Baldwin v. McConnell

Present: All the Justices

ROBERT BALDWIN

v. Record No. 061050 OPINION BY JUSTICE DONALD W. LEMONS
April 20, 2007
JAMES L. MCCONNELL

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge

In this appeal, we consider whether the trial court

abused its discretion in ordering remittitur of a jury award

of compensatory and punitive damages.

I. FACTS AND PROCEEDINGS BELOW

For approximately twenty years, Robert Alexander Baldwin

("Baldwin") and James L. McConnell ("McConnell") were both

employed at General Electric Company ("GE"). GE had a "zero

tolerance" policy which provided that any violent behavior at

the work place would result in termination of employment.

While employed at GE, a physical altercation occurred between

McConnell and Baldwin. This incident resulted in both

parties' employment being terminated under the "zero

tolerance" policy. Each party blamed the other party for

causing the altercation. McConnell sued Baldwin, seeking

compensatory and punitive damages for assault and battery.1

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The motion for judgment included other claims and
included "General Electric Energy" and "General Electric
Company" as defendants. The only parties and claims relevant
to this appeal are the allegations of McConnell against
Baldwin and Baldwin against McConnell, each seeking
compensatory and punitive damages for assault and battery.
Baldwin filed a counterclaim for assault and battery, seeking

to recover $100,000 in compensatory damages and $350,000 in

punitive damages.

At trial, Baldwin testified that while McConnell and he

were in a meeting with other co-workers and a "shop manager,"

McConnell stated that Baldwin "need[ed] a piss test." Co-

workers "chuckl[ed]" and "laugh[ed]" at the comment. Baldwin

felt that McConnell's statements at the meeting had

"insinuate[d] in front of [his] co-workers and manager that

[Baldwin was] using illegal controlled substances." Baldwin

also testified that he was "embarrassed" because McConnell

"humiliate[d him] in front of management as well as [his] co-

workers."

The next day, McConnell made a similar comment to

Baldwin. Baldwin responded, "if anybody needs a piss test

around here, it's you." Baldwin then decided to leave for the

day. McConnell asked Baldwin to come over to him, but Baldwin

walked out the door. After exiting the building, Baldwin

turned around and came back towards the exit door. "[T]he

instant that [Baldwin] stepped in front of the door,"

McConnell put his hands on Baldwin's chest and slammed Baldwin

to the concrete sidewalk, causing Baldwin's cap and safety

glasses to go "flying." Baldwin hit his head on the concrete,

and his "tailbone" hit the ground. Consequently, Baldwin

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suffered a "knot" on his head and soreness to both his head

and tailbone. Baldwin also testified that he was humiliated

knowing that his co-workers saw him get knocked down. More

specifically, Baldwin felt "it [was] an insult to [his]

dignity."

Additionally, Baldwin testified that McConnell had "hurt

[his] family" because he had been the "sole provider" for the

family and that he had lost his job because of the altercation

with McConnell. During cross-examination, McConnell testified

that he owned stock in GE worth approximately $343,506.29.

The jury denied recovery to McConnell; however, on

Baldwin's counterclaim, the jury awarded $240,000 in

compensatory damages and $100,000 in punitive damages.

Because the compensatory damages award was above Baldwin's ad

damnum of $100,000, the trial court, without objection,

reduced the compensatory damages award to $100,000. On a

motion for remittitur, the trial court found that "the jury's

verdict shock[ed] the conscience of the [c]ourt," evidenced

that "the jury misconceived or misconstrued the facts or the

law," and that the "award [was] so out of proportion to the

injuries" that "their verdict was not the product of a fair

and impartial decision." The trial court further reduced the

compensatory damages award to $1,000, and the punitive damages

award to $10,000.

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 Baldwin filed a timely notice of appeal to this Court.

We granted Baldwin's petition for appeal on three assignments

of error:

1. The Trial Court abused its discretion when it failed
to consider evidence relevant to a reasoned
evaluation of the damages.

2. The Trial Court abused its discretion when it failed
to determine if the jury award was reasonably related
to the damages disclosed by the evidence.

3. The Trial Court acted improperly in remitting the
punitive damages awarded by the jury.

II. ANALYSIS

A. Compensatory Damages

With regard to remittitur of compensatory damages, we

stated in Shepard v. Capitol Foundry of Va., Inc., 262 Va.

715, 720-21, 554 S.E.2d 72, 75 (2001) (quotations and

citations omitted), that:

When a verdict is challenged on the basis of
alleged excessiveness, a trial court is
compelled to set it aside if the amount awarded
is so great as to shock the conscience of the
court and to create the impression that the
jury has been motivated by passion, corruption
or prejudice, or has misconceived or
misconstrued the facts or the law, or if the
award is so out of proportion to the injuries
suffered as to suggest that it is not the
product of a fair and impartial decision.
Setting aside a verdict as excessive . . . is
an exercise of the inherent discretion of the
trial court and, on appeal, the standard of
review is whether the trial court abused its
discretion.

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Determining whether a trial court abused its discretion in

ordering remittitur of compensatory damages involves two

steps:

First, we must find in the record not only the
trial court's conclusion that the verdict was
excessive, but also an explanation
demonstrating that the court, in reaching its
conclusion, considered factors in evidence
relevant to a reasoned evaluation of the
damages. Second, we must ascertain whether the
amount of recovery after remittitur bears a
reasonable relation to the damages disclosed by
the evidence.

Both of these steps require an evaluation
of the evidence relevant to the issue of
damages. In making that evaluation, the trial
court, as well as this Court, is required to
consider the evidence in the light most
favorable to the party that received the jury
verdict.

Id. at 721, 554 S.E.2d at 75 (quotations and citations

omitted).

In this case, the jury awarded Baldwin $240,000 in

compensatory damages and $100,000 in punitive damages. The

trial court ultimately reduced Baldwin's damages to $1,000 in

compensatory damages and $10,000 in punitive damages. In

remitting the jury's award, the trial court did not

distinguish between the type of damages and the trial court's

explanation did not demonstrate that it considered the

evidence in the light most favorable to Baldwin.

Instruction number 31 instructed the jury as follows:

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 If you find your verdict in favor of
McConnell, Baldwin or both, then in determining
the damages to which they may be entitled you
may consider any of the following that you
believe by the greater weight of the evidence
was caused by an assault and battery: Any
shame, humiliation, embarrassment or indignity
to feelings that he suffered.

You may also consider in awarding damages
the insulting character of the injury, the
reason for the injury and any other
circumstances which make the injury more
serious, if any of these things are shown by
the evidence.

Your verdict shall be for such sum as will
fairly and fully compensate the parties for the
damages sustained as a result of the assault
and battery.

(Emphasis added.) The instruction, which was given without

objection and became the law of the case, permitted the jury

to consider "[a]ny shame, humiliation, embarrassment or

indignity" that Baldwin suffered as a result of McConnell's

assault and battery. The instruction's broad language also

permitted the jury to consider "the insulting character of the

injury, the reason for the injury and any other circumstances

which make the injury more serious. (Emphasis added.)

However, in remitting the jury's verdict for compensatory

damages, the trial court did not address the humiliation

Baldwin suffered, the insulting character of the injury or

"other circumstances which make the injury more serious."

We hold that the trial court abused its discretion in not

complying with the first step of the analysis required in

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Shepard, namely an analysis of the damages awarded by the jury

upon consideration of the evidence in the light most favorable

to Baldwin. Additionally, the trial court failed to

"ascertain whether the amount of recovery after remittitur

bears a reasonable relation to the damages disclosed by the

evidence" as required by the second step of the Shepard

analysis. 262 Va. at 721, 554 S.E.2d at 75 (quotation

omitted); see also Smithey v. Sinclair Refining Co., 203 Va.

142, 146, 122 S.E.2d 872, 875 (1961) ("In a case where the

verdict of a jury is attacked on the ground that it is

excessive, . . . [i]f the verdict merely appears to be large

and more than the trial judge would have awarded had [he] been

a member of the jury, it ought not to be disturbed.").

B. Punitive Damages

While we review remittitur of compensatory damage awards

utilizing "abuse of discretion" as the standard of review, we

review the remittitur of punitive damage awards de novo upon

independent review of the record.

The jury was instructed in pertinent part:

If you find that the plaintiff and or
defendant Baldwin is entitled to be compensated
for his damages, and if you further believe by
the greater weight of the evidence that the
other party acted with actual malice toward the
opposing party or acted under circumstances
amounting to a willful and wanton disregard of
the parties' rights, then you may also award
punitive damages to punish that party for his

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 actions and to serve as an example to prevent
others from acting in a similar way.

With regard to remittitur of a jury award of punitive damages,

we stated in Poulston v. Rock, 251 Va. 254, 263, 467 S.E.2d

479, 484 (1996) (quotation omitted), that

in reviewing the order of a trial court
imposing or refusing to impose a remittitur of
punitive damages in a defamation action, we
shall make an independent examination of the
entire record to determine whether the trial
court acted properly. In doing so, we will give
substantial weight to the trial court's action
and affirm it, unless, from our view of the
record, the trial court acted improperly.

Additionally, we stated:

Review of the amount of punitive damages
includes consideration of reasonableness
between the damages sustained and the amount of
the award and the measurement of punishment
required, whether the award will amount to a
double recovery, the proportionality between
the compensatory and punitive damages, and the
ability of the defendant to pay.

Id. (citations omitted). While Poulston involved punitive

damages in the context of defamation, the analysis applied in

Poulston extends beyond defamation actions.

Other states confirm this analytical approach. For

example, in Management Computer Servs. v. Hawkins, Ash, Baptie

& Co., 557 N.W.2d 67, 70 (Wis. 1996), the Supreme Court of

Wisconsin addressed claims of breach of contract, conversion,

and unjust enrichment, and the award of punitive damages. The

court considered whether the trial court correctly ordered a

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new trial on punitive damages unless the prevailing party

accepted reduction in the award from $1.75 million to $50,000.

Id. at 74-75, 80. With regard to remittitur, the Supreme

Court of Wisconsin stated that the trial court "set forth

conclusory reasons for reducing the jury's punitive damages

award" and did not "analyze the evidence or set forth its

reasons for ordering remittitur with particularity." Id. at

81. Therefore, the Supreme Court of Wisconsin reviewed "the

entire record ab initio to determine whether the jury's award

[wa]s excessive, and if it [wa]s, what amount of punitive

damages [wa]s reasonable." Id. Furthermore, it stated

in determining whether an award of punitive
damages is excessive, courts should consider
the grievousness of the acts, the degree of
malicious intent, whether the award bears a
reasonable relationship to the award of
compensatory damages, the potential damage that
might have been caused by the acts, the ratio
of the award to civil or criminal penalties
that could be imposed for comparable
misconduct, and the wealth of the wrongdoer.
. . .

In addition, a reviewing court must
consider the reasonableness of punitive damages
on a case-by-case basis, considering the
relevant circumstances in each particular case.

Id. at 82.

In the case at bar, the trial court's explanation for

granting McConnell's motion for remittitur did not distinguish

between compensatory and punitive damages. "The general rule

is that there is no fixed standard for the measure of

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exemplary or punitive damages and the amount of the award is

largely a matter within the discretion of the jury." Worrie

v. Boze, 198 Va. 533, 544, 95 S.E.2d 192, 201 (1956). Philip

Morris Inc. v. Emerson, 235 Va. 380, 414-15, 368 S.E.2d 268,

287 (1988). Furthermore, as we explained in Poulston,

judicial review of the amount of punitive damages upon motion

for remittitur requires:

1. consideration of reasonableness between the damages
sustained and the amount of the award,

2. the measurement of punishment required,

3. whether the award will amount to a double recovery,

4. the proportionality between the compensatory and
punitive damages, and

5. the ability of the defendant to pay.

Poulston, 251 Va. at 263, 467 S.E.2d at 484.

The jury awarded $240,000 in compensatory damages. But

for the ad damnum clause, the amount would not have been

reduced to $100,000 before remittitur. We will consider the

jury's punitive damages award in light of the original award

of $240,000.

There was ample evidence of actual malice and willful and

wanton behavior on the part of McConnell. Additionally, with

regard to the punishment required for such behavior and

consideration of the deterrent effect upon others who may act

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in similar fashion, we cannot say that the jury award is

excessive.

The award of punitive damages according to the jury

instructions was based upon malice and willful and wanton

conduct while the compensatory award was based upon actual

injury sustained as well as "shame, humiliation, embarrassment

or indignity to feelings." According to instructions to the

jury, the compensatory damages were also based upon "the

insulting character of the injury, the reason for the injury

and any other circumstances which made the injury more

serious." Given the clear determination of the basis for each

award and the ample evidence supporting each award, our

independent review of the record does not suggest double

recovery in this case.

The relationship between the award of $240,000 in

compensatory and $100,000 in punitive damages is not

unreasonable or strikingly out of proportion. We note that

the punitive damage award approved in Poulston was two and

one-half times (250%) the compensatory award while here the

punitive damage award is less than one-half (41%) of the

jury's compensatory award.2

2
See Philip Morris USA v. Williams, ___ U.S. ___, ___,
127 S.Ct. 1057, 1061-62 (2007) (suggesting that punitive
damages two, three or four times the size of the compensatory
damage award accord with "longstanding historical practice"
and that punitive damages which multiply the compensatory
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 McConnell's financial condition is relevant on the issue

of punitive damages and was properly considered by the jury.

Hamilton Dev. Co. v. Broad Rock Club, 248 Va. 40, 44, 445

S.E.2d 140, 143 (1994). The jury was permitted to consider

the value of McConnell's stock, an indication of his ability

to pay, in determining the amount of the punitive damages.

In this case, our independent review of the punitive

damages award leads us to conclude that the award should not

have been set aside.3 Poulston, 251 Va. at 263, 467 S.E.2d at

484. We cannot say that a punitive damages award of $100,000

shocks the conscience of the Court or is otherwise

inappropriate in light of McConnell's egregious conduct.

Accordingly, we hold that the jury's award of $100,000 in

punitive damages was not excessive as a matter of law.

III. CONCLUSION

award by "single digits" are more likely to comport with due
process than higher punitive awards), citing State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).
3
We acknowledge that many courts analyze punitive damages
awards and remittitur based on due process concerns because
"punitive damages are quasi-criminal punishment." Pacific
Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 54 (1991). See
Philip Morris USA, ___ U.S. at ___, 127 S.Ct. at 1061-62;
State Farm, 538 U.S. at 425; BMW of North America, Inc. v.
Gore, 517 U.S. 559, 575-85 (1996). In this case, however,
there has been no challenge to the award of punitive damages
based upon denial of due process. See generally Schneckloth
v. Bustamonte, 412 U.S. 218, 235-36 and nn. 16-17 (1973). See
also Nusbaum v. Berlin, 273 Va. 385, 406, 641 S.E.2d 494, 505
(2007) (appellate review of due process arguments waived by
failure to raise the constitutional issue below); Westvaco

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 Because the trial court did not conduct the analysis

required by Shepard for remittitur of an award of compensatory

damages, we hold that the trial court abused its discretion.

Upon a de novo review of the record using the analysis

required by Poulston for remittitur of an award of punitive

damages, we hold that the trial court erred in remitting the

punitive damage award. Accordingly, we will reverse the

judgment of the trial court, reinstate the jury verdict as

reduced to the ad damnum clause of plaintiff's pleading, in

the amount of $100,000 as to compensatory damages and $100,000

as to punitive damages, and enter final judgment for Baldwin.

Reversed and final judgment.

Corp. v. Columbia Gas of Virginia, Inc., 230 Va. 451, 459, 339
S.E.2d 170, 174 (1986) (same).
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