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...)
-2-
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.
-3-
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
-4-
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).
-5-
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.
-6-
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.
-7-
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...)
-8-
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.
-9-
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.
-10-