Mason v. Oklahoma Turnpike Authority

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 15 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

RONALD K. MASON,

Plaintiff-Appellee and
Cross-Appellant,

v. Nos. 98-6192 & 98-6201

OKLAHOMA TURNPIKE
AUTHORITY; JAMES ORBISON, in
his official and individual capacities;
GILBERT GIBSON, in his official
and individual capacities; MICK
LAFEVERS, in his official and
individual capacities; JIM SCOTT, in
his official and individual capacities;
JOHN GIBBS, in his official and
individual capacities; JAMES
BEACH, in his individual capacity;
ALAN FREEMAN, in his individual
capacity; SAM SCOTT, in his official
and individual capacities,

Defendants,

and

TERRY YOUNG, in his official and
individual capacities,

Defendant-Appellant and
Cross-Appellee.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-93-1836-R)

Submitted on the briefs:

Graydon Dean Luthey, Jr., of Hall, Estill, Hardwick, Gable, Golden & Nelson,
P.C., Tulsa, Oklahoma, for Defendants-Appellants/Cross-Appellees Sam Scott
and Terry Young.

Jan Preece Gaddis, Duncan, Oklahoma, and Joseph Righton Weeks, Oklahoma
City University School of Law, Oklahoma City, Oklahoma, for Plaintiff-
Appellee/Cross-Appellant Ronald Mason.

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

EBEL , Circuit Judge.

The full history underlying these appeals is available elsewhere. See

generally Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442 (10th Cir. 1997);

Mason v. Oklahoma Turnpike Auth. , Nos. 96-6308, 96-6323, 1997 WL 311880

(10th Cir. June 11, 1997); Mason v. Oklahoma Turnpike Auth. , Nos. 96-6065,

96-6069, 96-6308, 96-6323, 1997 WL 557571 (10th Cir. Sept. 9, 1997). We will,

therefore, limit our background recitation to those matters having immediate

relevance to the issues currently before the court. 1

1
After examining the briefs and appellate record, this panel has
(continued...)

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 The prior appeals established inter alia the liability, and attendant punitive

damage exposure, of defendant Terry Young 2
for the wrongful termination of

plaintiff Ronald Mason. As for the asserted excessiveness of the jury’s punitive

damage award--a total of $300,000 split evenly between plaintiff’s claims for

violation of public policy under state law and political discrimination under

42 U.S.C. § 1983--review was left to the district court’s discretion on remand.

The district court reconsidered and approved the award. Defendant Young

appealed (No. 98-6192), challenging the award in light of (1) plaintiff’s failure to

present evidence of defendant’s financial condition at trial, and (2) defendant’s

own evidence of impecuniousness, proffered on remand. Plaintiff cross-appealed

(No. 98-6201) to preserve his position that, if defendant’s post-trial financial

evidence were held to undercut the existing punitive damage award, we should

remand the case to offer him an opportunity to rebut such evidence, rather than

directly vacate the award or order a remittitur.

1
(...continued)
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The
cases are therefore ordered submitted without oral argument.
2
Defendant Sam Scott, originally an appellant in No. 98-6192 and
appellee in No. 98-6201, has been dismissed from the proceedings through
settlement. We therefore refer only to defendant Young here, even if the source
for our reference originally included both defendants.

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 I

Before we turn to the directly dispositive matters on this appeal, some

broad preliminary points should be clarified. The first concerns identification of

the issues properly before this court, which are limited by the content of our

previous remand and, thus, ultimately by the scope of defendant’s prior appeal.

See Dow Chem. Corp. v. Weevil-Cide Co., 897 F.2d 481, 486 n.4 (10th Cir. 1990)

(holding issue waived earlier in proceeding may not be revived by belated

assertion on remand). In that appeal, defendant sought a new trial “because the

punitive damages are excessive as against the clear weight of the evidence and the

result of improper passion and prejudice.” Brief in Chief of Appellants (Appeal

No. 96-6065) at 38; see also id. at 43 (alternatively seeking remittitur on same

basis). This was a standard common-law challenge to the size of the punitive

damage award; nowhere did defendant mention any additional, constitutional

objection. And our direction on remand--that “the district court also may, in its

discretion, reconsider the issues raised by Scott, [and Young] with respect to

excessiveness,” Mason, 115 F.3d at 1460 (emphasis added)--did not contemplate

or allow the subsequent interjection of new issues. Consequently, the

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constitutional arguments now advanced by defendant were waived prior to the

proceedings on remand and play no part in this decision. 3

Our second clarification has to do with the controlling authority for the

common law excessiveness inquiry. Defendant indiscriminately cites state and

federal decisions for the pertinent substantive standards, without explaining how

these correlate with the state and federal claims on which punitive damages were

awarded. While our disposition may not turn on any critical differences in this

regard, it is important to note that Oklahoma law governs the excessiveness

inquiry on the state tort claim, while federal law controls on the § 1983 claim.

However, in both instances our standard of appellate review, dictated by the

Seventh Amendment’s reexamination clause, is the same: abuse of discretion.

See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 438 (1996).

Our last clarification concerns the burden of proof. Defendant insists that

in establishing the propriety and amount of punitive damages, plaintiff was

obligated to present evidence of defendant’s financial condition. This is clearly

not the law with respect to the federal claim. See, e.g., Kemezy v. Peters, 79 F.3d

33, 33-34 (7th Cir. 1996) (following four other circuits in holding plaintiff does

3
We note that a substantive constitutional limitation on punitive
damages was acknowledged by the United States Supreme Court long before the
trial of this action. See, e.g. , TXO Prod. Corp. v. Alliance Resources Corp. , 509
U.S. 443, 453-54, 479-80 (1993); Pacific Mut. Life Ins. Co. v. Haslip , 499 U.S. 1,
18 (1991).

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not bear burden of demonstrating defendant’s financial condition); Grabinski v.

Blue Springs Ford Sales, Inc., 136 F.3d 565, 570-71 (8th Cir. 1998) (following

Kemezy). Nor is it the law for the state claim. When this case was tried, Okla.

Stat. Ann. tit 23, § 9 (superseded by id., § 9.1, for cases filed after Aug. 25, 1995)

required a plaintiff to show conduct by the defendant “evincing a wanton or

reckless disregard for the rights of another, oppression, fraud or malice, actual or

presumed” to justify punitive damages. The statute did not mention the financial

condition of the defendant. Accordingly, the Oklahoma Supreme Court

distinguished the quoted mandatory “criteria” for punitive damages, which limit

jury discretion with respect to the award through operation of burden-of-proof

constraints, from evidence of the defendant’s financial condition, which the court

characterized as merely “a consideration” a jury could take into account.

Rodebush ex rel. Rodebush v. Oklahoma Nursing Homes, Ltd., 867 P.2d 1241,

1251 (Okla. 1993). 4

4
The current version of the punitive damage statute does refer to the
defendant’s financial condition, though this is cited as but one of many factors
relevant to the proper amount, distinct from the requisite misconduct of the
defendant that the plaintiff must establish, by clear and convincing evidence, to
obtain any award. Compare § 9.1(A), (E) with § 9.1 (B)-(D). We express no
opinion regarding the effect of these later provisions on the issues in this case.

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 II

As noted at the outset, defendant’s objection to the jury’s punitive damage

award, and to the district court’s refusal to disturb it, focuses on his financial

condition: specifically, the lack of evidence adduced on the matter at trial, and

defendant’s own showing proffered post-trial (on remand). As we have already

seen, however, it was not plaintiff’s burden to establish defendant’s financial

condition. Rather, this was a matter defendant could have raised in opposition to

and/or mitigation of the punitive damages sought by plaintiff. His election not to

do so cannot undermine the award the jury was persuaded to grant plaintiff on the

evidence before it.

The district court discounted defendant’s own evidentiary showing on

remand for two, alternative reasons:

First, the Court notes that the Defendants made a deliberate, tactical
decision not to offer evidence of their respective financial conditions
at trial . . . . Under the circumstances, the court finds that it would
be inequitable to reduce the Defendants’ liability for punitive
damages on the basis of financial information which was available to
them at trial. Alternatively, the financial information provided by the
Defendants in this case is not sufficient to warrant a reduction in the
punitive damage awards.

Appendix at 206. We do not reach the district court’s second, substantive

assessment of the evidence, because the initial, procedural basis for rejecting it

suffices to justify the court’s disposition of the matter.

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 As already noted, we review the district court’s resolution of the

excessiveness question for an abuse of discretion. See Gasperini, 518 U.S. at

438; Vining ex rel. Vining v. Enterprise Fin. Group, Inc., 148 F.3d 1206, 1216

(10th Cir. 1998). Further, as a more general matter, the decision to admit or

exclude evidence is likewise reviewed solely for an abuse of discretion, see

Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 800 (10th Cir. 1997), even when

made in the course of proceedings outside the immediate trial context, see, e.g.,

Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874, 894

(10th Cir. 1997) (“Like other evidentiary rulings, we review a district court’s

decision to exclude evidence at the summary judgment stage for abuse of

discretion.”). As the passage quoted above reflects, the district court rejected

defendant’s attempt to augment the evidentiary record on punitive damages here

because it considered this post-trial effort to undermine the jury’s determination

inappropriate, particularly given the untaken opportunity to present such evidence

at trial. Under the circumstances, we cannot say this exercise of trial court

judgment was an abuse of discretion. 5

5
Indeed, there is a serious question whether, in light of the
reexamination clause of the Seventh Amendment, the district court even could
have permitted post-trial supplementation of the evidentiary record. One circuit
has considered the matter at some length and concluded that “the court cannot,
consistent with the Seventh Amendment, evaluate a jury’s verdict [for
excessiveness] based on evidence that the jury was not permitted to consider at
(continued...)

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 Without the financial evidence defendant sought to introduce on remand,

his challenge to the punitive damage award clearly must fail. With this

conclusion, the issues raised on plaintiff’s protective cross-appeal are effectively

mooted as well.

Finally, the primary focus of our prior remand was whether the $150,000 in

punitive damages awarded on both of plaintiff’s claims were duplicative, see

Mason, 115 F.3d at 1460; Mason, 1997 WL 557571 at **1, and, embedded in

defendant’s current objections regarding his financial condition, are a few passing

statements critical of the district court’s approval of the aggregate award of

$300,000. While these may “suggest dissatisfaction regarding [resolution of the

duplication issue], such perfunctory complaints fail to frame and develop an issue

sufficient to invoke appellate review.” Murrell v. Shalala, 43 F.3d 1388, 1390 n.2

(10th Cir. 1994). In any event, “[t]he question of whether damage awards are

duplicative is one of fact, reviewable under the clearly erroneous standard,”

5
(...continued)
trial.” Mattison v. Dallas Carrier Corp. , 947 F.2d 95, 108 (4th Cir. 1991); see
also Coleman v. Tennessee , 998 F. Supp. 840, 849 (W.D. Tenn. 1998). Defendant
notes this court once stated that “the District Court can hold a hearing to ascertain
defendant’s current economic status” for excessiveness purposes in a case
remanded on other grounds. Klein v. Grynberg , 44 F.3d 1497, 1505 (10th Cir.
1995). However, there is no indication this procedure was disputed by the parties,
much less on the Seventh Amendment grounds acknowledged here. Thus, we are
reluctant to presume the Klein panel considered and resolved, sua sponte and sub
silencio, the significant constitutional issue noted here.

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Mason, 115 F.3d at 1459, and we discern no clear error in the district court’s

finding that the separate awards against defendant “for the Section 1983 and state

public policy wrongful discharge claims . . . represent an apportionment by the

jury and are not duplicative.” Appendix at 204.

The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

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