ORDER
Pending before the court are the defendant’s motion for judgment as a matter of law or, alternatively, that the judgment be vacated (doc. 79); defendant’s motion for remittitur and constitutional reduction of punitive damages award (doc. 80), and the defendant’s motion for a new trial (doc. 81), to which the plaintiff filed a memorandum in opposition to defendant’s motion for new trial, and a memorandum in opposition to the defendant’s motion for judgment as a matter of law and motion for remittitur (docs. 93 and 94), and the defendant thereafter filed a reply (doe. 98). Having considered said motions, responses and reply, the court finds as follows:
I. Motion for Judgment as a Matter of Law (doc. 79)
The Eleventh Circuit has instructed that In reviewing the district court’s grant of a JNOV, our standard of review is the same as that used by the district court to determine whether to grant a JNOV in the first instance. As we stated in Castle v. Sangamo Weston, Inc.,837 F.2d 1550 ,1558 (11th Cir.1988):
All of the evidence presented at trial must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion......” Where substantial conflicting evidence is presented such that reasonable people “in the exercise of impartial judgment might reach different conclusion, [sic]” the motion should be denied. (Citations omitted).
Simon v. Shearson Lehman Bros., Inc.,
The defendant’s motions are no more than a rehashing of the evidence adduced at trial and heard by the jury. In essence, the defendant does not agree with the findings of the jury, particularly the findings that defendant’s actions in investigating plaintiffs complaints were “willful” as that term is used in the Fair Credit Reporting Act; that defendant’s method of investigating complaints was not reasonable; and that the jury did not give great weight to certain testimony of defendant’s witnesses. The Seventh Amendment prohibits a re-examination of a jury’s determination of the facts.
Johansen v. Combustion Eng’g, Inc.,
The defendant argues that the plaintiff failed to offer legally sufficient evidence to show a cognizable injury, based on evidence admitted over objection at trial. Defendant also asserts that its witness at trial testified that the evidence in question, specifically the denial of credit, was not from a time period when defendant’s actions would have affected plaintiffs credit score. Defendant’s motion for judgment as a matter of law (doc. 79) at 9; defendant’s motion for remittitur (doc. 80) at 3. The defendant further challenges the verdict by its assertion that the plaintiff failed to offer legally sufficient evidence that the plaintiffs injuries were caused by the defendant. Id., at 16.
The jury found defendant’s witness’s testimony regarding defendant’s actions’ impact on the plaintiff and his credit score not to be credible. It is within the province of the jury to pick which evidence to believe. See e.g.,
St. Luke’s Cataract and Laser Institute, P.A. v. Sanderson,
The defendant also criticizes the “inference of an actual denial” with regard to the plaintiff not obtaining a mortgage as “pure speculation.” Doc. 79, at 10. However, this too, was a question for the jury. The court may not “assume the jury’s role of weighing conflicting evidence or inferences, or of assessing the credibility of witnesses.”
Cornell v. CF Center, LLC,
In its motion for judgment as a matter of law, the defendant’s criticisms of the jury’s verdict focus on a lack of direct proof of various elements on which the plaintiff bore the burden. However, the law does not require direct proof, but rather permits evidence of circumstances from which the fact to be proved is a legitimate inference.
See Boutwell v. Federal Mogul Corp.,
The same is true for defendant’s assertion that plaintiffs evidence of emotional distress was insufficient as a matter of law. Doc. 79 at 12;
see also
doc. 80. When a jury awards damages for emotional distress, the court must be “particularly deferential to the fact finder’s determination of compensatory damage awards for intangible, emotional harms because the harm is so ‘subjective and evaluating it depends considerably on the demeanor of the witnesses.’ ”
Griffin v. City of Opar-Locka,
Defendant argues that because plaintiff showed no actual credit injury, he could not recover for emotional distress. Defendant ignores the fact that the FCRA contains no requirement that the plaintiff prove an out of pocket loss in order to recover actual damages.
See Guimond,
The Eleventh Circuit has never precisely delineated the factors that a court should consider in determining whether the plaintiffs evidence of emotional distress is sufficient to support the jury’s award of compensatory damages for emotional distress, particularly where, as here, the plaintiffs damages evidence consists chiefly of his own testimony. However, other district courts in this Circuit have clearly held that damages for mental distress are recoverable under the FCRA even if the plaintiff has suffered no out of pocket expenses;
Moore v. Equifax Infor
For the reasons set forth above, the court declines to ignore the findings of the jury. The motion for judgment as a matter of law (doc. 79) is therefore DENIED.
II. Motion for Remittitur (doc. 80)
As with its motion for judgment as a matter of law, in its motion for remittitur (doc. 80), the defendant asserts both that the actual damages and the punitive damages awarded by the jury are excessive, based on defendant’s view of the evidence presented at trial. The standard set forth for reviewing jury awards is whether the award “shocks the conscience of the court.”
See e.g., Simon v. Shearson Lehman Bros., Inc.,
The jury disagreed with the defendant as to the reasonableness of its procedures. That decision was within the province of the jury. The defendant’s argument now that these same procedures are reasonable does not provide a basis for this court to change the verdict of the jury. Specifically the defendant argues that the actual damage award of $100,000.00 is excessive based on the evidence at trial, and that this court should reduce this amount, as determined by the jury, to the amount of “no more than $25,000, which is still generous.... ” Doc. 80 at 2, 9. This ignores the evidence by the plaintiff that he attempted numerous times across numerous years to have the defendant correct its records. It also ignores evidence of plaintiffs testimony re
The defendant next argues that the punitive damages award of $623,180.00 is “grossly excessive” under the circumstances of this case. Doc. 80 at 10. As the court noted above, the jury found the defendant’s behavior to willful, and assessed damages accordingly.
3
Punitives are aimed not at compensation but principally at retribution and deterring harmful conduct.
Exxon Shipping Co. v. Baker,
Regardless of culpability, however, heavier punitive awards have been thought to be justifiable when wrongdoing is hard to detect (increasing chances of getting away with it), see, e.g., BMW of North America, Inc. v. Gore,517 U.S. 559 , 582,116 S.Ct. 1589 ,134 L.Ed.2d 809 (1996) (“A higher ratio may also be justified in cases in which the injury is hard to detect”), or when the value of injury and the corresponding compensatory award are small (providing low incentives to sue), see, e.g., ibid. (“[L]ow awards of compensatory damages may properly support a higher ratio ... if, for example, a particularly egregious act has resulted in only a small amount of economic damages”); 4 Restatement § 908, Comment e, p. 465 (“Thus an award of nominal damages ... is enough to support a further award of punitive damages, when a tort ... is committed for an outrageous purpose, but no significant harm has resulted”).
Exxon Skipping Co.,
The plaintiff provides ample evidence that many. FCRA eases have produced either similar or higher punitive awards. Plaintiffs response (doc. 93) at 9. Both the plaintiff and the defendant cite to
BMW of North America v. Gore,
The Supreme Court has held that due process forbids the imposition of grossly excessive or arbitrary awards of punitive damages.
See e.g., Goldsmith v. Bagby Elevator Co. Inc.,
The first consideration is the degree of reprehensibility, and it is “the most important indicium.”
State Farm Mut. Auto. Insurance. Co. v. Campbell,
In the facts before this court, the degree of reprehensibility is great, as defendant has stood by its faulty system for years, insisting its procedures are reasonable, in the face of obvious evidence otherwise. Defendant asserts its conduct must not be reprehensible under the
Gore
and its progeny standards, because there was no physical injury. Doc. 80, at 11. The plaintiff responds that violations of the FCRA are economic in nature, but Congress still saw fit to permit punitive damages for such claims. Doc. 93, at 11. Hence, the absence of physical harm does not weigh strongly against punitive damages in such cases.
Saunders v. Branch Banking and Trust Co. of VA.,
Under the defendant’s system, when a consumer disputes a debt, 95% of such disputes are checked by a computer merely making sure the disputed debt is the same as the information defendant has in its system already. Upon such review, defendant then asserts the debt is valid each and every time. As plaintiff points out, defendant receives about 8,000 disputes per week and for 95% of those disputes, defendant checks its own records as a means of validating the debt, although the debts are all purchased, at discount, from various creditors who have been unable to collect on them. The jury determined defendant’s conduct to be reprehensible. This court will not set that finding
The second
Gore
guidepost is the ratio of punitive damages to actual harm inflicted on the plaintiff. The “proper inquiry is whether there is a reasonable relationship between the punitive damages award and
the harm, likely to result
from the defendant’s conduct as well as the harm that actually has occurred.”
Gore,
In this case, the jury awarded punitive damages of $623,180.00 and compensatory damages of $100,000.00. Since this yields a ratio of punitive to compensatory damages of approximately 6.23:1, the court finds this ratio does not suggest an excessive award. It is in “the single digits.” Single-digit multipliers are “more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with [higher] ratios [of punitive to compensatory damages] .... ”
Goldsmith,
The third guidepost is the disparity between the punitive damages award and the “civil penalties authorized or imposed in comparable cases.”
BMW of North America, Inc. v. Gore,
Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award. TXO,509 U.S., at 458 ,113 S.Ct., at 2720 . Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiterate our rejection of a categorical approach. Once again, “we return to what we said ... in Haslip: ‘We need not, and indeed we
cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that [a] general concer[n] of reasonableness ... properly enter[s] into the constitutional calculus.’ ” Id., at 458, 113 S.Ct, at 2720 (quoting [Pacific Mut. Life Ins. Co. v.] Haslip, 499 U.S. [1], at 18, 111 S.Ct. [1032], at 1043 [113 L.Ed.2d 1 (1991) ]). In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis. When the ratio is a breathtaking 500 to 1, however, the award must surely “raise a suspicious judicial eyebrow.” TXO, 509 U.S, at 481,113 S.Ct, at 2732 .
Gore,
The defendant argues that the “civil penalty would be only $17,500” (figured as five violations times $3,500.00 per violation) although to reach this amount the defendant examined the civil penalties authorized for suits by the Federal Trade Commission. Even assuming this is an appropriate measure, the court must also consider “whether the punitive damages achieved their ultimate objectives of deterrence and punishment, without being unreasonable or disproportionate.”
Southern Union Co. v. Irvin,
Weighing the third
Gore
factor against the purpose of punitive damages, the Third, Fourth, and Sixth Circuits have held that this factor is not particularly useful to the due process analysis in a FCRA case.
See Cortez v. Trans Union, LLC,
Under the FCRA, the jury could award statutory damages even if it found no actual damages, or actual damages if the same were found to exist, and the jury was so charged. The threat of punitive damages under § 1681n of the FCRA is the primary factor deterring erroneous reporting by the credit reporting industry.
See Yohay v. City of Alexandria Employees Credit Union,
The defendant next seeks to have this court reduce the amount of the judgment by amounts plaintiff received from other violators of the FCRA. However each of the sums recouped by plaintiff by
In consideration of the foregoing, the defendant’s motion for remittitur and constitutional reduction of punitive damages award (doc. 80) is DENIED.
III. Motion for a New Trial (doc. 81)
Midland further seeks to have this court grant a new trial or alter, amend or vacate its judgment under Rule 59, Fed.R.Civ. Pro. The defendant asserts the court erred in evidentiary rulings and erred in instructing the jury, and also adopts all its arguments set forth in the Motion for Judgment as a Matter of Law,
supra.
The court may only grant a motion for new trial when “the verdict is against the clear weight of the evidence ... or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.”
Hewitt v. B.F. Goodrich Co.,
A. Evidentiary Rulings
Concerning the court’s evidentiary rulings, the defendant must establish not only that they erroneous, but also that they “resulted in a substantial prejudicial effect.”
Molinos Valle Del Cibao, C. por A. v. Lama,
1. American Express letter
The defendant again challenges the court’s admission of a letter plaintiff received from American Express denying him credit. The court heard defendant’s objections to this letter before trial, and again during trial, and found the letter to be admissible. 4 In its reply, defendant argues that because the American Express denial letter did not state outright that defendant’s collection account was the reason for the denial of credit, the jury could not infer this fact. However, the letter also stated that “primary factors” affecting the score included “serious delinquency” and “[t]ime since delinquency is too recent” but assert this could have been from other adverse accounts predating the Dell account. See defendant’s reply (doc. 98) at 5. Clearly, the jury was free to conclude otherwise.
Even if such admission was erroneous (which it was not), the plaintiff produced other evidence of credit denials at trial, such as rejections for a mortgage and
2. Previously Dismissed Collection Lawsuit by Defendant against Plaintiff
Prior to this action being filed, defendant sued plaintiff in small claims court in an attempt to collect on the account it had purchased. The court admitted this evidence over defendant’s objection. As the plaintiff argues, at the time defendant purchased the “debt” the statute of limitations on collecting it had expired. Thus, plaintiff theorizes, defendant placed the debt on plaintiffs credit report to attempt to force the plaintiff to pay a debt it otherwise could not collect. The jury was entitled to hear this evidence, and determine for itself whether defendant’s actions were taken with such intent. Additionally, the evidence was relevant to plaintiffs testimony regarding the emotional distress of learning he had been sued for a debt he knew he did not owe. Lastly, the evidence was relevant to the entire time line of plaintiffs relationship with defendant. 5 The defendant is mistaken that only evidence directly related to plaintiffs claim against it is admissible. This has never been the law. Rather, the evidence was relevant under Rule 401, F.R.E., for the reasons set forth above, and others, and the court therefore admitted it. 6
3. Evidence of Defendant’s Parent Company’s Wealth and Organizational Chart
Defendant objects to the court’s admitting portions of the SEC 10-K filed by defendant’s parent company. Doc. 81, at 7. This document was referred to by plaintiffs counsel during opening and closing statements, but no witnesses testified about it. However, this is a publically filed document, referred to during argument without objection. The court also instructed the jury repeatedly that what the attorneys said is not evidence.
The defendant also objects to the court admitting an organizational chart of defendant’s parent company as an exhibit. Doc. 81 at 9. Although again claimed by defendant as irrelevant, the defendant is but one of several “Midland” entities and the evidence concerning their relationship was greatly clarified for the jury by use of this demonstrative aid. Again, defendant asserts that it was not directly relevant to any issue in the case. As just noted by the court, not every piece of evidence admitted has to be directly relevant to the specific claims of the plaintiff. Evidence to help the jury understand how the parties before them got to court and why they are there is certainly relevant. The court finds no error.
The defendant complains the court erred in sustaining plaintiffs objection to a question that was based solely on speculation of what would have happened if certain events had occurred, even though it was not related to what actually happened in this case.
See
doc. 81, at 10. Speculative testimony is generally not admissible because it is not based on the witness’s perception.
See Washington v. Dep’t of Transp., 8
F.3d 296, 300 (5th Cir.1993);
Asplundh Mfg. Div. v. Benton Harbor Eng’g,
B. Instructions to the Jury 1. Duty to Mitigate
Defendant asserts it is entitled to a new trial because the court failed to instruct the jury on the plaintiffs duty to mitigate damages. Doc. 81 at 11. Defendant blames plaintiff for not obtaining a particular document from his bank 7 although (1) his bank told him that was the very document it provided him; (2) plaintiff did not apply his own money to the wrong account; and (3) defendant made no effort at all to check the accuracy of the accounts it purchased. The court thus finds defendant’s argument that the plaintiff had a duty to mitigate his damages by obtaining this very documentation to be frivolous and in contravention of the evidence actually adduced at trial. Additionally, this argument is really one that the plaintiff had an obligation under the FCRA beyond making his disputes to the credit reporting agencies. The plaintiff had no such duties under the law, and defendant’s argument regarding a duty to mitigate is no more than rehashing the pretrial ruling by the court that the plaintiff had no such duty. See docs. 56 and 58.
2. Definition of Investigation
The defendant asserts that the court misdefined the term “investigation” in its jury instruction. Doc. 81 at 13. According to defendant, the court’s definition of this term “provided the jury a definition of a term deliberately undefined in the statute but also defined the term in a way that skewed the case in plaintiffs favor.” Id., at 13-14. The defendant further asserts that “there was absolutely no testimony or other evidence offered to support instructing the jury in this manner, particularly in the specific context of a duty under the FCRA to investigate credit disputes.” Id., at 14.
The court took the definition from
Johnson v. MBNA America Bank, NA,
357
“investigation” is defined as: “[a] detailed inquiry or systematic examination.” Am. Heritage Dictionary 920 (4th ed. 2000); see Webster’s Third New Int’l Dictionary 1189 (1981) (defining “investigation” as “a searching inquiry”). Thus, the plain meaning of “investigation” clearly requires some degree of careful inquiry by' creditors. Further, § 1681s-2(b)(l)(A) uses the term “investigation” in the context of articulating a creditor’s duties in the consumer dispute process outlined by the FCRA. It would make little sense to conclude that, in creating a system intended to give consumers a means to dispute — and, ultimately, correct — inaccurate information on their credit reports, Congress used the term “investigation” to include superficial, un reasonable inquiries by creditors.
Id., at 430-431 (emphasis in original).
The court knows of no rule requiring evidence or testimony before a term used in a jury charge may be defined for a jury, in spite of the defendant’s argument otherwise.
C. The Jury’s Verdict is Against the Great Weight of the Evidence
The court has all ready considered this argument in the context of the defendant’s motion for judgment as a matter of law. Having already found that the jury verdict was not against the weight of the evidence, let alone the “great weight” of the evidence, the court declines to consider this argument yet again.
For the reasons set forth herein, the defendant’s motion for a new trial (doc. 81) is DENIED.
Notes
. The court also defined "willful” for the jury, and set forth two different verdicts for the jury to use based on whether the jury found the defendant’s actions to be negligent or willful. Of course, the court also provided the jury a third verdict form, for the jury to use had it found in defendant’s favor.
. To date, defendant has remained strong in its conviction that its actions were beyond reproach despite the fact that the plaintiff
. The jury was charged on both willful and negligent noncompliance. The verdict form also required the jury to select between negligent and willful noncompliance. The jury completed the section entitled “Plaintiff's claim of Willful Noncompliance.'' The relevant statute states
§ 168In. Civil liability for willful noncompliance
(a) In general
Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of—
(1)(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or (B) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustainéd by the consumer as a result of the failure or $1,000, whichever is greater;
(2) such amount of punitive damages as the court may allow; and
(3) in the case of any successful action to enforce any liability under this: section, the costs of the action together with reasonable attorney’s fees as determined by the court.
15 TJ.S.C. § 1681n (emphasis added).
See also TRW Inc. v. Andrews
. Defendant now objects to this letter for the additional reason that a defense witness testified that defendant's actions would not impact the plaintiff's credit score. Obviously, the jury disbelieved this witness.
. The best demonstration of the relevance of this suit to the time line is in defendant’s motion (doc. 81, at 6). Defendant argues that its prior action against plaintiff is irrelevant because it occurred three months prior to plaintiff's August 2008 notice that he did not owe this debt. Of course, if defendant never attempted to collect this debt, plaintiff would have never known it still existed. Hence the defendant had to take some action before the plaintiff could even exercise his rights under the FCRA. Secondly, defendant admits it did not dismiss its state court action until February 2009, well after plaintiff put defendant on notice it contested this debt.
. In other words, evidence does not occur in a vacuum. Defendant took carefully calculated steps in an attempt to collect a debt that it assumed to be valid. The plaintiff was entitled to produce evidence and testify about all of those steps, even when individually they did not result in a direct FCRA violation.
. The document in question, a transactional detail report, was apparently the only document Dell could use to figure out what Dell did with plaintiff’s money. The fact that the evidence established that Dell, in essence, converted plaintiff's money, then sold his past due account through no fault of the plaintiff, is lost on the defendant. The evidence established that the bank teller did not know what to give the plaintiff other than a bank statement showing that the money in question was taken out of plaintiff's account and sent to Dell. Dell, and then defendant, refused to accept this document. The evidence further established that not until after this action had been filed, and the plaintiff returned to his credit union with his lawyer, did someone at the credit union determine what documentation the plaintiff needed to finally prove to defendant that this account had been paid in full. Additionally, defendant’s own representative testified he had never heard of a "transactional detail report” until this lawsuit. The court thus finds defendant's argument that plaintiff had a duty to mitigate his damages to be frivolous.