This case is huge: record harassment verdict thrown out by Michigan Supreme Court
AP (via law.com) reports: “Michigan Supreme Court Overturns $21 Million Verdict Against DaimlerChrysler” (by David Eggert)
The case is Gilbert v DaimlerChrysler Corp. (7/22/04) [link is to opinion on Michigan Courts' site]
The verdict was outrageous, and thankfully the court did the right thing. May this decision receive more coverage than all the big harassment verdicts combined.
Continue for my excerpts from the article and opinion, and further comments
The AP story says:
The Michigan Supreme Court threw out a $21 million verdict against DaimlerChrysler AG in a sexual harassment case brought by an autoworker, saying the amount was “so excessive and so clearly the product of passion and prejudice.” . .
The judgment was believed to be one of the largest awards to a single sexual harassment plaintiff.
Linda Gilbert . . . claimed . . . co-workers called her cruel names rarely uttered in mixed company and left sexually explicit cartoons and photos on and near her locker . . .
Note: she did not claim anyone propositioned or touched her; just that they made her see and hear things (details below) that, quite frankly, adults ought to be able to handle (which is not to say I condone it, but it should not be the stuff of lawsuits, let alone multi-million dollar verdicts, IMHO.)
She said she endured the sexual harassment for years . . . But DaimlerChrysler said Gilbert disclosed a number of allegations only after she sued and said it did all it could with the knowledge it had. In five of the six incidents Gilbert reported, she withheld the names of those she thought were responsible, DaimlerChrysler said.
This is an absolutely typical pattern. It’s why the Faragher affirmative defense of failure to report is so critical.
No excuses: you got a problem, we want to know about it so we can fix it. If you don’t tell us about it, don’t go crying to the EEOC and courts.
“The jury’s verdict unmistakably reflects passion rather than reason and prejudice rather than impartiality, “the court said.
[Three] Justices . . . dissented . . . They agreed the jury award was excessive but argued that the trial court judge could reduce Gilbert’s award rather than prepare for a new trial. . .
Gilbert sued in 1994. She won her settlement [verdict] in 1999, and it has been under appeal ever since.
There’s a lesson here also. That’s ten years of her life, and now she has to face a new trial (another 10 years, with appeals?). Assuming it was offered, she should have taken $50,000, give or take, and ran with it. In most individual plaintiff employment case, I say if you can buy a shiny new car with the amount offered, take it with a grin. Surely she could have got enough for a nice Chrysler or maybe Mercedes, especially after the verdict.
Wonder if both sides will be smart enough now to settle?
She was believed to be the first and for many years only female millwright at Chrysler’s Jefferson North Assembly Plant in Detroit. Read more
Quite typical to see harassment cases where females are breaking into all-male workplaces. If you’re dealing with such lopsided ratios, redouble your efforts to prevent harassment.
From the court’s opinion itself, some great stuff (this is long, even for me, but hey, it’s a 55-page majority opinion):
The $21 million verdict awarded, according to plaintiff, barely compensates her for the lasting effects of the sexual harassment she endured as an employee of defendant, DaimlerChrysler, by whom she is still employed and earning almost $100,000 a year.
She contended during her trial that defendant’s failure to deal adequately with sexual harassment in her plant led to a permanent change in her “brain chemistry” and a relapse into substance abuse and depression, and that these conditions will soon lead to her untimely and excruciating death.
The foundation for this theory of recovery was laid by the expert opinion testimony of a social worker who had a longstanding relationship with plaintiff’s counsel. This witness not only lacked any training, education, or experience in medicine, but also testified falsely about his credentials. . . .
Plaintiff’s counsel evoked images of physical abuse and torture, compared his client to survivors of the Holocaust, and argued that defendant DaimlerChrysler thought of itself as “God Almighty,” exempt from the legal norms that govern others. Thus, in defendant’s view, the verdict was the product of inflammatory rhetoric, unscientific “expert” testimony, fraud on the court, and attorney misconduct.
We granted leave to appeal in order to determine whether the verdict was a legitimate estimate of plaintiff’s losses, as plaintiff contends, or whether it was, as defendant argues, an unjust, excessive award procured through systematic misconduct by plaintiff’s trial counsel and supported by dubious evidence.
By this point, can anyone have any doubt as to the answer?
A careful review of the record reveals that plaintiff’s trial counsel engaged in a sustained and deliberate effort to divert the jury’s attention from the facts and the law. In their stead,counsel interposed misleading argument, prejudice-baiting rhetoric, and pleas for punitive damages. This rhetoric had its intended result: the jury’s verdict unmistakably reflects passion rather than reason and prejudice rather than impartiality.
Here’s a rundown of the harassment incidents alleged:
A lewd cartoon taped to her toolbox depicting a woman in a bar engaged in an “arm-wrestling” match with a man’s penis. Plaintiff’s name was above the woman, and that of a coworker was written on the man.
A few weeks later, plaintiff found a Polaroid photograph of a penis on her toolbox.
On the basis of these two incidents, plaintiff initiated a lawsuit. After filing her lawsuit, plaintiff reported several other incidents that occurred while the suit was pending:
Well over a year after the last incident, she found a vulgar cartoon entitled “Highway Signs You Should Know” taped to her locker (it had a number of lewd drawings, each apparently meant sexually to illustrate “highway signs” such as “Dead End” and “Men at Work.”)
She also reported at this time that she had found an article by
“Dr. Ruth” taped to her locker one week before the cartoon. The article was a response to a man complaining that his penis was sore from having sexual intercourse too frequently.Five months later, plaintiff reported that she found a lewd and misogynistic “poem” on a bulletin board. Unfortunately for our curiousity, the court chose not to further describe the poem, citing to the unpublished court of appeals decision, where it was quoted in full.
A coworker made references to his “big meat” in front of her.
Some action was taken after each report. Only the last one had an identifiable perpetrator, and he was reprimanded for his 7th grade nonsense (or would that be more like 9th grade?).
Some other unreported incidents presented at trial over the defense objections were:
A coworker mentioned he would like to hold a ladder for plaintiff if she were wearing a dress.A coworker called her a “bitch” during a card game.
Her toolbox was “blocked” when coworkers intentionally placed
other equipment in front of it.Some coworkers ignored her or made false claims to get her in trouble with management.
A misogynistic cartoon was taped to her toolbox with the word “bitch” written on the tape.
A Penthouse article called “Why Men Have So Many Sperm” was
set on a table next to her beverage.A liquid—which plaintiff now asserts was urine—was found on her
chair.
This was no doubt an unpleasant series of events, which I do not mean to minimize by saying there’s no way it should be a million dollar (or even 6-figure) case.
It is not so easy for management when these anonymous incidents occur. Who are you supposed to discipline? Do you use Abu Ghraib (or NYPD Blue) interrogation techniques to ID the perp? Do you dust the cartoons, etc. for fingerprints?
Apparently the bulk of the huge award was for emotional distress, not punitives. In finding this excessive in comparison to similar cases, the court said:
Plaintiff argues that this discrepancy between her verdict and every other sexual harassment verdict in United States simply reflects the jury’s recognition that defendant’s conduct was much, much worse than that of any other defendant in a sexual harassment case. While we have no doubt that plaintiff encountered truly ugly conduct at Chrysler given the evidence and testimony adduced at trial, we cannot accept the argument that plaintiff’s was the worst case of sexual harassment in the history of the country that has resulted in a verdict.A survey of verdicts rendered in other sexual harassment suits reveals that plaintiffs who endure sexual harassment in its most aggressive form—unwanted touching and persistent, predatory sexual advances—uniformly have received far less in compensatory damages than the amount awarded to plaintiff. For example, in Griffin v City of Opalocka, a party who alleged that she was sexually harassed during a four-month period and was raped by her manager was awarded $2 million. And in Grow v W A Thomas Co, the plaintiff alleged that she was subjected to “sexually explicit comments and unwanted kissing and groping” over several years recovered $192,684.30.
Turning to the factor of “passion and prejudice,” the court said:
One of counsel’s tactics . . . was his repeated attempts to equate plaintiff with the victims of the Holocaust. . .This association began during the testimony of plaintiff’s expert . . . , when [he] testified that plaintiff’s psychological state was akin to that of concentration camp survivors.
Plaintiff’s counsel further developed this theme during his closing argument:
Never again. Never again. That is a line now used by the sabreurs [sic; sabras] in Israel, the land of Israel, to mean that the unspeakable horrors that were perpetrated on the people of Israel, on the Jews, must never be forgotten and must never happen again. Never again. Never again [follow link to Jewish "Never Again page that should illuminate why the analogy between systematic genocidal murder and juvenile locker room sexual talk and cartoons is so way outrageous -- and personally highly offensive to me, as a child of Holocaust survivors].
This recurring rhetorical theme was especially virulent given the context of plaintiff’s trial. In 1998, Chrysler had merged with Daimler Benz AG, a German automobile manufacturer. . .
[C]ounsel’s closing argument had a clear rhetorical aim of making defendant’s German ownership a critical issue in the minds of the jurors. By associating plaintiff with those who had endured inhuman treatment in concentration camps, counsel likened defendant DaimlerChrysler—which, as the jury was informed, was partially under German ownership—with the Nazis.Honestly, I think the court maybe stretched a bit to put together this passion and prejudice point. The bottom line was there was no way it made sense to allow such a verdict to stand, and the court pieced together lots of individually less-than-overwhelming arguments to make a persuasive whole.
The opinion goes on and on, with a lengthy expert witness discussion perhaps worth reading for those faced with BS psych experts on emotional distress or otherwise fascinated with the psych expert witness scene. Read the opinion
