331 F. Supp. 3d 1173
D. Or.2018Background
- Plaintiff Max Zweizig, former IT director of Northwest Direct Teleservices (NDT), sued defendant Timothy Rote claiming Rote aided and abetted NDT in retaliating against Zweizig by publishing a blog after Zweizig prevailed in prior arbitration on a whistleblower retaliation claim.
- All corporate defendants defaulted; Rote proceeded to a two‑day jury trial and the jury awarded $1,000,000 in noneconomic damages to Zweizig.
- Rote (pro se) moved under Fed. R. Civ. P. 59 and 60 for a new trial or to vacate judgment, asserting improper closing argument, insufficient evidence, flawed jury instructions, erroneous evidentiary rulings, juror contact, and newly discovered evidence.
- Rote also objected to the form of judgment, arguing Oregon’s noneconomic damages cap, ORS 31.710, limits recovery to $500,000 and that applying the cap would violate the Oregon Constitution's remedy clause.
- The court denied the new trial motion on all grounds but held ORS 31.710 applies to employment claims seeking purely emotional/noneconomic damages and capped Zweizig’s award at $500,000; the cap was deemed constitutional as applied here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion for new trial based on improper closing argument | Closing was proper and any remarks did not prejudice verdict | Closing urged the jury to "send a message" and impermissibly sought punitive effect | Denied; remarks not so pervasive as to show jury influenced by passion/prejudice and plaintiff testimony supported damages |
| Sufficiency of evidence for liability | Evidence (blog contents, timing, license, testimony) supports aiding/abetting retaliation | Insufficient evidence to show Rote aided/abeted or acted with retaliatory motive | Denied; jury verdict not against clear weight of evidence |
| Jury instructions and preserved objections | Instructions correct and consistent with Oregon law | Some instructions (causation) misstated law; objections not preserved | Denied; no plain error—instructions consistent with Oregon standards for "substantial factor" causation |
| Applicability and constitutionality of ORS 31.710 cap | Cap inapplicable to employment claims for purely emotional injury or is unconstitutional as applied | Statute covers damages "arising out of bodily injury, including emotional injury" and is constitutional here | Held applicable to pure emotional injury in employment claims; cap reduces $1,000,000 award to $500,000 and is constitutional as applied (not a paltry remedy here) |
Key Cases Cited
- Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir.) (standards for Rule 59 new trial review)
- Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir.) (grounds for new trial: verdict contrary to clear weight of evidence, false evidence, or miscarriage of justice)
- Hemmings v. Tidyman's Inc., 285 F.3d 1174 (9th Cir.) (high threshold for improper closing argument raised post‑trial)
- Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33 (U.S.) (trial court discretion to grant a new trial)
- Tenold v. Weyerhaeuser Co., 127 Or. App. 511 (Or. Ct. App.) (application of ORS 31.710 in employment‑related tort claims discussed)
- Vasquez v. Double Press Mfg., Inc., 288 Or. App. 503 (Or. Ct. App.) (Article I, §10 remedy‑clause analysis of ORS 31.710; cap unconstitutional for grievous injuries)
- Rains v. Stayton Builders Mart, Inc., 289 Or. App. 672 (Or. Ct. App.) (applied Vasquez; cap unconstitutional where it leaves only a paltry remedy)