MEMORANDUM OPINION AND ORDER DENYING AMOCO’S MOTIONS FOR JUDGMENT AS A MATTER OF LAW, AND FOR NEW TRIAL OR REMITTITUR
TABLE OF CONTENTS
I. PROCEDURAL BACKGROUND AND INTRODUCTION.845
A. Introduction.845
B. Summary Of Facts.847
C. Amoco’s Challenge To The Jury Verdict .847
D. Chart Of Issues, Waivers, And Disposition On The Merits.848
II. ANALYSIS.850
A. Preservation Of Errors.850
1. Preservation Of Error And Rule 50 Motions.851
a. Reassertion Of A Rule 50 Motion.852
b. Lack Of Reassertion Of Amoco’s Rule 50 Motion.855
2. Objections To Jury Instructions.856
a. Necessity, Purpose, And Effect Of Objections And Failure To Object.857
b. Timing, Procedure, And Specificity Required For Objections-858
c. Amoco’s Objections Or Lack Thereof.859
*844 i. The Elements Of Invasion Of Privacy.859
ii. The Malice And Ratification Instructions On Punitive Damages .860
The Appropriate Standard For Determining Amoeo’s Post-Trial Motions_862 Attack On The Jury’s Verdict Finding An Invasion Of Privacy.865 1. The Elements Of Invasion Of Privacy Under Iowa Law.865 2. Proof Presented .866 Otd
a. Amoco’s “Legitimate Objective” And The Degree Of Intrusion_866
b. The Degree Of Injury.867
c. The Evidence Of Injury Here .869
d. Ratification Requirement And Evidence Presented.870
Punitive Damages.873
1. The Purpose Of Punitive Damages Under Iowa Law.873
2. Actual Damages As A Prerequisite To Punitive Damages.874
3. Malice 878
a. “Malice” Defined.879
b. What Conduct Is Sufficient To Show Malice? .880
c. Sufficiency Of Evidence Of Malice In This Case.881
4. Ratification And Punitive Damages.882
5. Was The Punitive Damage Award Excessive?.882
E. Remittitur.889
CONCLUSION.891 III.
Challenging a jury award of $2 in actual damages and $500,000 in punitive damages for invasion of privacy, defendant employer has filed post-trial motions for judgment as a matter of law, and for new trial or remittitur. The employee’s claim was based on the employer’s examination of the employee’s credit card records to attempt to determine whether the employee had been abusing sick leave.
The employer makes several challenges to the jury’s verdict finding an invasion of privacy asserting that there is insufficient evidence of the elements of the tort to sustain the verdict for the employee on that claim. The employer also makes several challenges to the jury’s award of punitive damages based on sufficiency of evidence. Finally, the employer challenges the punitive damage award as excessive and in violation of due process. The motions require the court to consider whether the employer has preserved the errors it now complains of in its post-trial motions because the employer failed to renew a motion for judgment as a matter of law, first made at the conclusion of plaintiffs case, at the close of all evidence as required by Fed.R.Civ.P. 50. The court must also consider, pursuant to Fed.R.Civ.P. 51, whether the employer preserved the alleged errors it now complains of in its posh-trial motions in its objections to relevant jury
instructions or failed to preserve error by failing to object to instructions. Despite its conclusions that errors have not been properly preserved, the court nonetheless examines the merits of each of the employer’s claims by scrutinizing the sufficiency of the evidence in support of the jury’s verdict. Finally, in response to the employer’s post-trial assertion that the jury award of $500,000 in punitive damages was excessive, the court conducts the constitutionally required post-trial review of the punitive damage award.
Before turning to the arguments presented here, the court briefly notes that the importance of the right of privacy has long been recognized in this country.
Of all the rights of the citizen, few are of greater importance or more essential to [the citizen’s] peace and happiness than the right of personal security, and that involves, not merely protection of [the citizen’s] person from assault, but exemption of [the citizen’s] private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.
Interstate Commerce Comm’n v. Brimson,
It cannot be too often repeated ... that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employees of the sanctity of a [person’s] home, and the privacies of [a person’s] life....
Id. In commenting on this right, Justice Holmes observed:
Anyone who respects the spirit as well as the letter of the Fourth Amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire and to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime. We do not discuss the question whether it could do so if it tried, as nothing short of the most explicit language would induce us to attribute to Congress that intent.
Federal Trade Comm’n v. American Tobacco Co.,
I. PROCEDURAL BACKGROUND AND INTRODUCTION
A Introduction
Plaintiff Thaddeus C. Pulla filed this action against his employer Amoco Oil Company on February 20, 1991, alleging age discrimination in the form of demotion and retaliation in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., and pendant state law claims, including a claim of invasion of privacy. On January 18, 1994, the parties filed a consent to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and the case was referred to me. 3
After discovery and dispositive motions, this matter proceeded to trial before a jury on three of Pulla’s claims on May 3, 1994. Those claims were the two age discrimination claims of demotion and retaliation and the invasion of privacy claim. After the conclusion of the presentation of Pulla’s case on the afternoon of May 5, 1994, on the morning of May 6,1994, Amoco moved for judgment as a matter of law on all of Pulla’s claims pursuant to Fed.R.Civ.P. 50. The court reserved ruling on that motion. Strangely, Amoco did not reassert the motion for judgment as a matter of law at the conclusion of its own case at the end of the day. The court held the first of two jury instruction conferences on the record on the afternoon of May 6, 1994, and the second following the weekend break on the morning of May 9, 1994. The jury was instructed and the case was submitted to them on the morning of May 9, 1994.
*846 The jury returned a verdict on the afternoon of May 9, 1994, finding in favor of Amoco and against Pulla on all claims except the invasion of privacy claim. 4 On the invasion of privacy claim, the jury awarded $1 in actual damages for past mental pain and suffering, and $1 in actual damages for future mental pain and suffering (reduced to present value). The jury also answered in the affirmative a special interrogatory on punitive damages asking if the jury found by a preponderance of the clear, convincing, and satisfactory evidence that Amoco’s conduct in invading Pulla’s privacy constituted willful and wanton disregard for Pulla’s rights. The jury awarded Pulla $500,000 in punitive damages. The jury also answered in the affirmative a special interrogatory asking if the jury found that Amoeo’s conduct had been directed specifically at Pulla. 5 Judgment was entered on the jury’s verdict on May 10, 1994.
Amoco filed the present post-trial motions challenging the jury’s verdict on May 20, 1994. Amoco filed its overlength brief, with the permission of the court, on May 24,1994. Pulla resisted Amoco’s motions on June 1, 1994. Hearing was held on Amoeo’s motions June 21, 1994. Pulla was represented at the *847 trial and the hearing on Amoeo’s motions by counsel I. John Rossi, of Des Moines, Iowa. Amoco was represented at the trial and at the hearing by counsel Charles E. Gribble, from Whitfield & Eddy, P.L.C., of Des Moines, Iowa. Pursuant to the court’s direction, the parties filed supplemental briefs concerning the motions, Amoco on July 26, 1994, and Pulla on August 8, 1994. This matter is -now fully submitted.
B. Summary Of Facts
In response to a post-trial motion for judgment as a matter of law, the court must deny the motion if reasonable jurors could differ as to the conclusion that could be drawn from the evidence.
McAnally v. Gildersleeve,
A reasonable jury could have found the following. Pulla was employed by Amoco beginning in 1963, and had been continuously employed by Amoco from 1974. Pulla was eventually promoted to the position of lead representative in the credit card sales authorization and investigation department. A co-employee of Pulla’s, Ms. Leckband, because she was “mad” at Pulla for what she believed to be his abuse of sick leave, reviewed the records of Pulla’s Amoco credit card to try to verify that he had not been sick on days he had claimed- sick leave. Ms. Leckband brought her findings to the attention of Pul-la’s and Leckband’s supervisor, Mr. Wieczo-rek. Mr. Wieczorek told Ms. Leckband that her conduct in reviewing Pulla’s credit card records was not appropriate and must not be repeated, but immediately asked another employee, Diana Scott, to make a copy of Pulla’s credit card records, and then delivered the copy himself to Amoeo’s personnel department to be placed in Pulla’s personnel records. Pulla learned that his credit card records had been reviewed in telephone calls from other Amoco employees, and made further investigations. As the result of what he discovered about review and use of his credit card records, Pulla suffered feelings of being watched all the time, and believes that the credit card records made available to third parties in his personnel file unfairly cast him in a bad light. Mr. Wieczorek referred to absences Ms. Leckband had tried to demonstrate were improper in a subsequent employee evaluation of Pulla, and Pulla was singled out for a requirement that he obtain certification from a company doctor of any sick leave claims he subsequently submitted.
C. Amoco’s Challenge To The Jury Verdict
Amoco has made the following challenges to the jury’s verdict in its post-trial motions. First, Amoco attacks the jury’s verdict finding an invasion of privacy. Specifically, Amoco argues that there is insufficient evidence that Pulla suffered any anguish or suffering as the result of any invasion of his privacy to support his claim, that Amoco had a legitimate interest in reviewing the information in question here, that the evidence shows that Amoco’s means were, not objectionable to a reasonable person, and that there is insufficient evidence to find that Amoco ratified any wrongful conduct. Amoco also argues that the evidence of injury that Pulla presented was insufficient as a matter of law and that the court instructed on the wrong standard for finding an injury. Amoco also challenges the award of punitive damages in this case. Specifically, Amoco argues that there is insufficient evidence of malice or of ratification of wrongful conduct on the part of Amoco to support the jury’s award of punitive damages in this case. Amoco also argues that there are no actual damages awarded here and that an award of actual damages is a precondition to an award of punitive damages under Iowa law. Final *848 ly, Amoco argues that the punitive damage award in this case is excessive and violative of due process. The court must conduct the constitutionally required post-trial review of the excessiveness of a punitive damage award, but the court concludes that post-trial review of all of Amoco’s claims of error, with the exception of the issue of ratification of the alleged invasion of privacy, have been waived by failure to assert those claims of error in a timely motion for judgment as a matter of law or by failure to raise adequate objections to relevant jury instructions. In the alternative, the court conducts the appropriate review to determine whether Amoco is entitled to judgment as a matter of law or to a new trial, and concludes that Amoco is not entitled to post-trial relief under either standard.
D. Chart Of Issues, Waivers, And Disposition On The Merits
The chart that follows provides a concise statement of Amoco’s challenges to the verdict in this case, when they were raised, whether or not they have been waived, and how the court disposes of them on the merits to help clarify the issues discussed more fully below.
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*849 [[Image here]]
*850 [[Image here]]
II. ANALYSIS
A. Preservation Of Errors
The chart above reveals the court’s conclusion that Amoco has waived almost all of its post-trial challenges to the jury’s verdict and that, even on their merits, the challenges do not require judgment as a matter of law in Amoco’s favor or a new trial. However, before explaining the basis for the court’s conclusion on the merits of Amoco’s post-trial motions for judgment as a matter of law and new trial, the court will explain its conclusions regarding Amoeo’s failure to preserve for post-trial consideration most of the objections it now raises to the jury instructions given and to the jury’s verdict. The court will first discuss why Amoco’s failure to renew its motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50 at the close of all evidence constituted a waiver of issues raised in that motion. Next, the court will discuss why Amoco’s objections, or failure to *851 object, to certain jury instructions waived error on the issues presented.
1. Preservation Of Error And Rule 50 Motions
At the close' of Pulla’s case, Amoco moved for judgment as a matter of law on all of Pulla’s claims pursuant to Fed.R.Civ.P. 50. Concerning Pulla’s claim of invasion of privacy, Amoco argued there was no testimony to establish that Pulla had suffered any anguish as the result of the review of his credit card records. 6 In response to Amoeo’s Rule 50 motion on the invasion of privacy claim, Pulla stated his intention to call one more witness. 7 Amoco did not raise the issues of punitive damages, malice, or ratification, in its Rule 50 motion. The court took the motion under advisement, and although expressing doubt as to the submissibility of some of the claims, specifically stated that it thought the invasion of privacy claim was submissible. Following Amoco’s motion pursuant to Fed.R.Civ.P. 50, four witnesses testified, providing a full day of testimony. Although Pulla did not call any more witnesses, he did attempt to introduce some further evidence on the invasion of privacy claim during the testimony of Mr. Marzullo. 8 At the close of all evidence, Amoco, for no apparent reason, failed to reassert its motion pursuant to Rule 50.
Amoco argues that its failure to reassert the motion pursuant to Rule 50 is not fatal to its present assertion of a motion for judgment as a matter of law (formerly a motion for judgment notwithstanding the verdict or j.n.o.v.). Amoco argues that among the exceptions to the rule that a motion for judgment as a matter of law must be renewed at the close of all evidence are when the court took the motion under advisement and when objections were made to jury instructions on the same subject, circumstances Amoco argues were present here.
Under
Fed.R.Civ.P.
50(b), a litigant’s motion for judgment notwithstanding the verdict may not be entertained unless the movant previously moved for judgment as a matter of law (formerly “directed verdict”) at the close of all evidence.
Smith v. Ferrel,
a. Reassertion Of A Rule 50 Motion
Courts, including the Eighth Circuit Court of Appeals, have construed Rule 50(b) as requiring a party who has moved for judgment as a matter of law prior to the conclusion of the case to reassert that motion at the close of all of the evidence, or be held to have waived the right to seek judgment notwithstanding the verdict.
Myers,
enable[s] the trial court to re-examine the question of evidentiary insufficiency as a matter of law, if the jury returns a verdict contrary to the movant, and [it] alert[s] the opposing party to the insufficiency before the case is submitted to the jury, thereby affording it an opportunity to cure any defects in proof should the motion have merit.
Bohrer,
One circuit court of appeals has held that a party who made the proper motion at the close of the plaintiffs case, but failed to renew that motion at the close of all of the evidence, had not made a “purely technical”
*853
error that could be excused.
Redd,
[w]e are presented with a particularly clear and mechanical rule of law; the [defendant] did not comply and the district judge may not waive [sic] his magic wand dismissing a procedural requirement as a technicality.
Id.
Therefore the district court’s j.n.o.v. was reversed.
Id.
Some time ago, the Eighth Circuit Court of Appeals recognized that other circuits had found certain circumstances excused technical non-compliance with the reassertion requirement.
Myers,
[assuming we were to apply a flexible approach, however, the record in the instant ease discloses no circumstances similar to those relied upon in the above-cited decisions to excuse noncompliance with Rule 50(b). Consequently, [defendant] was precluded from presenting its motion for judgment notwithstanding the verdict. ...
Id. at 559. In Myers, the defendant’s motion for directed verdict at the close of plaintiffs evidence had been denied and was not reasserted at the close of all of the evidence. Id. at 558-59. Because Eighth Circuit cases provide little guidance on what circumstances are sufficient to excuse non-compliance, the court turns to an examination of what circumstances other courts have recognized as sufficient.
Some courts have allowed post-trial j.n.o.v. motions despite failure to reassert a prior Rule 50 motion at the close of all evidence “when the purposes of the rule have been satisfied because the court has had the opportunity to reconsider sufficiency as a matter of law and because the nonmovant has had the opportunity to cure any insufficien-cies.”
Purcell,
the trial court had reserved a ruling on an earlier motion for directed verdict (made at the close of the plaintiffs evidence); the defendant called no more than two witnesses before closing; only a few minutes elapsed between the motion for directed verdict and the conclusion of all the evidence; and the plaintiff introduced no rebuttal evidence.
McCann,
[A] motion for judgment notwithstanding may be granted despite the party’s failure to renew his motion for a directed verdict where: (1) The court indicated that renewal of the motion would not be necessary to preserve the party’s rights; and (2) The evidence following the party’s unrenewed motion for a directed verdict was brief and inconsequential.
Riverview Investments,
*854
Some courts have excused non-compliance with the reassertion requirement where the movant of the original motion subsequently objects to proposed jury instructions on grounds pertaining to the sufficiency of evidence.
Purcell,
Amoco appears to argue that each of the following circumstances standing alone is sufficient to excuse non-compliance: (1) if the court took the motion under advisement or there was some confusion on the part of the court and counsel as to whether the motion needed to be renewed, citing
Farley Transp. Co. v. Santa Fe Trail Transp. Co.,
b. Lack Of Reassertion Of Amoco’s Rule 50 Motion
In the present circumstances, the court did take under advisement Amoco’s motion for judgment as a matter of law at the conclusion of Pulla’s case. That action was not an indication by the court that renewal of the motion was not required; rather, in the context of the court’s further discussion of the submissibility of the invasion of privacy claim, taking the motion under advisement should have prompted Amoco to reassert its motion at the proper time. Also, Pulla indicated an intention to attempt to introduce further evidence in support of that claim. Pulla made such an effort. These circumstances should also have alerted Amoco to the necessity of reasserting its motion at the proper time. Also, a substantial part of the trial, four witnesses lasting a full day involving introduction of several exhibits by both parties, followed Amoco’s motion. In the circumstances of this case, Amoco’s failure to reassert its motion was not a “de minimis” departure from standard procedures, but a major oversight. This court is not inclined to wave its magic wand and ignore the specific requirements of the rule and relevant decisions.
Furthermore, the court does not find that injustice will result from the court’s adherence to the dictates of Rule 50, precluding Amoco from asserting a post-trial motion for judgment as a matter of law on the ground that Amoco failed to reassert its motion for judgment as a matter of law at the close of all evidence. Amoco’s application for post-trial relief should be limited to a motion for new trial.
Yohannon,
*856 [[Image here]]
The court will next consider whether Amoco’s objections to jury instructions on punitive damages preserved its challenges to the punitive damages award for review on a motion for judgment as a matter of law as well as on a motion for new trial The court will also consider the effect of Amoco’s objections or failure to object to jury instructions on preservation of any of its other claims of error even for consideration on a motion for new trial.
2. Objections To Jury Instructions
Amoco has asserted that its objections to jury instructions may substitute for strict compliance with the reassertion requirement of Rule 50, citing
Farley,
Furthermore, Amoco’s objections, or failure to object, to jury instructions have not preserved any error in those instructions for consideration even on a motion for new trial. First, a fair reading of Amoeo’s arguments concerning the invasion of privacy claim is that the court did not properly instruct the jury on the proper degree of anguish or mental distress necessary to sustain a verdict in Pulla’s favor. Although these arguments will be discussed further herein, in its post-trial briefing of these motions, Amoco has argued for the first time in this litigation that a “high degree” of mental pain or distress or “severe emotional distress” is required to support a claim of invasion of privacy. 11 Amoco made no objection to the court’s statement of the elements of the invasion of privacy claim in the final discussion of jury instructions, although in its motion for judgment as a matter of law Amoco did object to the court submitting to the jury an invasion of privacy claim on the ground that there was no evidence of “any anguish or suffering” on Pulla’s part as the result of the alleged inva *857 sion of privacy. 12 Second, Amoco seeks judgment as a matter of law or new trial on the ground that it was error for the court to submit a jury instruction on punitive damages because there was insufficient evidence of malice and insufficient evidence of ratification of wrongful acts by any Amoco employee with managerial capacity. However, the record conclusively demonstrates that Amoco objected to the punitive damages instruction only on the more general ground of “lack of evidence.” 13 Amoco argues that this objection was sufficient to preserve the issue as to evidence of malice, because the essence of allowance of punitive damages in Iowa is that there must be malice or willful and wanton conduct.
a. Necessity, Purpose, And Effect Of Objections And Failure To Object
Fed.R.Civ.P. 51 states, in pertinent part, that
[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make objection out of the hearing of the jury.
The Eighth Circuit Court of Appeals has held that
Fed.R.Civ.P.
51 imposes an affirmative duty on litigants to assert objections to jury instructions before the jury has retired or not at all.
Krementz v. Raby,
to compel litigants to afford the trial court an opportunity to correct any error in the instructions and also to prevent the losing party from obtaining a new trial through relying on a possible error in the original trial.
Johnson v. Houser,
b. Timing, Procedure, And Specificity Required For Objections
Cases from this circuit demonstrate that the timing requirements and procedures for objecting to jury instructions must be followed. Specific objections must be made on the record; tender of an alternative instruction without objecting to the court’s charge will not preserve the error.
Campbell v. Vinjamuri,
Objections to jury instructions must also be “sufficiently specific to bring into focus the precise nature of the alleged error.”
Palmer v. Hoffman,
Consequently, the Eighth Circuit Court of Appeals has also required a close relationship between the objection made before the jury was instructed and subsequent complaints of error. In
Hrzenak v. White-Westinghouse Appliance Co.,
c. Amoco’s Objections Or Lack Thereof
i. The Elements Of Invasion Of Privacy
Amoco now objects to jury instructions on two of the elements necessary for liability on Pulla’s invasion of privacy claim, ratification and the standard for injury. However, only the ratification objection was actually made at the time of the final conferences on jury instructions. The objection to the standard for injury presented in the jury instructions was made for the first time in Amoeo’s post-trial motions.
In its briefs in support of its post-trial motions, Amoco argues strenuously that a claim of invasion of privacy requires a “high degree” of mental pain or “severe emotion stress.” Yet, Amoco did not object to the jury instruction on invasion of privacy on any ground except to argue that there was no evidence upon which a jury could find ratification. Amoco certainly did not object to the invasion of privacy instruction on the ground that it misstated the standard for injury a jury was required to find in order for Pulla to prevail on his claim. The court concludes below that it properly instructed the jury on the elements of the claim under Iowa law. Furthermore, Amoco’s objections to submitting Pulla’s invasion of privacy claim offered during the course of trial cannot substitute for a timely objection to the relevant instruction.
Krementz,
Even were the court to consider the objection offered during the unrenewed motion for judgment as a matter of law, the court concludes that the objection made then, that “[tjhere’s no testimony in the record to establish that the review of the credit card records caused any anguish or suffering” to Pulla, is too general to preserve an error based on alleged misstatement of the standards for the amount of injury required.
Christopherson,
Amoco’s objection to the invasion of privacy instruction as it pertains to ratification was not raised in the first, unrenewed motion for judgment as a matter of law, and the court concluded above that Amoco cannot *860 assert this issue as a ground for a motion for judgment as a matter of law. However, Amoco’s objection to the invasion of privacy instruction as it pertains to ratification does not suffer the same difficulties under Fed. R.Civ.P. 51 as do Amoco’s objections to the standard for injury. Amoco’s objection concerning ratification was stated distinctly and specifically at the time of objections to jury instructions. Amoco therefore preserved this error, and only this error,.for consideration on a motion for new trial.
ii. The Malice And Ratification Instructions On Punitive Damages
Although Amoco did timely object to the punitive damages instructions on the ground of “lack of evidence,” in its post-trial motions Amoco has greatly amplified its objection. Post-trial Amoco now asserts that it is specifically lack of evidence of
malice
and lack of evidence of
ratification
that should have prevented the court from instructing the jury on punitive damages. Amoco asserts that its general objection was sufficient to preserve error because malice is the essence of an award of punitive damages under Iowa law.
14
The court is not persuaded that Amoeo’s objection was “sufficiently specific to bring into focus the precise nature of the alleged error,”
Palmer,
Malice (or wanton and willful conduct, as the level of culpability is defined by Iowa Code § 668A.1), is not the only question which a jury must resolve on the basis of the evidence presented in order to award punitive damages.
See, e.g.,
Iowa Model Civil Jury Instruction 210.1. As is discussed more fully below, a principal evi-dentiary issue is whether the plaintiff has shown actual damages.
See, e.g., Pringle Tax Service, Inc. v. Knoblauch,
Although the court could read Amoco’s objection to Instruction No. 23 concerning ratification in the context of liability for the invasion of privacy claim as also raising the ratification issue for the punitive damages claim, the court concludes that it is not constrained to read more into a party’s objections than they actually said. Furthermore, Instruction No. 28 also lists ratification as a factor for an award of punitive damages, and no specific objection was raised to the ratification element of that instruction. To allow an objection to a liability instruction on a claim also to stand as an objection to a punitive damage instruction, however similar the elements of the two instructions might be, would relieve defense counsel of the obligation to make separate objection to punitive damage instructions. Such a procedure would fly in the face of Rule 51’s requirements that objections to jury instructions be stated distinctly and specify the objections and grounds therefor. Although the court concluded above that the ratification issue as to liability for any invasion of privacy had been preserved for consideration on a new trial motion, the ratification issue as to liability for punitive damages has not been preserved.
The court’s conclusions that Amoco has waived its right to challenge any issue but ratification as to a finding of invasion of privacy on a motion for new trial by noncompliance with Fed.R.Civ.P. 51 are summarized in the following chart.
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Although the court has concluded that no issue was preserved for consideration on a post-trial motion for judgment as a matter of law, and only the issue of ratification was preserved for consideration on a motion for *862 new trial pursuant to Fed.R.Civ.P. 59, the court will nonetheless, in the alternative, consider all issues Amoco has raised on their merits pursuant to the standards for granting either a post-trial motion for judgment as a matter of law or a post-trial motion for new trial.
B. The Appropriate Standard For Determining Amoco’s Post-Trial Motions
Pulla’s complaint presents some confusion as to the appropriate standard to be applied to Amoco’s post-trial motions. Jurisdiction over Count I of Pulla’s complaint was founded on a federal question. Pulla pled diversity jurisdiction only in Counts II and III of his original complaint as an alternative to supplemental jurisdiction over state law claims. Count V, the invasion of privacy claim, and the only one on which the jury found for Pulla, was an amendment to the original complaint. Count V of the amended complaint incorporates only the jurisdictional allegations of Count I of the original complaint, in which jurisdiction was founded on a federal question, not diversity. The court had supplemental jurisdiction over the invasion of privacy claim, and assumes that Pulla also intended to assert diversity jurisdiction over this claim as he had for his other state law claims. While neither Pulla nor Amoco has raised the question, “[t]here is some uncertainty about whether federal courts should apply state law standards or federal law standards to motions for a judgment notwithstanding the verdict in diversity cases.”
Keenan v. Computer Assoc. Int’l, Inc.,
Federal Rule of Civil Procedure 50 entitled “Judgment as a Matter of Law in Actions Tried by Jury; Alternative Motion for New Trial; Conditional Rulings” states in relevant part-
ía) Judgment as a MatteR of Law.
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment,
(b) Renewal of Motion FOR Judgment After Trial; Alternative Motion for New Trial. Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed by service and filing not later than 10 days after entry of *863 judgment. A motion for a new trial under Rule 59 may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative....
Fed.R.Civ.P. 50(a) & (b). 17
Federal Rule of Civil Procedure 59 entitled “New Trials; Amendment of Judgments” states in relevant part:
(a) GRounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.
Fed.R.Civ.P. 59(a).
Because there has been some confusion in the district courts in this circuit
18
and because there are substantial differences in the standards to be applied under Federal Rules of Civil Procedure 50 and 59, the court will examine the appropriate standard to be applied under each rule. As the court recently stated in
White v. Pence,
The court in Pence carefully delineated the difference between the appropriate standards for these two motions. In determining a motion for j.n.o.v. (and in the current parlance of Federal Rule of Civil Procedure 50, a motion for “judgment as a matter of law”) 19 the court in Pence observed:
the question is a legal one, whether there is sufficient evidence to support a jury verdict. This court must analyze the evidence in the light most favorable to the prevailing party and must not- engage in a weighing or evaluation of the evidence or consider questions of credibility. See Dace v. ACF Indus., Inc.,722 F.2d 374 , 375-76 (8th Cir.1983), supplemented,728 F.2d 976 (1984). We have also stated that to sustain a motion for j.n.o.v., all the evidence must point one way and be susceptible of no reasonable inference sustaining the position of the nonmoving party. Id. at 375; Washburn v. Kansas City Life Ins. Co., *864881 F.2d 1404 , 1407 (8th Cir.1987); Brown [v. Syntex Lab., Inc., 755 F.2d [668], 671 [ (8th Cir.1985) ]. These principles have no application to the consideration of a motion for new trial on the ground that the verdict is against the weight of the evidence.
Pence, 961 F.2d
at 779 (footnotes omitted).
See also First Dakota Nat’l Bank v. Saint Paul Fire & Marine Ins. Co.,
“consider the evidence in the light most favorable to the prevailing party, assume that the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party’s evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence.”
Minneapolis Community Dev. Agency v. Lake Calhoun
Assoc.,
In contrast, concerning motions for new trial under Federal Rule of Civil Procedure 59, the court in Pence observed:
With respect to motions for new trial on the question of whether the verdict is against the weight of the evidence, we have stated: “In determining whether a verdict is against the weight of the evidence, the trial court can rely on its own reading of the evidence — it can ‘weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain a verdict.’ ” Ryan v. McDonough Power Equip.,734 F.2d 385 , 387 (8th Cir. 1984) (citation omitted). Similar language appears in Brown,755 F.2d at 671-73 ; Slatton [v. Martin K. Eby Constr. Co.], 506 F.2d [505,] 508 n. 4 [(8th Cir.1974), cert. denied,421 U.S. 931 ,95 S.Ct. 1657 ,44 L.Ed.2d 88 (1975)]; Bates [v. Hensley], 414 F.2d [1006,] 1011 [ (8th Cir.1969) ], and early authority cited in Bates. See also Leichihman v. Pickwick Int’l,814 F.2d 1263 , 1266 (8th Cir.), cert. denied,484 U.S. 855 ,108 S.Ct. 161 ,98 L.Ed.2d 116 (1987). These cases establish the fundamental procedures or methodology to be applied by the district court in considering new trial motions and are in contrast to those procedures governing motions for j.n.o.v.
Id. at 780. 20 With these principles in mind concerning the standards for post-trial motions under Federal Rule of Civil Procedure 50 and 59, the court turns to the merits of Amoco’s motions.
*865 C. Attack On The Jury’s Verdict Finding An Invasion Of Privacy
Amoco makes three attacks on the jury’s verdict finding in favor of Pulla on his claim of invasion of privacy. First, Amoco argues that it had a legitimate interest in obtaining Pulla’s credit card information. Second, Amoco argues that using Pulla’s credit card records to determine whether or not he was abusing sick leave could not be objectionable to a reasonable person. Finally, Amoco argues that there was not sufficient evidence of any injury to Pulla from the allegedly invasive conduct to support the jury’s verdict. Implicit within this last attack is the argument that the court did not instruct the jury on the proper standard for a finding of injury. In its post-trial motions, Amoco has argued for the first time in this litigation that a “high degree” of mental pain or distress or “severe emotional distress” is required to support a claim of invasion of privacy. Finally, Amoco argues that it cannot be held liable for any invasion of Pulla’s privacy because it did not ratify the wrongful acts of its employees. Pulla argues that it was for the jury to decide whether or not Amoco had a legitimate interest in reviewing Pulla’s credit card records and the jury’s finding should not be disturbed. Pulla also argues that review of credit card records is at least as objectionable as review of bank account records. Pulla asserts that the court properly instructed the jury on the degree of injury necessary and that a reasonable jury could find such injury here. Finally, Pulla asserts that there is adequate evidence that Amoco ratified the wrongful conduct in question here.
1. The Elements Of Invasion Of Privacy Under Iowa Law
The Iowa Supreme Court first recognized the tort of invasion of privacy in
Bremmer v. Journal-Tribune Publishing Co.,
The Restatement principles the Iowa Supreme Court has adopted are found in § 652A and subsequent sections defining each form of the tort. Section 652A states as foEows:
(1) One who invades the right of privacy of another is subject to Hability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or
(b) appropriation of the other’s name; or likeness, as stated in § 652C; or
(e) unreasonable publicity given to the other’s private life, as stated in § 652D; or
(d) publicity that unreasonably places the other in a false Eght before the public, as stated in § 652E.
Winegard,
Category (a) requires an intentional intrusion upon the solitude'or seclusion of ah-other which would be highly offensive to á reasonable person. § 652B.
*866
Id.
21
The court noted further that both categories (c) and (d) of the tort require publicity or publication of some sort, and that the latter category overlaps the law of defamation.
Id.
at 823;
see also Anderson,
To recover under the intrusion upon seclusion theory of the tort,
a plaintiff must show, first, that the defendant intentionally intruded upon the seclusion that the plaintiff “has thrown about [his or her] person or affairs.” Restatement § 652B comment c; accord Wine-gard,260 N.W.2d at 822 . Second, the intrusion must be one that would be “highly offensive to a reasonable person.” Winegard,260 N.W.2d at 822 ; accord Restatement § 652B. The defendant is not liable, however, if the plaintiff is already in public view. Restatement § 652B comment c.
Stessman,
2. Proof Presented
a. Amoco’s “Legitimate Objective” And The Degree Of Intrusion
Amoco has argued that it had a legitimate objective in reviewing Pulla’s credit card records. 23 The court finds no such de *867 fense in any formulation of the offense of invasion of privacy by intrusion on seclusion in either Iowa cases or the formulation of the tort of invasion of privacy in the Restatement (Second) of Torts § 652A and subsequent sections. Furthermore, the court does not read the cases cited by Amoco as holding that a legitimate objective is a complete defense to a claim of invasion of privacy or as holding that an employer has a legitimate interest in reviewing confidential records. Rather, the court reads these cases as standing for the more narrow proposition that the employer’s interest must be balanced against the degree of intrusion resulting from the employer’s methods to obtain the information in question. 24 The court concludes here, as a reasonable jury could have, that whatever Amoeo’s interest may have been, its methods were unduly intrusive when balanced against that interest. Amoco used confidential credit card records for a purpose for which they were never intended, and did so surreptitiously, without notice to, or consent or knowledge of, the credit card holder. Robert Langlois, Amoco’s manager of sales processing and control, testified to his belief that obtaining someone’s private credit card information was wrong and illegal. 25 Amoco’s means were therefore not legitimate whatever its interest might have been. For the same reasons, a reasonable jury could, and this court does find Amoco’s methods to be highly offensive to a reasonable person.
b. The Degree Of Injury 26
Amoco argues that the degree of injury required to support a claim of invasion of privacy is a “high degree” of mental pain or distress or “severe emotional distress,” citing
Phar-Mor, Inc. v. Chavira,
In light of the Iowa Supreme Court’s adoption of the principles of invasion of privacy articulated in the Restatement (Second) of Torts, this court believes that the applicable standard for damages is also to be found in the Restatement. Section 662H of the Restatement (Second) of Torts defines the damages available for invasion of privacy: § 652H. Damages
One who has established a cause of action for invasion of his privacy is entitled to recover damages for
(a) the harm to his interest in privacy resulting from the invasion;
(b) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and
(c) special damage of which the invasion is a legal cause.
Restatement (Second) of Torts § 662H;
see also Staruski v. Continental Telephone Co. of Vermont,
The plaintiff may also recover damages for emotional distress or personal humiliation that he proves to have been actually suffered by him, if it is of a kind that normally results from such an invasion and it is normal and reasonable in its extent. ...
Restatement (Second) of Torts § 652H, comment b. Neither § 652H nor comment b to that section require “extreme” or a heightened degree of emotional distress or humiliation. On the contrary, the language of both mitigates against such a requirement because both stress that the mental damages must be of a kind that normally results from an invasion, and the comment requires that the damages also be normal and reasonable in extent.
c. The Evidence Of Injury Here
Pulla testified that he learned of review of his credit card records in telephone calls from other employees. Pulla testified that as a result of what he learned about the review of his records, he has had feelings of paranoia, or that his every move was being watched, and that those feelings continue. He also testified, although not without contradiction in the testimony of other witnesses, that he was singled out by being required to go to the company doctor to make sure he was sick before he could claim sick leave. He testified that verification of illness by the company doctor was not the customary practice. He also testified that he had paid off his credit card and closed his account as the result of the invasion of his privacy. Furthermore, Pulla also testified that he had learned that his credit card records had been placed in his personnel file and felt that they unfairly characterized him in a bad light.
Although Pulla did not use the key words in the definition of damages for invasion of privacy found in § 652H, the court concludes that a reasonable jury could find that Pulla’s testimony that he felt he was being watched amounted to mental distress of a kind that normally results from such an invasion, and that it was normal and reasonable in its extent. The court believes that a reasonable jury could also find that Pulla reacted to the invasion of privacy with indignation and feelings of humiliation and embarrassment because a number of employees were aware of the review of his credit card records and copies of those records were placed in a personnel file also available to third parties and that Pulla believed those records unfairly cast him in a bad light. A jury could also find from the evidence presented that Pulla was humiliated by being singled out and subjected to the requirement that he report to the company doctor for review of his requests for sick leave. Although Restatement (Second) of Torts § 652H does not require “public humiliation” and Iowa law specifically holds that no publication of information improperly gained is required to sustain a claim of intrusion on seclusion,
Lamberto,
In discussions of jury instructions, the court indicated some doubt that Pulla had presented enough evidence to sustain a claim for damages for any future pain and suffering. Although the court believes that it is a close question, the court will not set aside the award of $1 for future pain and *870 suffering on the basis of the evidence that Pulla continues to suffer from feelings of paranoia and is subjected to special review of his sick leave requests.
d. Ratification Requirement And Evidence Presented
Amoco makes one final attack on the sufficiency of the evidence necessary to support the jury’s verdict finding Amoco liable for invasion of privacy. Amoco argues that the record does not show wrongful conduct by managerial personnel or ratification by managerial personnel of the wrongful conduct of an employee within the scope of that employee’s employment such that Amoco can be held liable for punitive damages. Pulla argues that taking the evidence in the light most favorable to him, there is evidence that Amoco ratified Ms. Leckband’s conduct or that Mr. Wieczorek’s authority and conduct were sufficient to bind Amoco for punitive damages to lie.
The issues presented by Amoco’s arguments that it may not be held liable for punitive damages for the wrongful conduct here have been considered in only a very few decisions of the Iowa Supreme Court. In
Bethards v. Shivvers, Inc.,
a corporation is liable for the tortious conduct of its employees, Burr v. Apex Concrete Co.,242 N.W.2d 272 , 277 (Iowa 1976), and this includes liability for punitive damages under circumstances of complicity set out in section 909 of the Restatement (Second) of Torts (1979). See Briner v. Hyslop,337 N.W.2d 858 (Iowa 1983). Three of those circumstances are: authorization by the principal of the act; an agent in a managerial capacity; or ratification or approval of the act.
Bethards,
In
Briner v. Hyslop,
[p]unitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if:
(a) the principal authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal was reckless in employing him, or
(e) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or the managerial agent of the principal ratified or approved the act.
Restatement (Second) of Torts § 909 (1979). However, in
Briner,
the court concluded that there was no evidence that the bad actor was himself in a managerial capacity.
Briner,
These decisions do not shed light on the nature of the “managerial capacity” requirement for corporate liability based on the acts of a managerial employee or ratification by such an employee of the acts of another employee, nor does the Restatement itself. However, the Restatement does provide several citations to cases that have addressed this question. 29 Having reviewed these cases, the court agrees with Amoco that a jury could not reasonably find that Ms. Leck-band had sufficient managerial capacity to bind Amoco for punitive damages. However, a reasonable jury could conclude, on the basis of the record here, that the following were true: 1) that Mr. Wieezorek was an employee with “managerial capacity” on the basis of his position with Amoco as supervisor of sales authorization and investigation over two “lead” representatives and a number of other representatives; 2) that Mr. Wieezorek, in his managerial capacity, ratified or approved Ms. Leekband’s conduct, notwithstanding his reprimand to her, by immediately engaging in similar conduct of having Pulla’s records copied and placed in Pulla’s employment file; and 3) that Mr. Wieezorek, in his managerial capacity, himself engaged in wrongdoing that injured Pul-la and that such conduct was within the scope of his employment as a supervisor of employees within the sales authorization and investigation division. If the jury were to find both conditions 1) and 2), or conditions 1) and 3), then both liability for invasion of privacy and for punitive damages would lie against Amoco. A reasonable jury could so find, and upon its own review of the evidence this court agrees. Amoco is not entitled to either judgment as a matter of law or a new trial on the jury’s finding of liability for invasion of privacy or on the award of punitive damages ■ in this case on the basis that an employee of Amoco with managerial capacity did not engage in, ratify, or approve the wrongful conduct found here.
The court’s conclusions regarding disposition of Amoco’s challenges to the jury’s verdict finding an invasion of privacy are summarized in the following chart.
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*872 [[Image here]]
Because the court finds that the jury’s verdict in favor of Pulla on his claim of invasion of privacy is sustained by the evidence and that no new trial is required on Pulla’s substantive claim, the court turns to consideration of Amoco’s objections to the award of punitive damages in this case.
*873 D. Punitive Damages
Amoco makes four challenges to the award of punitive damages in this case. First, Amoco argues that Pulla is not entitled to an award of punitive damages under Iowa law because there is no award or showing of actual damages upon which to base an award of punitive damages. Second, Amoco argues that there was insufficient evidence of malice to support an award of punitive damages in this ease. Third, Amoco argues that, as a corporation, it cannot be held liable for punitive damages because it did not ratify any of the allegedly wrongful conduct of Ms. Leek-band. Fourth, Amoco argues that the punitive damage award is excessive and violates Amoco’s due process rights. 30
1. The Purpose Of Punitive Damages Under Iowa Law
Actual damages are designed to compensate the injured party for the injury caused by wrongful acts, but punitive damages are not compensatory.
Beeman v. Manville Corp. Asbestos Fund,
[a] careful reading of our cases on the subject, especially those filed during the past decade, discloses that demands for punitive damages far exceed the number of cases where they are appropriate. Their assessment has always called for utmost discrimination because, by their very nature, they involve utilization of a rightful indignation which must not amount to passion or prejudice.
Coster,
The Iowa legislature has established a statutory standard for the egregiousness of conduct for which punitive damages may be assessed:
Under Iowa Code Section 668A.1 (1991), to receive punitive damages, plaintiff must prove by a preponderance of clear, convincing, and satisfactory evidence that the defendant’s conduct amounted to a willful and wanton disregard for the rights or safety of another. The conduct must be more than merely objectionable; it must follow the standards of section 668A.1.
Beeman,
Iowa courts generally defer to a jury’s award of punitive damages:
Rees v. O’Malley,
The assessment of damages is traditionally a jury function. Its decision should be disturbed only for the most compelling reasons. We will reduce or set aside a jury award only if it (1) is flagrantly excessive or inadequate; or (2) is so out of reason as to shock the conscience or sense of justice; or (3) raises a presumption it is a result of passion, prejudice, or other ulterior motive; or (4) is lacking in eviden-tiary support....
The most important of the above enumerated tests is support in the evidence. If the verdict has support in the evidence the others will hardly arise, if it lacks support they all may arise.
Iowa courts assessing and reviewing punitive damages are to apply the three-tiered process approved by the United States Supreme Court in
Pacific Mut. Life Ins. Co. v. Haslip,
(1) jury instructions explaining the nature, purpose, and basis for the award; (2) post-trial procedures for scrutinizing the award; and (3) an appellate review process that ensures the award is reasonable and rational.
Spaur,
2. Actual Damages As A Prerequisite To Punitive Damages
Amoco argues that Pulla did not suffer any actual damages, but merely a technical inju *875 ry, because the jury awarded only “nominal” damages of $1.00 for past mental pain and suffering and $1.00 for future mental pain and suffering. Such an award, and the lack of actual damages Amoco argues it shows, cannot form the basis for an award of punitive damages under Iowa law. Further, Amoco argues, it does not matter whether the award is characterized as actual or nominal damages, because Pulla failed to offer any evidence that he had sustained actual damages. Amoco argues that Pulla was never “reprimanded” or suffered negative consequences at work as the result of examination of his credit card records by Amoco employees, and that his testimony that he felt like he was being watched does not amount to evidence of mental anguish.
Pulla argues that the jury, because it was not instructed on nominal damages, awarded actual damages for which there was adequate supporting evidence in the record, viewing the evidence in the light most favorable to the verdict. Pulla argues that he need only show some injury to sustain a verdict of punitive damages; no award of actual damages is required. Pulla points to his testimony that he suffered from symptoms of paranoia that continue to this day as showing an actual injury.
The court recognizes that there is a split among jurisdictions as to the prerequisites for an award of punitive damages. Some jurisdictions have held that an award of “nominal” damages is sufficient to support an award of punitive damages. 33 Others require recovery of actual damages to sustain an *876 award of punitive damages. 34 Still others require only a showing of actual damages before punitive damages can be awarded. 35 Finally, some jurisdictions are split on whether recovery or merely a showing of actual damages will suffice to support a punitive damage award. 36
*877
The Iowa Supreme Court, however, has consistently held since its decision in
Pringle,
[h]arm has been established when the record shows actual damage has been suffered, even though for one reason or another the damages have not been computed or awarded. Therefore we hold that a failure to award actual damages will not bar exemplary damages when actual damage has in fact been shown.
Id.
at 154.
See also Hockenberg,
The predicate for punitive damages under
Pringle
is satisfied, however, if there is substantial evidence in the record to support the trial court’s finding that plaintiff suffered actual damages but insufficient evidence to support a determination of their amount.
Westway Trading,
In the present case, the jury instruction given informed the jury that it could award damages for past and future mental pain and suffering, defined those items of damage, and explained how an amount was to be calculated.
38
Surprisingly,
*878
based on Pulla’s limited damages testimony on the invasion of privacy claim, no nominal damages instruction was requested by either party.
39
The court concludes that the jury found plaintiff suffered actual damages but either had insufficient evidence to support a
determination
of their amount,
Westway Trading,
However, even if the jury’s award was only for “nominal” damages in the amount of $1.00 each for past and future mental pain and suffering, under
Hockenberg,
such an award is sufficient to support a punitive damage award. In
Hockenberg,
the jury received no nominal damages instruction, yet it awarded the plaintiff damages of $1.00 characterized by the court as “nominal compensatory damages.”
Hockenberg,
3. Malice
Amoco argues that there was insufficient evidence of malice to support an award of punitive damages in this case. Amoco argues that although Ms. Leckband testified that she was “mad” at Pulla for what she *879 perceived to be an abuse of his sick leave, nothing in the record shows the necessary “spite, hatred, or ill will” towards Pulla, and any harm to him was so slight, that punitive damages cannot be sustained. Amoco also asserts that no one else at the company had actual knowledge of employees reviewing other employees’ credit card records, and on this occasion Ms. Leckband was emphatically told not to repeat her conduct. Amoco argues that this shows no disregard for Pulla’s rights by the company. Finally, Amoco argues that none of the conduct complained of is sufficiently egregious to warrant a finding of malice even if Amoco was negligent in not preventing or discovering Ms. Leckband’s conduct. Pulla argues that Amoco disregarded Pulla’s right to privacy of his records by examining them and that Amoco continues to assert that it could do so, thus showing willful disregard for Pulla’s rights sufficient for punitive damages to be awarded.
As was stated above, Iowa Code § 668A.1, enacted in 1988, established the standards for the egregiousness of conduct that will sustain punitive damages as “willful and wanton disregard for the rights or safety of another.” Iowa courts have continued to refer to this requirement as a showing of actual or legal malice, and also treat the standard in § 668A.1 as a codification of the court’s prior standards for malice.
Coster,
es “Malice” Defined
In order to support a claim for punitive damages, a plaintiff must show that the defendant’s conduct was willful and wanton, that is, constituted actual or legal malice.
Reed v. Chrysler Corp.,
*880 b. What Conduct Is Sufficient To Show Malice?
In recent cases, Iowa courts have rarely had any evidence of actual malice, in the form of personal spite, hatred, or ill will, to consider, but have instead considered whether the defendant’s conduct raised an inference of legal malice.
See, e.g., ClarkPeterson Co., Inc. v. Independent Ins.
As
socs., Ltd.,
Intentional violation of recognized standards of conduct, particularly by those in positions of trust, can also demonstrate willful and wanton disregard for the rights of others sufficient to sustain punitive damages. Although in
Coster,
the court considered that there was insufficient evidence of malice where the defendant loaned trust assets to a third person where the plaintiff had actually entreated the defendant to make the loan, it considered submission of the punitive damages claim appropriate on a claim that the trustee of assets had engaged in self-dealing.
Coster,
Continuation of conduct a defendant has recognized as injurious also sustains an award of punitive damages. In
Shepherd Components,
the court found that there was sufficient evidence of legal malice for submission of a punitive damages claim where plaintiff complained to defendant construction company that their building methods were causing damage to plaintiff’s premises, defendant said the damage could not be repaired and still continued to use the same construction methods, which increased plaintiffs problems and culminated in the entire collapse of a wall.
Shepherd Components,
The Iowa court has held that there was insufficient evidence of willful and wanton conduct in less clearly definable situations. In
Vlotho,
the court concluded that, although it was a close question, a party had not shown sufficient reckless disregard for the rights of the county when he demolished a bridge belonging to the county because the record demonstrated that his actions had not been based on evil motive or reckless indifference, but on an “assumption that was incorrect” that he was entitled to demolish the bridge.
Vlotho,
In the context of a products liability action, the Iowa court has used a risk-utility *881 analysis to determine whether the defendant acted with willful and wanton disregard for the consumer’s rights or safety:
Plaintiff contends that [the defendant’s] generalized knowledge of possible danger, coupled with defendant’s failure to test an emergency stop device, generated a jury question on punitive damages. We believe this evidence supports precisely the opposite conclusion — namely, that an award of punitive damages is inappropriate when room exists for reasonable disagreement over the relative risks and utilities of the conduct and device at issue.
Hillrichs v. Avco Corp.,
c. Sufficiency Of Evidence Of Malice In This Case
In the present case, the jury found an invasion of Pulla’s right to privacy when Amoco employees reviewed his credit card records without any authorization from Pulla for the purpose of verifying their own suspicions that Pulla was abusing sick leave. No contract or policy of Amoco permitted such conduct, and Mr. Wieczorek, who was the supervisor of sales authorization and investigation, acknowledged that the conduct was inappropriate when he reprimanded Ms. Leckband and told her that review of credit card records “must not be done” and that they “not look at it again.” 42 Despite Amoco’s assertion that Ms. Leckband could reasonably have believed that any possible harm that would arise from her conduct was slight when balanced against her purposes, 43 the jury could reasonably have concluded that such a view of the possible harm was unwarranted, and this court, on its own review, comes to the same conclusion. Ms. Leckband’s view of the possible harm to Pulla may have been founded more on a belief that Pulla would not learn of the conduct, or not learn who had perpetrated it, than on a realistic view of the possible harm that might result from improper review of records generally acknowledged to be confidential.
The jury could reasonably have concluded that Ms. Leckband acted with spite or ill-will in attempting to catch Pulla in misuse of sick leave by such an underhanded method. This court’s review of the evidence, for the purposes of considering the motion for new trial, *882 leads it to conclude that ill will at the least was shown by Ms. Leekband’s conduct. Although it is perhaps a close question, the punitive damages award in this case is sustainable on the basis of a showing of actual malice.
The court believes that the evidence certainly establishes legal malice. A showing of wrongful conduct committed or continued with a willful or reckless disregard for another’s rights is sufficient to show legal malice.
Shepherd Components,
4. Ratification And Punitive Damages
In addition to attacking its liability for invasion of privacy on the basis that there is no evidence that it ratified any wrongful conduct, Amoco asserts that the lack of evidence of ratification also means it cannot be held hable for punitive damages. The court need not repeat its discussion of the ratification issue presented in section II.C.2.d. of this ruling, supra, beginning at page 870. The court concluded that a reasonable jury could find that Amoco ratified the wrongful conduct of its employee, or that an employee with managerial capacity actually engaged in the wrongful conduct. The court concurs in the jury’s verdict that Amoco ratified the wrongful conduct. Therefore, Amoco cannot escape liability for punitive damages on this ground.
5. Wins The Punitive Damage Award Excessive?
Amoco argues that even if the jury was entitled to award punitive damages, the award of punitive damages in this case is excessive and violates Amoco’s due process rights. 45 Amoco argues that the punitive *883 damages award was clearly excessive because it was 250,000 times the actual damages award. Amoco argues that such a large punitive award for a trivial wrong is inappropriate. Amoco also argues that the record does not establish that Amoco ever approved of the review of Pulla’s or other employees’ credit card records, and in fact specifically instructed the employee involved in this case that such a thing must not happen again. Amoco did not share the information with anyone, did not profit from it, and did not damage Pulla. Amoco also points out that its conduct was not criminal. In light of the record, Amoco argues that the punitive award was not reasonable.
Pulla argues that the jury’s award should not be set aside since there is no showing of passion or prejudice in the verdict. Pulla argues that the jury could properly have awarded the amount it did in punitive damages to deter Amoco and others from similar egregious conduct- and to punish Amoco for its conduct in this case.
The United States Supreme Court recently addressed the standards for determining whether a punitive damage award is so excessive as to violate due process.
TXO Production Corp. v. Alliance Resources Corp.,
— U.S. —,
TXO stressed what it considered the lack of a reasonable relationship or proportion between the actual and punitive damages awards.
Id.
at -,
The Eighth Circuit Court of Appeals has also recently addressed the constitutionality of a punitive damages award in an
en banc
decision in
Robertson Oil Co., Inc. v. Phillips Petroleum Co.,
.Decisions of the Iowa Supreme Court reflect the same constitutional concerns as these federal decisions and demonstrate that Iowa’s standards for review of punitive damage awards have a definite shape and texture. In order for the post-trial review process to provide sufficiently meaningful constraint on the jury, the Iowa Supreme Court adopted the factors approved by the United States Supreme Court in
Haslip. Spaur,
*885 (1) the defendant’s degree of culpability;
(2) duration of conduct; (3) defendant’s awareness or concealment; (4) the existence of similar past conduct; (5) the likelihood the award will deter the defendant or others from like conduct; (6) the profitability of the wrongful conduct and the desirability of removing that profit; (7) the financial position of the defendant; (8) all the costs of litigation; (9) the imposition of criminal sanctions; and (10) the existence of other civil awards against the defendant for the same conduct. [Haslip, 499 U.S.] at 21-22,111 S.Ct. at 1045 ,113 L.Ed.2d at 22 ; see also Morgan v. Woessner,997 F.2d 1244 , 1257 n. 4 (9th Cir.1993).
Id. The Iowa Supreme Court concluded that it should look at these factors and “others using a general standard of reasonableness to determine at the time of the postverdict review whether a punitive damage award should be upheld.” Id.
The Iowa Supreme- Court, like the United States Supreme Court in
TXO,
has rejected the idea that a determination of the reasonableness of a punitive damages award should focus on the proportionality of the punitive and actual damages award.
Hockenberg,
Under Iowa law, as in the federal decisions cited above, the focus is instead on the relationship between the punitive damages award and the harm the defendant’s conduct did cause or the
potential harm
it could have caused.
Spaur,
We believe our approach reflects this [TXO potential harm] test. In Pringle, for instance, we considered the plaintiffs showing, not the award, of actual damages, in upholding a punitive damages award of $2500. Pringle,282 N.W.2d at 155 . The plaintiffs showing of actual damages in Pringle, although not “potential harm,” *887 constituted a measure of harm analogous to — and perhaps more concrete than — the threat of “potential harm” that the U.S. Supreme Court observed in TXO.
Hockenberg,
In the present ease, the fact that the punitive damages awarded were 250,000 times the actual damages awarded does not carry the weight in the court’s analysis that Amoco suggests, as such proportion is but one factor in the court’s analysis. Furthermore, the court concludes that of greater weight is the court’s belief that the award bore a reasonable relationship to the
potential harm
Amo-eo’s conduct could have caused. Were Amoco or others similarly situated to be undeterred from intruding on the privacy of employees’ credit card records to check up on their use of sick leave or for any other purpose, the aggregate invasion of privacy into sensitive personal matters would be enormous indeed.
49
Any “shocking disparity” between the actual and punitive awards is dissipated when one considers the potential for harm if Amoco persisted in such conduct.
TXO,
— U.S. at-,
The jury’s award in this case is also reasonable in its relationship to Amoco’s financial worth. Amoco’s financial worth is such that the jury could have reasonably concluded a punitive damages award must be sufficiently large to fulfill its deterrent and punitive purpose.
Northrup,
Amoco argues that it specifically instructed the employee involved in this case that such a thing as examination of an employee’s credit card records to check up on their use of sick leave must not happen again. Amoco therefore argues that its conduct was not part of a pattern, was not concealed, and that Amoco took appropriate action as soon as it became aware that Pulla’s credit card records had been reviewed. Amoco seems to argue that it had no culpability for the initial invasion of Pulla’s records. These factors, Amoco argues, indicate the unreasonableness of the punitive damages awarded. However, the court again notes that although Mr. Wieczorek reprimanded Ms. Leckband for examining Pulla’s credit card records, and told her not to repeat this behavior, Mr. Wieczorek immediately ordered a copy of these same credit card records and authorized another Amoco employee to gain access to these records for purposes of copying them. Consequently, it is likely that at least two people read these credit card records after Ms. Leckband’s inappropriate conduct. Furthermore, Mr. Wieczorek’s conduct in reprimanding Ms. Leckband for examining Pulla’s records, then covertly engaging in the same conduct by ordering a copy of Pulla’s records from a different employee, Diana Scott, is further evidence that Mr. Wieczorek knew his conduct was wrong. Amoco’s conduct was not the isolated and brief incident its argument suggests. More telling still is the fact that although Mr. Wieczorek concluded that Ms. Leckband’s tactics were improper and instructed her that they must not be repeated, Mr. Wieczorek referred to the same absences Leckband had used the credit card records to investigate in Pulla’s subsequent employee evaluation. Mr. Wieczorek’s knowledge of these absences was at least in part based on Ms. Leckband’s reading of Pulla’s credit card records; therefore, Mr. Wieczorek used the information improperly obtained in evaluating Pulla’s work performance. Amoco is culpable and liable for the improper conduct because Mr. Wieczorek at the very least reinforced and repeated the challenged behavior himself after acknowledging that it was wrong. An Amoco managerial employee, Mr. Langlois, also testified to his belief that the kind of conduct engaged in here was wrong or illegal. Although Amoco argues that there was no concealment of wrong-doing in this case, Mr. Wieczorek did not disclose Ms. Leckband’s or his own surreptitious review of Pulla’s credit card records voluntarily. Rather, Pulla learned of the review of his records from other, undisclosed employees in telephone calls. Furthermore, immediately after telling Ms. Leckband that her conduct had been improper, Mr. Wieczorek covertly ordered another employee to make a copy of Pulla’s credit card records which he then placed in Pulla’s personnel file, all without disclosing his conduct to Pulla. The court concludes that Amoco concealed its wrong-doing and would have made no disclosure of its review of Pulla’s credit card records had Pulla not learned of it from other sources. Consideration of these factors does not, as Amoco has argued, suggest that the punitive damages award in this case was unreasonable.
The court concludes that none of the other factors identified by Iowa or federal courts mitigate strongly against this punitive damages award. Amoco is correct in arguing that it did not profit directly from its misconduct, but the court concludes that Amoco could have benefited financially from chilling employees’ use of sick leave, even if that use was legitimate, if employees feared improper and invasive investigation any time they claimed sick leave. Although there was no evidence that Amoco engaged in improper conduct similar to that found in this case in the past, or that Amoco has been subjected to other civil awards against it for the same conduct, and no criminal sanctions have or could have been imposed for Amoco’s conduct, the court can only conclude that it was not unreasonable for the jury to seek to deter Amoco from such behavior in the future so that no pattern of this kind of miscon *889 duct would ever develop. Finally, nothing arising from the substance or presentation of the evidence at trial, the conduct or arguments of counsel, or any of the trial dynamics, suggest in any way that the jury’s verdict was the result of passion or prejudice and therefore excessive. Amoeo’s motions must be denied as to the award of punitive damages in this case.
The court’s conclusions in disposition of Amoco’s challenges to the award and size of punitive damages in this case are summarized in the chart below.
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*890 E. Remittitur
Failing any other post-trial relief, Amoco argues that the court should order a remittitur of the punitive damage award in this case.
51
The Eighth Circuit Court of Appeals has held that “[a] district court should grant remittitur only when the verdict is so grossly excessive as to shock the court’s conscience.”
Norton v. Caremark, Im.,
The standard for remittitur applied by the Iowa Supreme Court is similar:
We have previously stated that when the “verdict is so flagrantly excessive that it goes beyond the limits of fair compensation ... and fails to do substantial justice between the parties, it is our duty to correct the error by granting a new trial or requiring a remittitur on pain of the grant of a new trial.” Sallis v. Lamansky,420 N.W.2d 795 , 800-01 (Iowa 1988); see also Ferris v. Riley,251 Iowa 400 , 414,101 N.W.2d 176 , 184 (1960). In determining whether the damage award is excessive, we must abide by the principle that each case depends upon its own facts, and precedents are of little value. Ferris,251 Iowa at 412 ,101 N.W.2d at 183 .
Rees,
[t]his and future reviews will be conducted on the basis of principles previously announced in punitive damages eases. Awards will be tested with a view of the extent and nature of the outrageous conduct, the amount necessary for future deterrence, and with deference to the relationship between the punitive award and plaintiff’s injury, as reflected in any award for compensatory damages. In addition to these traditional factors, we shall consider all circumstances surrounding the conduct and relationship between the parties.
Id. (finding on the conduct and relationship factor of the analysis that the plaintiffs conduct “was provoking as well as provoked”). Applying these factors, the court ordered remittitur of the punitive damages awards because the court found that the punitive damages awarded the plaintiff were “out of proportion to any amount needed, in addition to compensatory awards, for deterrence purposes.” Id.
The court has thoroughly reviewed the evidence in this case, and finds, for all the reasons stated above, that the award of punitive damages here is not so grossly or flagrantly excessive as to shock the court’s conscience. Furthermore, in light of the conduct and relationship between the parties, the punitive damages award is appropriate. *891 Pulla did nothing to provoke Amoeo’s use of such an intrusive method of investigation, which Amoco attempted to undertake surreptitiously. Finally, the court finds that the amount awarded Pulla is not out of proportion to the amount needed for deterrence purposes. The court therefore declines to order remittitur.
III. CONCLUSION
The court concludes that Amoco’s post-trial motions for judgment as a matter of law, and for new trial or remittitur must be denied. Amoco waived its right to move for judgment as a matter of law post-trial by failing to reassert its first motion for judgment as a matter of law at the close of all evidence as required by Fed.R.Civ.P. 50. In light of the amount of testimony and other evidence presented after the first motion for directed verdict, amounting to a full day of-trial, and the issues raised in that testimony, Amoeo’s failure to reassert the motion was not a “de minimis” departure from standard procedures, but a major oversight. Nor does the court find that its decision to take the first motion for judgment as a matter of law under advisement, either alone or in conjunction with any other circumstances presented here, excused Amoco from compliance with the reassertion requirement. Nor did Amoco’s objections to jury instructions substitute for reassertion of the motion for judgment as a matter of law because none of its objections raised in the first motion for judgment as a matter of law was raised again in objections to jury instructions. On the basis of this conclusion, Amoco was at most entitled to assert a post-trial motion for new trial.
However, Amoco failed to preserve all but one of its claims of error for consideration in a motion for new trial by failing to provide adequate objections, or failing to object at all, to relevant jury instructions. The court concludes that Amoco’s objection to punitive damage instructions on the basis of “lack of evidence” did not state distinctly or specify its later objection and the grounds therefor in which it asserted lack of evidence of malice. The court was not persuaded by the argument that “malice” is the essence of a punitive damages award under Iowa law, finding instead that there are no less than four factual inquiries for a jury to resolve on the basis of the evidence presented: actual damages, malice, deterrence, and, in a case like this one involving a corporation as the defendant, ratification. A shotgun objection should not be sufficient to preserve a rifle shot issue. On the other hand, Amoco offered a sufficiently distinct and specific objection to the instruction on ratification as a requirement for liability on the invasion of privacy claim to preserve that issue for consideration on a post-trial motion for new trial. Amoco’s objection to the ratification element of the invasion of privacy instruction, however, did not preserve the issue of ratification as it relates to punitive damages. Tq allow an objection to the underlying claim to stand as an objection to the. companion punitive damages claim, however closely the elements of each may intertwine, would be to excuse a party from the requirements of Fed.R.Civ.P. 51 that objections to instructions be stated distinctly and with specificity.
Although the court concluded that only one issue, ratification as an element of an invasion of privacy claim against a corporation, was preserved for consideration on a post-trial motion for new trial, the court nonetheless, in the alternative, considered all of Amoco’s challenges to the verdict in this case against both the standards for granting a judgment as a matter of law and a new trial. The court concludes that Amoco is not entitled to any post-trial relief. As to Amoco’s challenges to the verdict finding liability for an invasion of privacy, the court finds sufficient evidence in the record from which a reasonable jury could conclude that Pulla suffered mental pain, embarrassment, indignation, and humiliation as the result of Amoco’s unwarranted review of his credit card records, and the court so finds upon its own review. The injuries Pulla complained of, though perhaps not of the “extreme” degree Amoco argued was required to sustain the claim, were nonetheless sufficient under the formulation of damages for invasion of privacy found in the Restatement (Second) of Torts § 652H, in that they were of a kind normally suffered as the result of such an invasion, and were normal and reasonable in their extent. The court concludes that a jury could reasonably find, and the court agrees,' that Amoco had no legitimate interest in *892 reviewing Pulla’s credit card records that outweighed its intrusive methods of using confidential records for a purpose for which they were never intended, surreptitiously, without notice to, or consent or knowledge of, the cardholder. The court concludes that a reasonable jury could, and the court itself does, find that Amoeo’s methods were offensive to a reasonable person. Finally, the court concludes that a reasonable jury could, and the court does, find that Amoco ratified the wrongful acts of its employee when an employee with managerial capacity, Mr. Wieczorek, acknowledged that conduct was wrong, but immediately engaged in it himself covertly. The jury reasonably could, and the court does, conclude that Mr. Wieczorek himself engaged in wrongful conduct committed in the scope of his employment as a supervisor, and, by virtue of his managerial capacity as a supervisor over two “lead” employees and several other employees, bound Amoco for his wrongful acts.
The court concludes that Amoco’s challenges to the award of punitive damages in this ease must also fail on their merits. On the basis of the record here, the court concludes that a reasonable jury could, and the court does, find that Ms. Leckband acted with ill will toward Pulla when she reviewed his records, thus providing sufficient evidence of actual malice to support a punitive damages claim. Furthermore, on the basis of the record here, a reasonable jury could, and the court does, find that Mr. Wieczorek acted with legal malice when he continued conduct he acknowledged to be wrong. The court’s conclusions concerning ratification on the invasion of privacy issue summarized above also stand as its conclusions on this issue as to the punitive damáges claim. Furthermore, the court concludes that on the record here, a reasonable jury could, and the court does, find that there was at least a showing of actual damages providing the essential predicate for an award of punitive damages under Iowa law.
Finally, on Amoco’s assertion that the award of punitive damages in this case is excessive, the court concludes that the award did not have to bear a particular proportion to the actual damages awarded, but to the potential harm to Pulla and others that Amoco’s wrongful conduct could have caused, which was enormous. The size of the punitive damage award was also appropriate to deter similar wrong-doing by Amoco and others, appropriate in the light of Amoeo’s financial condition, Amoeo’s culpability for the wrong-doing suffered by Pulla, and Amoeo’s concealment of that wrong-doing. The award of punitive damages in this case does not shock the court’s conscience such that it feels compelled to order a remittitur. Thus, Amoco’s post-trial motions for relief from the jury’s verdict in this ease are denied.
IT IS SO ORDERED.
. It is important in the context of an invasion of privacy claim to distinguish between the standards for what conduct of the defendant is tor-tious and what injury to the plaintiff is sufficient to sustain the claim. The conduct element is defined in Restatement (Second) of Torts § 652B to be an "intrusion [that] would be highly offensive to a reasonable person,” whereas the resulting injury is defined in § 652H as including the plaintiff's "mental distress.”
Notes
. This and other quotations herein have been redacted to be gender neutral.
. The Restatement (Second) of Torts § 652A defines the forms of the common-law tort of invasion of privacy as follows:
(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another ...; or
(b) appropriation of the other's name, or likeness ...; or
(c) unreasonable publicity given to the other's private life ...; or
(d) publicity that unreasonably places the other in a false light before the public....
. On August 30, 1994, I was appointed United States District Court Judge for the Northern District of Iowa. All federal district judges and magistrate judges in Iowa are cross-designated to preside over matters in both the Northern and Southern Districts.
. Pulla has not made any post-trial challenges to the verdicts against him and in favor of Amoco, so the court will not address any issues pertaining to the ADEA claims here.
. The purpose of this special interrogatory, pursuant to Iowa Code § 668A.1(2), is to fix the amount of the punitive damages award that shall be paid to the plaintiff, and what amount if any of that award shall be paid to a civil reparations trust fund administered by the state court administrator. If the jury answers the special interrogatory in the affirmative, the full amount of the punitive or exemplary damages awarded are paid to the claimant. Iowa Code § 668A.l(2)(a). If the jury’s answer is negative, after payment of all applicable costs and fees, an amount not to exceed twenty-five percent of the punitive or exemplary damages awarded may be ordered paid to the claimant, with the remainder of the award to be ordered paid into the civil reparations trust fund. Iowa Code § 668A.l(2)(b). Neither party has raised a challenge to the special interrogatory or to the jury's finding in response to it. However, it is interesting to note that Iowa is one of only eight states to have passed legislation requiring payment of some portion of punitive damages to the state or state-sponsored funds. The rationale underlying Iowa’s punitive damage legislation is "that ‘a plaintiff is a fortuitous beneficiary of a punitive damage award simply because there is no one else to receive it.'”
Spaur v. Owens-Corning Fiberglas Corp.,
The other seven states with similar punitive damage legislation are: Colorado (Colo.Rev.Stat. s 13 — 21 — 102[4] [1987]), Florida (Fla.Stat. s 768.73[2][b] [1993 Supp.]), Georgia (Ga.Code Ann. s 51-12-5.l[e][2] [1993 Supp.]), Missouri (Mo.Rev.Stat. s 537.675[2] [1992 Supp.]), New York (N.Y.Civ.Prac.L. & R. s 8701 [McKinney 1993 Supp.]), Oregon (Or.Rev.Stat. s 18.540[1] [1991]) and Utah (Utah Code Ann. s 78 — 18 — 1[3] [1992]).
Four of the eight states have addressed the constitutionality of such provisions. Two courts have held such statutes to be unconstitutional.
Kirk v. Denver Pub. Co.,
. Amoco’s objection to submission of the invasion of privacy claim, as presented in its motion for judgment as a matter of law, was as follows:
[BY MR. GRIBBLE:] As to the claim for invasion of privacy, Mr. Pulla has to establish that the intrusion must be highly offensive and objectionable. He has failed to do that.
The final element is that he also must establish that the intrusion caused anguish and suffering. There’s no testimony in the record to establish that the review of the credit card records caused any anguish or suffering, caused any adverse employment action at all to Mr. Pulla, not even a reprimand or a loss of pay through a suspension, no adverse employment action of any kind.
He has not made any other claim with respect to anguish and suffering, thus, [he] cannot meet his prima facie case. And that particular issue, the invasion of privacy, likewise, should not be submitted to the jury.
Transcript Of Proceedings, Volume IV, Defendant's Motion For Judgment Pursuant To Rule 50, May 6, 1994, pp. 6-7.
. Pulla's response to the motion for judgment as a matter of law on the invasion of privacy claim was as follows:
[BY MR. ROSSI:] As to invasion of privacy, Your Honor, we do have one more witness. I am still going to try to get in Plaintiff's Exhibit 76 — or 77 which the Court earlier ruled was not relevant. That particular document states that credit card information will not be supplied to employers.
In this case, Amoco is an employer, and this information was supplied to them in the capacity of an employer, and we believe that is a violation of their own policy. And that's spelled out in the document that the Court refused to allow me to put in as a — as an exhibit.
If that document is not allowed in as an exhibit, we still believe it's a jury issue whether there was an invasion of privacy of my client's records. He testified of being shook up over the event; he testified that he was afraid that he was being watched; he testified that he canceled his card. All of these events would indicate that it’s a jury issue of what the damages are.
In addition, there is an issue of whether or not the events that Amoco did constituted a gross violation of his privacy rights. Thank you.
Transcript of Proceedings, Volume IV, Defendant's Motion For Judgment Pursuant To Rule 50, May 6, 1994, pp. 8-9.
.Transcript of Proceedings, Volume IV, Testimony of Mr. Salvatore Marzullo, pp. 78-90.
. The advisory note to the 1963 amendment to
Fed.R.Civ.P.
50(b) "unequivocally states a ‘motion for a judgment not withstanding the verdict will not lie unless it was preceded by a motion for directed verdict made at the close of the evidence.’ ”
Redd v. City of Phenix City, Ala.,
. The court in Yohannon noted the following exceptions created by other circuits:
(1) the "manifest injustice” exception, see Irvin Jacobs & Co. v. Fidelity & Deposit Co.,202 F.2d 794 , 799 (7th Cir.1953) (noting that "[hinder well established principles, the sufficiency of the evidence to support the verdict is not preserved for review unless this is one of those exceptional cases which render inapplicable the general rule.”) (citations omitted); United States v. Harrell,133 F.2d 504 , 507 (8th Cir. 1943) (recognizing that "a federal appellate court, in order to prevent a manifest miscarriage of justice, may notice an apparent error not properly raised on the record”); (2) the "no evidence" exception, see Hinojosa v. City of Terrell,834 F.2d 1223 , 1228 (5th Cir.1988) (quoting Stewart v. Thigpen,730 F.2d 1002 , 1007 (5th Cir.1984)) (holding that "our inquiry is restricted to 'whether there was any evidence to support the jury's verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in manifest miscarriage of justice' ") (emphasis in original), cert. denied, [493] U.S. [822],110 S.Ct. 80 ,107 L.Ed.2d 46 (1989); Coughlin v. Capitol Cement Co.,571 F.2d 290 , 297 (5th Cir.1978); rule also applies in the Eleventh Circuit, following the principle established in Bonner v. City of Prichard,661 F.2d 1206 (11th Cir. 1981) (in banc) (the Eleventh Circuit adopts Fifth Circuit precedent existing at time of Eleventh Circuit's creation); (3) the "reinterpretation" exception, see, e.g., Sears v. Pauly,261 F.2d 304 (1st Cir.1958) (reinterpreting the sufficiency arguments as an objection to the jury instructions); Warner v. Kewanee Mach. & Conveyor Co.,411 F.2d 1060 (6th Cir. 1969) (preserving review of a sufficiency question by reinterpreting the sufficiency issue as an evidentiary problem, which the court found subject to plenary review), cert. denied,398 U.S. 906 ,90 S.Ct. 1685 ,26 L.Ed.2d 65 (1970).
Yohannon,
. Defendant's Brief In Support Of Joint Motions, p. 11; Defendant's Supplemental Brief In Support Of Joint Motions, p. 10.
. Amoco’s first motion for judgment as a matter of law as to the invasion of privacy claim was quoted above in footnote 6.
. The extent of Amoco’s objections to the punitive damages instructions is as follows:
MR. GRIBBLE: Finally, Your Honor, then, on Instructions Number 26 [Punitive Damages] and 28 [Punitive Damages — The Defendant], defendant would object to those instructions on the ground that there’s not sufficient evidence in the records to justify submitting those instructions to the jury.
Transcript Of Proceedings, Volume IV, Jury Instruction Conference, May 6, 1994, p. 174. Amoco did make a somewhat more specific objection to the ratification instruction, No. 23, in the second of the two jury instruction conferences on the record on May 9, 1994. That objection was as follows:
[BY MR. GRIBBLE:] In addition to the comments on Friday, the defendant would offer the following: As to Instruction Number 23 on ratification, the defendant would object to this instruction on the basis there's no evidence in the record on which the jury could determine that, in fact, the act had been ratified.
Transcript of Proceedings, Volume V, Jury Instruction Conference, May 9, 1994, p. 4. Amoco did not, at the time of this second opportunity to make a record of objections to jury instructions, object to or clarify its objection to the punitive damage instruction referring to ratification, No. 28.
. Amoco does not appear to address the question of whether its “lack of evidence” objection also preserved the ratification question, possibly because it believes that its objection to Instruction No. 23 on ratification also preserves the ratification issue as to Instruction No. 28. The court need not decide this issue, however, because the ratification issue was not raised in Amoco's unrenewed motion for judgment as a matter of law, and the ratification issue is also resolved by the evidence, as is discussed further below.
. The malice element of the instruction given in this case defines it for the jury as "willful and wanton disregard for the rights of another” as required by Iowa Code § 668A.1. See Instruction No. 26. The ratification requirement was presented in both Instructions Nos. 23 and 28.
. The circuits are in conflict over what standard should be applied in diversity cases.
Compare Ross v. Black & Decker, Inc.,
. While Rule 50 was amended effective December 1, 1993, the amendment was technical in nature. The Committee Notes to Rule 50 indicate:
This technical amendment corrects an ambiguity in the text of the 1991 revision of the rule, which, as indicated in the Notes, was not intended to change the existing standards under which "directed verdicts” could be granted. This amendment makes clear that judgments as a matter of law in jury trials may be entered against both plaintiffs and defendants and with respect to issues or defenses that may not be wholly dispositive of a claim or defense.
Fed.R.Civ.P. 50 advisory committee’s note.
. In
United States v. Schay,
[F]his court has, over the last several years, had occasion to consider the standard to be applied in ruling on motions for a new trial several times, and must confess that this court simply does not know with any certainly what standard is to be applied by the trial courts in this circuit. The court respectfully believes that this confusion is occasioned by changing and shifting language contained in various opinions of the Court of Appeals for this circuit.
This confusion has apparently been alleviated by the court's decision in
White v. Pence,
."[P]rior to 1991 amendments made to the Federal Rules of Civil Procedure, a Rule 50 motion was a motion for directed verdict or motion for judgment notwithstanding the verdict. The 1991 amendments merely changed the names of these motions, but the standard for application of this rule remains the same."
Jackson,
. In making the credibility assessments it is entitled to make in determining whether a new trial is appropriate, the court has used the following factors: (1) the interest of the witness in the result of the trial; (2) the witness' relation to any party in interest; (3) the witness’ demeanor upon the witness stand; (4) the witness’ manner of testifying; (5) the witness' tendency to speak truthfully or falsely, including the probability or improbability of the testimony given in light of his or her situation to see and observe; (6) the witness' apparent capacity and willingness to truthfully and accurately tell what he or she saw and observed; and (7) whether the witness' testimony is either supported or contradicted by other evidence in the case.
See United States v. Metrival,
.Comments to the Restatement (Second) of Torts § 652B further clarify this formulation of the tort:
a. The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable [person].
b. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objections in entering his home. It may also be by use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of photograph or information outlined....
c. The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff, or of documents that the plaintiff is required to keep and make available for public inspection. Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters....
d.There is likewise no liability unless the interference with the plaintiff's seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object. Thus there is no liability for knocking at the plaintiff's door, or calling him to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded.... (emphasis added.).
. Restatement (Second) of Torts § 652A, comment d, recognizes that the various forms of invasion may also overlap.
. Amoco cites the following cases from other jurisdictions for the proposition that the right to privacy is not absolute and may be overcome by the defendant's legitimate interest in obtaining
*867
information:
Bloomfield v. Retail Credit Co.,
.Amoco also cites various cases for the proposition that an employer may search its own employment files for information, or obtain credit reports about an employee, or even disseminate information about an employee’s mental condition to managers. However, these cases do not hold that an employer has a legitimate interest in obtaining or reviewing these records, but show instead that courts have balanced the employer’s interest against the degree of intrusion. For example, in
Comeaux
v.
Brown & Williamson Tobacco Co.,
. Transcript of Proceedings, Testimony of Mr. Langlois, Volume IX, pp. 103-06.
. Amoco has also cited the following cases for this proposition:
Brown v. Am. Broadcasting Co., Inc.,
. Defendant’s Supplemental Brief In Support Of Joint Motions For Judgment As A Matter Of Law And New Trial Or Remittur [sic], p. 10.
. Those cases citing § 909 of the Restatement (Second) of Torts and clarifying the meaning of the "managerial capacity” requirement are as follows:
Ramos v. Frito-Lay, Inc.,
. Although the court has ruled that Amoco did not preserve error on the first three questions regarding punitive damages, no preservation of error as to the fourth challenge is required. Rather, due process requires an opportunity for the defendant to challenge the excessiveness of a punitive damage award post-trial.
See Pacific Mut. Life Ins. Co. v. Haslip,
. These purposes of punitive damages have been recognized under Iowa law at least since 1875. In the case of
Ward v. Ward,
Among the objects attained by the allowance of exemplary damages are the punishment of the wrong-doer and the example whereby others are deterred from the commission of like wrongs; and it is often said, such damages are allowed for these purposes. Sedgewick on Measure of Damages, p. 584, note 1; 1 Hillard on Torts, p. 251, note a; Anthony v. Gilbert,4 Blackf., 348 ; Taylor v. Church, 8 N.Y., [452] 342-460; Bailey v. Dean,5 Barb., 297 -303; Roberts v. Mason,10 Ohio St., 277 -280.
Indeed it appears that one of the objects of punishment in all cases is to prevent the repetition of the crime by the culprit and others. The example of punishment, is it presumed, will deter others from the commission of the offense in the future.
Id.
Likewise, almost ninety years prior to
Ward,
in perhaps the earliest punitive damages case in the United States, the jury was instructed “not to estimate the damages by any particular proof of suffering or actual loss; but to give damages for example's sake, to prevent such offences in the future.”
Coryell v. Colbaugh,
. Amoco in fact argues that the jury disregarded the requirements of these instructions in awarding punitive damages. Defendant’s Brief In Support Of Joint Motions For Judgment As A Matter Of Law And New Trial Or Remittur [sic], at pp. 15-16.
. The following states have held an award of nominal damages can support an award of punitive damages:
See Mason v. Jack Daniel Distillery,
. The following states require a recovery of actual damages to support a punitive damage award:
See Robertson Oil Co. v. Phillips Petroleum Co.,
. The following states mandate only a "showing” of actual damages:
First Bank of Boaz v. Fielder,
.The following states are examples of states split as to whether recovery, or merely a showing of actual damages will suffice to support a punitive damage award:
Quiroga v. Allstate Ins. Co.,
We believe that "[t]he most reasonable interpretation of the supposed actual damages requirement is that it is really a defective formulation of an entirely different idea — that the plaintiff must establish a cause of action before punitive damages can be awarded.... Once the facts accepted by the trier show a valid cause of action, however, there seems no reason to deny punitive damages merely because the plaintiff's damages are not pecuniary, or because the jury awards nominal damages, or because it lumps all damages under the punitive label. Indeed, if the defendant's conduct otherwise warrants punitive liability, the need for punishment or deterrence may be increased by reason of the very fact that the defendant will have no liability for compensatory damages.”
Id. (quoting 1 Dan B. Dobbs, Law Of Remedies § 3.11(20), at 515-16 (2d ed.1993)).
.
Pringle
was not the first case in which the Iowa Supreme Court suggested that it was a
showing,
rather than an award, of actual damages was the prerequisite to an award of actual damages. In 1898 the Iowa Supreme Court held that ”[n]o actual damages resulting from the [wrongful conduct] are
shown,
and, as there were no actual damages, punitive damages cannot be assessed, no matter how malicious the defendants’ conduct."
Boardman v. Marshall-town Grocery Co.,
. Instruction No. 24, entitled Invasion of Privacy — Damages, stated in its entirety:
If you find for Plaintiff Pulla on his invasion of privacy claim under Instruction No. 21, you shall consider the following items of damage: mental pain and suffering from the date of injury to the present time; the present value of future mental pain and suffering. Mental pain and suffering may include, but is not limited to mental anguish or loss of enjoyment of life.
*878 If you determine that Plaintiff Pulla is entitled to future mental pain and suffering, you should utilize Instruction No. 2[5] to determine the present value of the future mental pain and suffering.
The amount you assess for mental pain and suffering in the past and in the future may not be measured by any exact or mathematical standard. You must use your sound judgment based upon an impartial consideration of the evidence. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice for or against the parties. The amount you assess for any item of damage on Plaintiff Pulla's invasion of privacy claim may not exceed the amount caused by Defendant Amoco as proved by the evidence.
The amounts, if any, you find for each of the above items will be used to answer the special verdict form with interrogatories at the end of these instructions.
. The Iowa Model Civil Jury Instructions do not contain a nominal damages instruction. A typical example of such an instruction is the following:
If you find that the plaintiff is entitled to a verdict in accordance with these instructions, but do not find that the plaintiff has sustained substantial (actual) damages, then you may return a verdict for the plaintiff in some nominal sum such as one dollar (on account of actual damages).
(The award of a nominal sum on account of actual damages would not preclude your awarding punitive damages in such amount as you deem appropriate, if you find that the award of punitive damages is justified under these instructions.)
Devitt, Blackmar, Wolff, Federal Jury Practice And Instructions: Civil, 4th ed., § 85.18.
. The court in 'Westway Trading first quoted the excerpt from Pringle cited by this court at p. 877, then concluded that
[i]n the present case we have found substantial evidence to support the trial court's finding that plaintiff suffered actual damages but insufficient evidence to support determination of their amount. The predicate for an exemplary damage award under Pringle has thus been satisfied.
Westway Trading,
. In
Vlotho,
the court noted that courts have used the terms "willful, "wanton," and "reckless” as meaning the same thing in their discussions of standards for punitive damages.
Vlotho,
. Transcript of Proceedings, Volume III, Testimony of Mr. Wieczorek, pp. 145-161.
. Amoco asserts that Leckband's reasonable belief that little harm would come to Pulla as the result of her conduct shows that punitive damages are inappropriate, citing
Larson,
. The court has used the factors identified in n. 20, supra, to assess the credibility of Mr. Wieczo-rek's evidence and other testimony. As a result, the court found Mr. Wieczorek’s testimony that he did not review the documents he asked Diana Scott to print out and that he testified he personally took to the personnel department to be unworthy of belief.
. In a recent case the United States Supreme Court noted that “Q]udicial review of the size of punitive damage awards has been a safeguard against excessive verdicts for as long as punitive damages have been awarded.”
Honda Motor Co., Ltd. v. Oberg,
— U.S. —, —,
the Chief Justice explicitly rejected plaintiff's absolute rule against review of damages amounts. Instead, he noted that when the damages are "outrageous" and "all mankind at first blush must think so," a court may grant a new trial "for excessive damages.” [Huckle, 2 Wils.] at, 207, 95 Eng.Rep., at 769.
*883 Id. The Court's survey of the history of judicial review of punitive damage awards showed that English cases after Huckle, "while generally deferring to the jury's determination of damages, steadfastly upheld the court’s power to order new trials solely on the basis that the damages were too high.” Id. The Court noted further that
[cjommon law courts in the United States followed their English predecessors in providing judicial review of the size of damage awards. They too emphasized the deference ordinarily afforded jury verdicts, but they recognized that juries sometimes awarded damages so high as to require correction....
In the 19th century, both before and after the ratification of the Fourteenth Amendment, many American courts reviewed damages for "partiality” of "passion and prejudice.” Nevertheless, because of the difficulty of probing juror reasoning, passion and prejudice review was, in fact, review of the amount of awards. Judges would infer passion, prejudice, or partiality from the size of the award....
Nineteenth century treatises similarly recognized judges' authority to award new trials oil the basis of the size of damage awards....
Modem practice is consistent with these earlier authorities. In the federal courts and in every State, except Oregon, judges review the size of damage awards. See Dagnello v. Long Island R. Co.,289 F.2d 797 , 799-800 n. 1 (CA2 1961) (citing cases from all 50 States except Alaska, Maryland, and Oregon); Nome v. Ailak,570 P.2d 162 , 173-174 (Alaska 1977); Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs., Inc., 88 Md.App. 672,596 A.2d 687 , 709-711, 716-722 (1991), cert. denied,326 Md. 435 ,605 A.2d 137 (Md.1992); Texaco, Inc. v. Pennzoil, Co.,729 S.W.2d 768 (Tex.App.1987); Grimshaw v. Ford Motor Co.,119 Cal.App.3d 757 ,174 Cal.Rptr. 348 (1981); Draper, Excessiveness or Inadequacy of Punitive Damages Awarded in Personal Injury or Death Cases,12 A.L.R.5th 195 (1993); Schapper, Judges Against Juries — Appellate Review of Federal Civil Jury Verdicts, 1989 Wis.L.Rev. 237.
Id.
at-,
. Punitive damages have traditionally borne "disproportionate" ratios to compensatory damages; indeed, one of their historical
raisons d'etre
is to provide a needed additional penalty precisely where compensatory damages are low but the potential for harm was great. In language applicable here, an American court instructing on punitive damages in the mid-nineteenth century explained that "the damages should be in proportion to the degree of malice, and should not be restricted to a mere compensation for the injury actually done, however short it may be of the injury intended," and a defendant should not "be protected from exemplary damages, because the plaintiff’s high character made the assault harmless."
Gilreath v. Allen,
. Incidentally, the Eighth Circuit Court of Appeals noted that "Arkansas, as well as most jurisdictions, follows the rule that an award of compensatory damages must exist before a jury can award punitive damages,” citing
Lake v. Lake,
. Other jurisdictions are split on the importance of a mathematical relationship or reasonable ratio between the punitive and actual damages awarded. The following states still consider the reasonable ratio between actual damages and punitive damages to be, at a minimum, a factor to be considered in evaluating the excessiveness of a punitive damages award:
See Cameron v. Beard,
The following states have held punitive damages should be reasonably related to the plaintiff's injury:
Green Oil Co. v. Hornsby,
The states that no longer consider the ratio between punitive damages and actual damages as important in evaluating the constitutionality of punitive damage awards are:
Schmidt v. Am. Leasco,
The states that consider the relationship between punitive damages and the defendant's conduct are:
Hansel v. Nat'l States Ins. Co.
, — S.C.App. —,
. Brief consideration of the extent of information about an individual revealed by an examination of one’s credit card records illuminates the potential harm from an invasion of privacy of those records. This is especially true given the explosive growth in the use and acceptance of credit cards in contemporary society. It was recently reported that “[b]y the end of 1993, consumers had 1.1 billion credit and debit cards, 12 per household.” Credit Card Use, Profits Set Records, Atlanta J. & Const., June 17, 1994, at E2. In 1992, MasterCard International’s sales in the United States grew 13.8 percent to 113 billion, while Visa U.S.A. posted an 11.5 percent increase to 190.4 billion. Each of these giants in consumer credit cards improved on a single-digit growth rate in 1991. Stephen Kleege, Master-card and Visa Grew By Doubler Digits in 1992, Reuters Bus. Rep., Mar. 8, 1993. The use of credit cards for consumer transactions is staggering. It has been estimated that in calendar year 1991 there were more than 5.6 billion credit card transactions. Kenneth Howe, Visa Banking on Debit Cards, S.F. Chron., Mar. 16, 1992, at Bl. This "plasticazation” of consumer transactions means that credit card records now reveal more intimate details of our lives. This includes information about a person’s physical health (doctor’s visits, prescriptions, treatments, tests, hospitalizations); mental health (psychiatric, psychological, community mental health and marriage counseling or therapy); membership in a host of advocacy, recreational, educational, scientific organizations; political affiliations; religious affiliations; travel; magazine and newspaper subscriptions; social and business activities; and a myriad of other personal details.
. Iowa law does not require a plaintiff to prove a defendant’s financial worth before the plaintiff can recover punitive damages.
Latham Seed Co. v. Nickerson Am. Plant Breeders,
. The United States Supreme Court recently examined the history of remittitur as well:
[R]emittitur — withdrawal of new trial if the plaintiff agreed to a specific reduction of damages — may have been an innovation [in] Dimick v. Schiedt,293 U.S. 474 , 482-485 [55 S.Ct. 296 , 299-301,79 L.Ed. 603 ] (1935). On the other hand, remittitur may have a better historical pedigree than previously thought. See King v. Watson, 2 T.R. 199-200, 100 Eng.Rep. 108 (K.B.1788) (''[0]n a motion in the Common Pleas to set aside the verdict for excessive damages ... the Court recommended a compromise, and on Hurry's agreeing to accept 1500 [pounds] they discharged the rule").
Oberg,-U.S. at-, n. 3,