduct. With regard to
that question, as noted, an atmosphere encouraging the conduct at issue can support an
inference of participation. See Weidler, 953 P.2d at 1101.

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Sanchez was not properly licensed at the time of the application due, at least in part, to

clerical errors at Terminix. Moreover, even though corrections officer Cayetano Trujillo

was required to stay with Sanchez during the application, Terminix failed to provide him

with the necessary protective clothing such as goggles or a respirator. Immediately after

the incident, Trujillo requested the Material Safety Data Sheet (“MSDS”), but it was not

in the truck as required. It was the responsibility of management to ensure that the MSDS

was in the truck. Based on this evidence, the jury could reasonably conclude that

Terminix participated in the conduct of its agent.4 See Weidler, 953 P.2d at 1101.

Regarding ratification, “[a] corporation can ratify the acts of its agents by

acquiescence in or acceptance of the unauthorized acts.” Albuquerque Concrete Coring,

879 P.2d at 776 (citing Bank of Santa Fe v. Honey Boy Haven, Inc., 746 P.2d 1116, 1119

4
Terminix’s argument that absent any prior warning that an employee is prone to
misconduct, a corporation’s failure to exercise closer control over its employees does not
warrant an award of punitive damages, is without merit. The cases relied on by Terminix
for this contention are distinguishable. In Eckhardt v. Charter Hospital of Albuquerque,
Inc., 953 P.2d 722 (N.M. Ct. App. 1997), the court only considered whether the conduct
at issue was negligent, which Terminix concedes. Its reliance on Sameden Oil Corp. v.
Neeld, 577 P.2d 1245, 1249 (N.M. 1978), in which the trial court misinstructed the jury as
to the appropriate rule, is likewise misplaced. In Campbell, 975 F.2d at 1581-83, the
court held that notations in an employee’s file that “he had refused chemical tests in 1974
and 1976 and that he was the subject of a DWI arrest or conviction in 1976” were
insufficient to establish that the defendant trucking company had authorized, participated
in, or ratified an alcohol-related trucking accident of the employee in 1986. Noticeably
absent in Campbell is evidence that the defendant expressly or impliedly instructed the
employee to drive his truck while intoxicated, that there was an atmosphere at the
company condoning such conduct, or that after the accident, the company in any way
ratified the conduct. Such evidence is present here and distinguishes this case from
Campbell.

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(1987)). Evidence of ratification includes Sanchez’s call to Minder from the prison after

the incident. Sanchez asked Minder to repeat his instructions; Minder again said, “[G]o

in and fog and crack-and-crevice, try to hit void areas, hit baseboards.” (II Appellant’s

App. at 608.) Claiming “that’s exactly what [he] did,” Sanchez informed his supervisor

that “a few inmates and some office personnel got sick.” (Id.) Instructing Sanchez not to

“worry about it,” Minder advised he would “deal with it tomorrow.” (Id. at 593, 608.)

Even though Sanchez informed Minder that people were ill as a result of the application,

Minder gave but one instruction: “Make sure that you put on the ticket that you were

ordered to stop so that we can get paid for this . . . [and] make sure the signature is on the

ticket.” (Id. at 613.)

Sanchez was at a different job site the next day, and no one at Terminix contacted

him to inquire about the incident or asked him to prepare a report documenting the same.

At a staff meeting several days later, the matter was not discussed. After that meeting

Sanchez went to his supervisor’s office in an attempt to discuss the issue. Instead of

asking for details, Minder said he would “handle it” and again told Sanchez “[n]ot to

worry about it.” (Id. at 611.) Minder admitted that he never did an investigative report

on the incident. Yet another supervisor, Rick Boss, failed to take appropriate action,

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instead choosing to regularly joke about the incident by stating that Sanchez was

“sav[ing] the taxpayers money” by “getting rid of the inmates.” (Id. at 616.)

Relying on Romero v. J.W. Jones Construction Co., 651 P.2d 1302, 1306 (N.M.

Ct. App. 1982), Terminix argues that Minder did not know all the details of the events at

the prison and therefore never intended to ratify Sanchez’s conduct. We disagree.

Where, as here, “ignorance of facts arises from a principal’s own failure to investigate

and the circumstances are such as to put a reasonable man upon inquiry, he may be held

to have ratified even though he may have lacked full knowledge.” See Tee Mining Corp.

v. National Sales, Inc., 417 P.2d 810, 812 (N.M. 1966). Ratification requires “either

knowledge of the material facts or circumstances sufficient to put a reasonable person on

notice to inquire into these facts,” not both. Jessen v. National Excess Ins. Co., 776 P.2d

1244, 1249 (N.M. 1989) (emphasis added), modified on other grounds by Paiz v. State

Farm Fire & Cas. Co., 880 P.2d 300, 307-08 & n.6 (N.M. 1994). Minder failed to inquire

into the facts of the incident after being put on notice that an application resulted in

injury.

We recognize that much of this evidence was disputed by Terminix at trial, but it

is within the province of the jury to give testimony whatever weight it deems appropriate

after evaluating the credibility of the witnesses. See United Phosphorus, Ltd. v. Midland

Fumigant, Inc., 205 F.3d 1219, 1226 (10th Cir. 2000) (“In our review [of a motion for

judgment as a matter of law], we may not weigh the evidence, pass on the credibility of

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witnesses, or substitute our judgment for that of the jury.”). After carefully reviewing the

trial transcript, we conclude the district court did not err in upholding the award of

punitive damages.

III

We review for abuse of discretion the district court’s denial of a motion for a new

trial or remittitur, see Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1261

(10th Cir. 1995), recognizing that the trial court is in the unique position to observe the

witnesses and their demeanor as well as the jurors’ attitude during the trial, see Grammar

v. Kohlhaas Tank & Equip. Co., 604 P.2d 823, 833 (N.M. Ct. App. 1979). Therefore, in

determining whether a jury verdict is excessive, we do not “weigh the evidence but

determine[] the excessiveness as a matter of law.” Chavez-Rey v. Miller, 658 P.2d 452,

454 (N.M. Ct. App. 1982).

The Supreme Court decision in BMW of North America, Inc. v. Gore, 517 U.S.

559, 575 (1996), established three factors in determining whether a punitive damages

award is excessive in violation of the Due Process Clause of the Fourteenth Amendment:

“the degree of reprehensibility of [defendant’s conduct]; the disparity between the harm

or potential harm suffered by [the plaintiffs] and [their] punitive damages award; and the

difference between this remedy and the civil penalties authorized or imposed in

comparable cases.”

To determine reprehensibility, we examine whether (1) the defendant’s conduct

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“evinced . . . indifference to or reckless disregard for the health and safety of others,” (2)

the defendant “has repeatedly engaged in prohibited conduct while knowing or suspecting

that it was unlawful,” or (3) the evidence “discloses . . . deliberate false statements, acts

of affirmative misconduct, or concealment of evidence of improper motive.” BMW of N.

Am., 517 U.S. at 576, 579; see also Continental Trend Resources, Inc. v. OXY USA, Inc.,

101 F.3d 634, 638-39 (10th Cir. 1996). The evidence supporting our conclusion that

Terminix authorized, participated in, or ratified Sanchez’s conduct likewise establishes

Terminix’s indifference to, and reckless disregard for, the health and safety of the

plaintiffs. By comparison, in Weidler, 953 P.2d at 603, the court upheld a punitive

damages award in part based on its determination that “discharging an employee for

reporting safety concerns is particularly reprehensible,” even though the injury was

economic. Because the atmosphere of condoning disregard of safety concerns resulted in

permanent physical injuries to the plaintiffs, we cannot denounce the award as excessive

based on lack of reprehensibility.

The ratio between the punitive damages and compensatory damages awarded by

the jury is 12 to 1. In reviewing this ratio, we are not guided by a “mathematical bright

line between the constitutionally acceptable and the constitutionally unacceptable,” but

rather by a “general concern of reasonableness.” BMW of N. Am., 517 U.S. at 582-83

(internal quotations and citations omitted). If the act is particularly egregious, a

“relatively small compensatory damages award[] could logically result in a high ratio of

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punitive damages.” Allsup’s Convenience Stores, Inc. v. North River Ins. Co., 976 P.2d

1, 18 (N.M. 1998).

The district court concluded that the ratio between the punitive and compensatory

portions of the award was permissible because “[e]ach plaintiff presented evidence of

injuries that might be permanent and difficult to detect[, f]uture medical costs could be

greater that the jury’s compensatory award, and it is difficult to assign a cash value to

[p]laintiffs’ injuries.” (II Appellant’s App. at 567.) We likewise conclude that a high

ratio is justified because the evidence establishes that “the injury is hard to detect [and]

the monetary value of noneconomic harm . . . [is] difficult to determine.” BMW of N.

Am., 517 U.S. at 583. This case does not present the “breathtaking 500 to 1” ratio that

“raise[d] a suspicious judicial eyebrow” in BMW of North America, 517 U.S. at 583, as

this ratio is not substantially higher than ratios that have “easily [born] constitutional

scrutiny.” Allsup’s Convenience Stores, 976 P.2d at 18 (upholding a ratio of 7.4 to 1);

see also Weidler, 953 P.2d at 1102 (upholding a ratio of 8 to 1).

With regard to the last BMW factor, the reviewing court should give “substantial

deference to the legislative judgments concerning appropriate sanctions for the conduct at

issue” when “[c]omparing the punitive damages award and the civil or criminal penalties

that could be imposed for comparable misconduct.” BMW of N. Am., 517 U.S. at 583

(internal quotation and citation omitted). Federal civil penalties of up to $5,000 per

violation, and criminal penalties of up to a $25,000 fine and one year imprisonment, can

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be imposed for a knowing violation of any provision of the Federal Insecticide,

Fungicide, and Rodenticide Act. See 7 U.S.C. § 1361.5 Under New Mexico law, such

conduct could be punishable with penalties of up to $1,000 per violation, in addition to

suspension or revocation of an applicator’s license. See N.M. Stat. Ann. § 76-4-34.

Although the punitive damages award is exceptional when compared only to the

applicable fines, the authorization of imprisonment in the criminal context can justify a

higher award. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 (1991).

Accordingly, comparison of the award to the penalties that could be imposed for

comparable conduct does not bring the award “into the area of constitutional

impropriety.” Id. We therefore reject Terminix’s due process challenge to the amount of

punitive damages awarded by the jury.

Beyond the constitutional minimum, the Supreme Court of New Mexico has held

that “punitive damages do not have to be in reasonable proportion to actual damages, but

they must not be so unrelated to the injury as to plainly manifest passion and prejudice

rather than reason and justice.” Allsup’s Convenience Stores, 976 P.2d at 19 (quoting

Green Tree Acceptance, Inc. v. Layton, 769 P.2d 84, 87 (N.M. 1989)). There is no

evidence that passion or prejudice, rather than reason and justice, influenced the jury in

5
An employee’s conduct is deemed to be that of the employer in “every case.” 7
U.S.C. § 1361(b)(4).

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their award of punitive damages. See id. Consequently, we conclude the district court

did not abuse its discretion in upholding the amount of punitive damages awarded.

IV

We AFFIRM the judgment of the district court and GRANT Terminix’s Motion

to Supplement the Record on Appeal.

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