Judge Douglas W. Stern, Case 19STCV35955 2023-03-22 Tentative Ruling

MALISSA WHITE, an individual,

Plaintiff,

ROCKPORT ADMINISTRATIVE SERVICES, LLC; OVERLAND TERRANCE HEALTHCARE & WELLNESS CENTRE, L.P., dba COUNTRY VILLA SOUTH; and DOES 1 through 50, inclusive,

Defendants.

Case No.: 19STCV35955

ORDER ON MOTION FOR NEW TRIAL AS TO DAMAGES

and

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

Trial: Jan. 9 – Jan. 13, 2023

Hearing Date: March 22, 2023

Plaintiff Malissa White obtained a jury verdict of $1,200,000 for emotional distress damages in this constructive wrongful termination case.

Plaintiff claimed no economic damages, as she obtained a similar new job within 2 weeks of her resignation at a substantially greater compensation rate. She had no loss of income.

Plaintiff claimed no medical expenses were incurred, as she sought no medical care whatsoever for her emotional injury.

She claimed no expenses for medication of any type whatsoever as she obtained no medications of any type to deal with her emotional distress.

She presented no medical testimony from anyone attesting to any emotional distress or medical/psychological injury of any type whatsoever.

Additionally, Plaintiff’s testimony as to the nature of her emotional suffering showed the claimed suffering to be of relatively minor nature. She described it as panic attacks at random times lasting a couple of minutes, resolved by “tak[ing] a breather.”

Plaintiff provided testimony regarding her stress arising from the underlying workplace events that ultimately caused her to conclude that her situation necessitated her resignation. Even crediting this evidence of adverse consequence, emotional injury, or damages, it was not of a nature and duration that justified the jury’s $1.2 million verdict.[1]

Her claim for damages was based solely on her own testimony that she suffered stress, panic attacks and anxiety from her claim that her employer, Overland Terrance Healthcare & Wellness Centre, L.P. (hereinafter “Overland”) constructively wrongfully terminated her employment. She claimed that she witnessed improper pre-signed Medicare authorizations. Because her job duties included approving the use of the Medicare forms, Plaintiff believed that this placed her at both civil and criminal risk. This situation led her to conclude that she must resign. It is that resignation that she claims constitutes her constructive wrongful termination.

The evidence did not support that excessive award of $1,200,000 in general damages for emotional distress. The award is the product of the excessive focus on the assertion that Defendant Overland was committing Medicare fraud and the desire of the jury to punish Overland for that claimed bad behavior.

Plaintiff was employed at Overland, a skilled nursing facility known as Country Villa South from March 2018 until she tendered her resignation effective May 10, 2019. The operative events that gave rise to Plaintiff’s concerns took place from about February 2019 to April 2019. While employed by Overland Plaintiff observed some pre-signed Medicare forms a few months prior to her resignation. Doctors were required to sign the forms. She concluded that this practice was improper under Medicare law. She also believed that some were forged. She understood that use of the pre-signed Medicare forms constituted a crime and might subject her to civil and criminal liability. She reported the matter to the California Department of Public Health, the United States Health and Human Services Office of Inspector General and to management in her own organization. No adverse action came of her complaints to the governmental agencies. Plaintiff believed that the conduct constituted Medicare fraud.

Although Plaintiff complained internally within Overland, no corrective action was taken by Overland. Plaintiff’s perception that Medicare fraud was going on at Overland, and that she might be implicated in it due to some of her responsibility caused Plaintiff to conclude that she must resign. Ultimately, after a few months, Plaintiff concluded that the situation was untenable and placed her at personal risk of both civil and criminal liability. She claimed that her resignation constituted a constructive wrongful termination. The jury agreed.

Plaintiff’s last day at Overland was May 10, 2019. Almost immediately she found a new job making more money. (January 12, 2023, pg. 30:4-23; 33:2-7.) At trial Plaintiff expressly disavowed any claim that she had suffered any loss of income or any other economic harm as a result of her constructive wrongful termination. The evidence showed that she incurred no medical expenses of any type whatsoever. She saw no medical or psychological professional. She expended no amount for medication. On the contrary, the entire basis for an award of damages was for general damages for stress, anxiety, and distress that Plaintiff claimed to have suffered.

Defendant Overland has filed this Motion for New Trial as to Damages.[2] Overland relies on Code of Civil Procedure § 657 and 659. It specifically cites C.C.P. § 657(1), (2), (3), (5), (6) and (7) as the basis for the Motion.

The Court shall focus first on the claim that the damages awarded by the jury – $1,200,000 – is excessive.

“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside.” (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387, 93 Cal.Rptr. 769, 482 P.2d 681 (Jiminez).) A new trial order “‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412, 93 Cal.Rptr.2d 60, 993 P.2d 388.)” Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1275–1276 [227 Cal.Rptr.3d 695, 718]

A judge may grant a new trial based on excessive damages under C.C.P. § 657(5) if, after weighing the evidence, the judge is convinced from the record, including reasonable inferences, that the jury clearly should have reached a difference verdict. (C.C.P. § 657.) A judge ruling on a motion for a new trial on the ground of excessive damages must weigh the evidence and act as an independent trier of fact. (Ryan v. Crown Castle NG Networks, Inc. (2016) 6 Cal.5th 775, 784; County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.4th 1108, 1121.) The judge may review conflicting evidence, weigh its sufficiency, consider the witnesses’ credibility, reject any testimony that the judge concludes is false, and draw reasonable inferences from the evidence. (Baker v. American Horticulture Supply, Inc. (2010) 186 Cal.4th 1059, 1069.) A judge may grant a new trial under C.C.P. § 657(5) on the issue of damages when the evidence was too speculative to support the award of damages. (See Toscano v. Greene Music (2004) 124 Cal.4th 685, 695-697.)

“In California, a trial court reviews a motion challenging the excessiveness of an award of punitive damages similar to other motions for new trial, as a “thirteenth juror”: “The trial court is in a far better position than an appellate court to determine whether a damage award was influenced by ‘passion or prejudice.’ (Code Civ. Proc., § 657.) In reviewing that issue, moreover, the trial court is vested with the power, denied to us, to weigh the evidence and resolve issues of credibility. [Citation.]” (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 919, 114 Cal.Rptr. 622, 523 P.2d 662.) We review the trial court’s determination for an abuse of discretion.” Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1689 [26 Cal.Rptr.3d 638, 676]

The Court shall not attempt to abstract or repeat from the entire trial transcript the evidence of Plaintiff’s damages. It was quite limited. Instead, the following exchange encapsulates the sum and substance of the damages claimed by Plaintiff.

Q Besides this trial, between the time you left CV South [Overland] until now, have you had any panic attacks?

Q Do you experience these attacks with any regularity, or are they just kind of random?

Q Prior to witnessing the conduct that you refused to participate in, do you recall having any panic attacks?

Q So let’s stick with these panic attacks. You are a medical professional; right?

Q You understand that there are medical professionals that are available and trained that can help you deal with that; right?

“Q Now, that Friday night after you got your threatened write-up, that was the first time you had ever suffered a panic attack; right?

Q So the entire time you worked at CV South through the time you resigned on May 8th, you had never suffered any panic attack, had you?

“Q Now, we have covered this, but you never sought any treatment for any emotional distress?

Plaintiff also testified to the stress she experienced dealing with the Medicare forms and her complaints. This is discussed in greater detail in section 4 below.

No medical professional ever diagnosed any medical/psychological or other condition claimed by Plaintiff.[3] No testimony other than Plaintiff’s own testimony was presented on the issue of the consequences/damages that Plaintiff claimed that she experienced. And that testimony was exceedingly minimal regarding the nature, quality and quantity of the claimed consequences.

Plaintiff acknowledged that within two weeks after she left Overland she had secured a similar new job that paid her substantially more. She was pleased with the new job and remained there years. (Defendant’s Exh. D-7, January 12, 2023, pg. 88:23-28.)

The Court recognizes that Plaintiff’s own testimony is sufficient to support an award of non-economic damages for emotional distress. It is not mandatory that an expert (such as a medical professional) testify to the details of the claimed emotional distress. Knutson v. Foster (2018) 25Cal.App.5^th 1075, 1099. However, if the Court fully credits the Plaintiff’s own testimony, the nature of the claimed adverse consequences as described by Plaintiff does not justify the excessive award of $1,200,000.

Taking the evidence as a whole, Plaintiff’s testimony of the stress, panic and anxiety and all aspects of it described by Plaintiff was not of such a nature, duration, and quality that an award in the range given by the jury was justified by the evidence. Since the evidence does not support the $1,200,000 award the Court GRANTS the Motion for a New Trial on Damages.

4. The Claim that the Damages Improperly Included Stress from Working at Overland Rather than from the Constructive Discharge

Defendant claims that it is entitled to a new trial on damages for the additional and independent reason that Plaintiff suffered her emotional distress “as a result of her employment at County Villa South [Overland] as opposed to the termination of that employment.” (Motion pg. 10:20-21.) This, claims Defendant, led to the inclusion of damages that were not proximately caused by the constructive wrongful termination. Plaintiff’s counsel agreed that Plaintiff sought to recover damages from the stress she claimed from the workplace situation, but he disagreed that this was improper or not allowable in a constructive wrongful discharge case.

“MR. MOSCHOPOULOS: No. I’m asking her for her understanding [about what Alex Castillo meant in a particular text]. Why is that important? Because in her mind, she’s being told – she’s a participant. As part of her role in a triple-check, in submitting – certificate that were procured either by fraud or false or improper, she knows, based on her training and based on their own manual, that every time she does that, she faces thousands in penalties and she faces a federal crime of Medicare fraud.

Those are the intolerable conditions. The write-up, that’s just the straw that broke the camel’s back. It’s everything that happened before the write-up. Having to go into a job day in, day out where you are asked to participate in a scheme to defraud, those are the intolerable conditions that forced her to quit. And that’s what she’s testifying about.

So her understanding and the effect of that text message on her is directly relevant to the claims in this case for emotional distress.[4] That’s why we are dwelling on it.”

Thus, as Plaintiff points out, Plaintiff provided testimony regarding her reaction to the conduct that involved the improperly signed Medicare forms. (See Plaintiff’s Exh. A, January 11, 2023, pg. 148:9-24 “I was angry -- a bit angry. I was scared and didn’t want to be a part of that.” Plaintiff’s Exh. A, January 11, 2023, pg. 149:24-150:3; 151:6-16.)

Plaintiff testified about her conversations when she pointed out her claims of impropriety and illegality and how it was the conversations and her perception that no action was being taken to rectify the situation that cause her stress. (Plaintiff’s Exh. A, January 11, 2023, pg. 155:3-27.) She claimed that she was affected by the lack of anything changing. (Plaintiff’s Exh. A, January 11, 2023, pg. 160:28-161:15.)

She got angry when she was properly written up on March 29, 2019 for her own conduct that actually was a violation of Overland policy.

“Q Now, when you got that write-up, can you tell us a little bit about what was going on inside.

A I was angry. I was -- at that point I don’t know -- I was in a battle with myself whether to stay at that company or to leave because at that point I had had enough.”

Plaintiff continued to focus on the reaction she had as a result of observing the claimed illegal conduct and her perception that nothing was changing.

Q Can you tell us a little bit about how the conduct that you observed at CV South [Overland] has affected you emotionally.

THE COURT: So you are going to tell me this case is about the retaliation,[5] not just what she observed, and you are absolutely right. And counsel is trying to make this about the bad conduct. You are absolutely right. So I agree with that.

MR. De CASTRO: That is the beginning of what I was going to tell you. The emotional distress that she may have suffered from seeing things is not recoverable in this action. It is not relevant. It is highly prejudicial. The only thing that is relevant is the emotional distress that she may have suffered from losing that job or a retaliatory adverse employment action taken against her. That’s it.

THE COURT: * * * Counsel, I must admit everything so far has been about her reaction to what you characterize as illegal conduct. And I do tend to agree -- in generalities, anyway -- with defense counsel.

You have to prove the causation associated with the purported retaliation. The fact, for instance -- well, I’ll ask you. Assume there was no evidence of retaliation; it didn’t take place; no one took adverse action against her. Do you have a viable cause of action? If so, what is it?”

This line of testimony continued with Plaintiff commenting that she is still scared and then she described her panic attacks and anxiety (quoted above). (Plaintiff’s Exh. B, January 12, 2023, pg. 36:24-38:6.) She described her random panic attacks when she hyperventilates for a couple minutes and needs to take a breather.

The Court agrees that the damages in this constructive wrongful termination case must flow from the wrongful termination, and not be emotional distress arising from the underlying work situation and claimed Medicare fraud causing Plaintiff stress.[6] (See Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1276–1277 [227 Cal.Rptr.3d 695, 719][7]). In this case the testimony of Plaintiff limited her claim to panic attacks taking place after she tendered her resignation.

“Q Now, that Friday night after you got your threatened write-up, that was the first time you had ever suffered a panic attack; right?

Q So the entire time you worked at CV South through the time you resigned on May 8th, you had never suffered any panic attack, had you?

Having noted this testimony, Defendant is correct in noting that Plaintiff’s counsel did not limit his argument to the jury to seeking damages for the emotional distress she suffered as a result of the constructive wrongful termination. On the contrary, Plaintiff argued for compensation focused largely on the claimed Medicare fraud and emotional distress arising out of that scenario. He even argued for compensation for the humiliation of having to participate in trial. In his rebuttal closing argument counsel stated to the jury:

“And your job is to evaluate the full value of what was taken, what can never be realized. Imagine for a moment Malissa is sitting one night at 6:00 o’clock in the evening, maybe, right around dinner time. There’s a knock at the door. She goes. She answers it. It’s a man with a briefcase.

“Tomorrow morning, you are going to go into your job. You are going to make a choice. You are going to do things that you know are a federal crime. And the choice you are going to have to make is your job or jail.”

“No, thanks. I don’t really care what you have in the bag. I’m not interested.”

“But no, no. Wait. Let me get all my conditions out first before you turn me down. You are going to complain about these things. You are going to complain about these things to your employer. You are going to complain about these things to the state agencies. You are going to complain about these things to the federal government.

“No one is going to really respond. But your employer, they are going to investigate it. And after they investigate, they are going to determine maybe you are just being a little lazy.”

“Well, wait, wait, wait. But let me finish. Let me finish. You are going to have to struggle a little bit with your family relationships, have some arguments with your husband.”

“Can I finish? You are going to get panic attacks. You are going to get panic attacks.”

“But I’m still not done. For this money, you get to be called a liar and greedy, humiliated.”

“Listen, you are taking time away from me,” she would say. “I don’t care what you have in that briefcase. Get lost.” She goes to close the door.

Right as she goes to close the door, the man puts his foot in the door, keeps her from closing it, throws the briefcase full of money in and says, “Too bad. It’s your problem now. You have no choice in the matter.”

How much should be in that briefcase to compensate her for what they took that can never be put back? That’s for all of you to decide.”

The argument of counsel led the jury to believe that it should compensate Plaintiff for items that were not causally related to the liability theory – constructive wrongful discharge. Hence, this is yet an additional and independent basis for granting a new trial on the issue of damages.

5. Plaintiff’s Repeated Emphasis on the Bad Acts of Overland Led to the Jury to Award Damages to Punish Overland

The Court notes that the general tenor of the presentation of evidence by Plaintiff was to focus on the “bad acts” of Overland in engaging in alleged Medicare fraud. The focus of the presentation to justify the award of millions of dollars of damages was the need to “hold a company accountable.” (Defendants Exh. B-9, January 10, 2023, pg. 63:1-5.)

In a nutshell, Plaintiff’s presentation convinces that Court that it motivated the jury to make an award that was intended to punish Overland for the claimed Medicare fraud, rather than to compensate Plaintiff for the damage that she proved she had suffered by the constructive wrongful termination. The Court concludes that this tactic succeeded and that the jury was motivated and inflamed by the claimed Medicare fraud, and failed to understand that when it came to awarding damages to Plaintiff the focus must be on the injury suffered by Plaintiff, not the “bad acts” of Overland.

For this additional reason, the Court GRANTS the Motion for a New Trial on Damages.

Defendant contends that Plaintiff improperly conditioned the jury during voir dire by counsel’s repetitive reference to awarding millions of dollars for emotional distress. The transcript excerpts attached to Defendant’s Motion demonstrates the numerous times that Plaintiff’s counsel referenced a million-dollar award during voir dire. The Court similarly noted the unacceptable repetitive mentioning of a million-dollar award.

“So back to the comments made by Mr. Ryan. You might be all okay with the idea of money for emotional distress, but he mentioned millions of dollars; right?

The repetitive nature of the questioning of the prospective jurors with continual references to awarding millions of dollars for emotional damages was regrettable and overdone. By the same token, it is proper to question jurors about their ability to follow the law and award properly proven damages. Fernandez v. Jimenez (2019) 40 Cal.App.5th 482, 493–494. It is proper to explore whether prospective jurors have artificial limits or boundaries on what they will award as damages irrespective of what the evidence shows. On balance, the Court does not find that a new trial on damages should be granted based on the issue of Plaintiff’s counsel’s repetitive mention of awarding millions of dollars for emotional distress.

7. Plaintiff was Entitled to Argue the Jury Instructions Regarding the Failure of Defendant to Introduce Certain Evidence

Defendant claims that Plaintiff’s counsel crossed the line by pointing out to the jury certain jury instructions regarding how they may view evidence and the failure of Defendant to present certain evidence. There was no improper argument presented by Plaintiff’s counsel on this point. Plaintiff was entitled to point out to the jury the failure of Defendant to put on certain evidence. The jury was entitled to draw reasonable inferences from that fact.

The Court previously granted non-suit in favor of Rockport Administrative Services, LLC. Both defendants had made a motion for non-suit during the trial. The Court had taken the motion under submission and had not entirely ruled by the time the jury returned its verdict.

Plaintiff had suggested that it was no longer proper for the Court to grant the non-suit after the jury had reached a verdict. Plaintiff suggested that the proper motion would be a Motion for Judgment Notwithstanding the Verdict. The Court rejected that assertion and granted Rockport’s non-suit motion. (See January 27, 2023 Order.) However, in an apparent abundance of caution Rockport has included itself in this JNOV motion.

The Court shall grant Rockport’s JNOV motion just as it had granted the non-suit, and for the same reasons set forth in the Court’s January 27, 2023 Order on Defendants’ Motion for Non-Suit.

8. The Standard for JNOV is Identical to that of a Motion for Non-Suit and Directed Verdict

On the face of Code of Civil Procedure § 629 it is noted that the standard for granting JNOV is identical to the standard that the trial court applies on a motion for directed verdict.[8]

“‘The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] “A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” [Citation.]’” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877–878, 151 Cal.Rptr. 285, 587 P.2d 1098.) The trial court cannot consider witness credibility. (Id. at p. 877, 151 Cal.Rptr. 285, 587 P.2d 1098.)” Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510 [65 Cal.Rptr.2d 266, 272–273], as modified (July 18, 1997)

The Court is obligated to deny a motion for Judgment Notwithstanding the Verdict if, indulging all reasonable inferences from the evidence in favor of the victorious party, the Court finds that there is “substantial evidence” (meaning the minimum necessary) to support the verdict. Unlike the standard applied above to the new trial motion, here the Court plays a very limited role.

“Plaintiff’s evidence must be “substantial evidence” which has been described as “more than a scintilla.” “A mere ‘scintilla of evidence’ does not create a conflict for the jury’s resolution; ‘there must be substantial evidence to create the necessary conflict.’” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291, 253 Cal.Rptr. 97, 763 P.2d 948 (Nally).)” Holistic Supplements, L.L.C. v. Stark (2021) 61 Cal.App.5th 530, 540–541.

The Court must understand the legal standard applied to the cause of action on which Plaintiff prevailed in order to then determine if there is substantial evidence supporting that verdict.

“Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1245, 32 Cal.Rptr.2d 223, 876 P.2d 1022 (Turner).)

To establish a constructive discharge, an employee must prove “that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner, supra, 7 Cal.4th at p. 1251, 32 Cal.Rptr.2d 223, 876 P.2d 1022.)

Turner further tells us that, “[i]n order to amount to a constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” (Turner, supra, 7 Cal.4th at p. 1247, 32 Cal.Rptr.2d 223, 876 P.2d 1022; see id. at p. 1246, 32 Cal.Rptr.2d 223, 876 P.2d 1022 [“The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.”].)” Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1270 [227 Cal.Rptr.3d 695, 713–714]. (Bold Added.)

The standard by which a constructive discharge is determined “is an objective one, and the proper focus is on the working conditions themselves.” (Gibson, supra, 32 Cal.App.4th at p. 1637, 38 Cal.Rptr.2d 882, citing Turner, supra, 7 Cal.4th at pp. 1248, 1251, 32 Cal.Rptr.2d 223, 876 P.2d 1022.” Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1270 [227 Cal.Rptr.3d 695, 714]. (Bold Added.)

Plaintiff's contention is simply contrary to law, which imposes an objective standard, and requires “the proper focus [to be] on the working conditions themselves,” and “not on the plaintiff’s subjective reaction to those conditions.” (Gibson, supra, 32 Cal.App.4th at pp. 1636, 1637, 38 Cal.Rptr.2d 882.)” Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1275 [227 Cal.Rptr.3d 695, 718]. (Bold Added.)

Plaintiff notes that Defendant sought a non-suit, and the standard is the same. Plaintiff argues that the Court should again reach the same conclusion and deny Overland’s motion for Judgment Notwithstanding the Verdict.

“‘An employee may not be unreasonably sensitive to his [or her] working environment.... Every job has its frustrations, challenges, and disappointments; these inhere in the nature of work. An employee is protected from ... unreasonably harsh conditions, in excess of those faced by his [or her] co-workers. He [or she] is not, however, guaranteed a working environment free of stress.’ ” (Goldsmith v. Mayor and City of Baltimore (4th Cir. 1993) 987 F.2d 1064, 1072.)” Id. at 1246– 1247.

It is noteworthy that much of Plaintiff’s testimony during trial was focused on her reaction to the workplace situation and her frustrations and stress from the situation. She was repeatedly asked at trial about how events at work made her feel. Hence, much of the evidence focused on her subjective reaction to what she observed, what she perceived was or was not happening, and what her personal reaction was to all that. As noted above, the proper focus is on an objective standard and not on Plaintiff’s subjective reaction to those conditions.

However, taking the totality of the evidence into consideration and indulging all reasonable inferences in favor of the jury verdict, as before, the Court concludes that there was that minimal amount of evidence supporting the verdict – “substantial evidence” – such that the verdict must be upheld.

With the applicable legal principles in mind, the Court (again) concludes that Plaintiff presented “substantial evidence” that would allow a rational trier of fact to find for Plaintiff on the claim that she was constructively discharged in violation of public policy. The evidence, viewed most favorably to the Plaintiff, showed that Medicare forms were being pre-signed at Overland. Plaintiff believed that the practice she was observing was in violation of Medicare procedures and law. The evidence would allow the reasonable inference that such forms were being used to submit claims for Medicare payments in violation of law. As part of her job requirements Plaintiff performed duties that she reasonably believed might subject her to liability for the use of the Medicare forms. The jury concluded that under these facts Plaintiff was placed in an intolerable position of possibly having liability for wrongful acts because of this. She was therefore constructively discharged by being placed in the position of either remaining employed at Overland and running the perceived risk of possible civil or criminal exposure for her involvement in the activities or resigning.

The Motion of Overland for Judgment Notwithstanding the Verdict is DENIED. Rockport’s Motion for Judgment Notwithstanding the Verdict (previously granted as a non-suit motion) is again GRANTED.

4. A trial scheduling conference is ordered for May 23, 2023 at 8:30 a.m. in Department 68 of this Court.

[1] / As discussed below in Section 4, most of the claimed stress experienced by Plaintiff was a result of the events that ultimately led her to believe that she should resign. Plaintiff claimed that the failure of Overland to properly address her claims caused her to conclude that she must resign. Most of these “stress” consequences existed whether Defendant had taken steps to address Plaintiff’s concerns or not. It was not proximately caused by the constructive wrongful termination of Plaintiff but instead was caused by the underlying conduct of Defendant Overland unrelated to the termination.

[2] / The Court previously granted the Motion of Defendant Rockport Administrative Services, LLC for non-suit and therefore it has not joined in this motion.

[3] / Since there were no medical professionals of any type involved with the Plaintiff, there was no medical testimony evaluating the purported cause of the panic attacks.

[4] / Plaintiff’s claim for intentional infliction of emotional distress was dismissed by the Court.

[5] / The Court dismissed the retaliation claim.

[6] / Any stress that Plaintiff might have suffered simply because of the fact that she worked at a business that she believed was engaged in Medicare fraud would not be compensable in this wrongful termination case if Overland had addressed the claim and took corrective action, as Plaintiff admitted that it was the failure to adequately address her complaint that caused her to resign. In that case there would be no basis for claiming constructive wrongful termination.

[7] / The court in that case stated: “Later that day, the court issued an amended ruling, adding this explanation: “[T]he granting of the motion for a new trial includes the issue of the noneconomic damages awarded on the ground that it is not possible to determine what portion, if any, of said damages was based on the claim of a constructive discharge which is an adverse employment action. There was substantial evidence of [plaintiff's] emotional distress arising from the events that are the basis of his claims of discrimination. Those claims, however, included his distress arising from the conditions that he considered to be the basis of a constructive discharge and the effect and consequences of that discharge on his emotional health. It is not possible to separate what damages may have been awarded for the discrimination alone from what noneconomic damages were awarded that included a constructive discharge. It is probable that the jury’s award of noneconomic damages included some compensation for the constructive discharge which is an event of a very different character than a voluntary resignation.”

[8] / “(a) The court, … on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.”