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(NOTE: The status of this decision is Unpublished.) Original WP 5.1 Version

This case can also be found at 353 N.J. Super. 145, 801 A.2d 1158.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1319-00T3 ANN BAKER and BARBARA HAUSLEITER, Plaintiffs-Respondents/ Cross-Appellants, v. THE NATIONAL STATE BANK, (a/k/a CoreStates, its Successor-In-Interest), Defendant-Appellant/ Cross-Respondent, and LEO AHERN, as Regional Manager and individually, and ARTHUR CAMPBELL, as Executive VicePresident, and individually, Defendants. _________________________________ Argued: June 5, 2002 Decided: June 21, 2002 Before Judges Newman, Fall and Axelrad. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-00160-93. David H. Ganz argued the cause for appellant/cross-respondent (Collier, Jacob & Mills, attorneys; Cynthia M. Jacob and Mr. Ganz, of counsel; Mr. Ganz,
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Alan G. Lesnewich and Sandra N. Fears, on the brief). Patricia Breuninger argued the cause for respondent/cross-appellant (Breuninger & Fellman, attorneys; Ms. Breuninger, of counsel, Frederic J. Gross and Susan E. Babb, on the brief). The opinion of the court was delivered by NEWMAN, J.A.D. In this employment discrimination action, on appeal for the second time before this court, defendant National State Bank (the Bank) (subsequently merged with CoreStates and then acquired by First Union National Bank) appeals from the trial court's remittitur of a punitive damages award. The trial court reduced the award of $4 million to $1.8 million. The Bank argues that the court erred in: (1) finding that the remitted award was not a violation of the Bank's constitutional, due process rights; (2) concluding that the unremitted award was not the result of passion, prejudice or mistake; and (3) awarding postjudgment interest on the punitive damages, accruing from the date of the jury verdict. Plaintiffs Ann Baker and Barbara Hausleiter cross- appeal the trial court's remittitur of the punitive damages award, contending that the $4 million award was not excessive. We now affirm both on the direct and cross-appeal. We need not repeat the facts of this case which are set forth in our earlier opinion in Baker v. Nat'l State Bank, 312 N.J. Super. 268 (App. Div. 1998). Our opinion was affirmed by the Supreme Court, except for a remand on the issue of punitive damages, remanding to the trial court to consider whether the punitive damages award violated due process, in light of the standards enumerated by the United States Supreme Court in BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed.2d 809 (1996). 161 N.J. 220, 231 (1999). I. We first address the standard of review to be applied by this court. In Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S. Ct. 1678, 149 L. Ed.2d 674 (2001), the Supreme Court addressed this very issue. The Court held that a trial court's consideration of the three criteria outlined in BMW would be subject to de novo review because an award of punitive damages was not really a "fact tried by the jury." 532 U.S. at 437, 121 S. Ct. at 1686, 149 L. Ed. 2d at 687 (internal quotations omitted). In a footnote, the Court added that it "of course remains true that Court of Appeals should defer to the District Court's findings of fact unless they are clearly erroneous." 532 U.S. at 440 n.14, 121 S. Ct. at 1688, 149 L. Ed. 2d at 689-90. See also Lockley v. Turner, 344 N.J. Super. 1, 27 (App. Div. 2001) (noting recent decision of Cooper and its holding that de novo standard of review applies), certif. granted, ___ N.J. ___ (2002) . In Cooper, the Supreme Court reasoned that independent review was required because punitive damages are designed to exact punishment and therefore should be subject to the same analysis as criminal penalties. 532 U.S. at 432, 121 S. Ct. at 1683, 149 L. Ed. 2d at 684-86. The Court looked to a number of criminal cases involving whether the criminal sentence imposed (death penalty, life imprisonment, punitive forfeiture) was grossly disproportionate to the gravity of the offense, and noted that in each of those cases, the Court engaged in an "independent examination of the relevant criteria." Id. at 434, 121 S. Ct. at 1684, 149 L. Ed. 2d at 686. The Court also rejected the argument that a trial court possessed any advantage in reviewing a punitive damage award. Id. at 440, 121 S. Ct. at 1687-88, 149 L. Ed. 2d at 689-90. Pointing to the three factors outlined in BMW, the Court maintained that a trial court only had a slight advantage over an appellate court in determining reprehensibility, that a trial and appellate court were equally capable of evaluating the ratio, and that an appellate court was more suited to analyzing the third factor, civil penalties imposed in comparable cases, because that "calls for broad legal comparison." Ibid. Because de novo review means that no special deference will be accorded to a trial court's findings of fact and conclusions of law, the trial court's characterization of the evidence in support of the award of punitive damages is of little significance. See Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 81 (1st Cir. 2001) (holding that both extent of punitive damage award and sufficiency of evidence on which it was premised required de novo review).

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De novo review means that a reviewing court may disagree with the lower court's findings and conclusions. See Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981) (stating that with de novo review, reviewing court may disagree with lower court's findings and rulings). In sum, no deference need be paid to the trial court's application of the BMW test. We next focus on the three BMW guideposts. In BMW, the Supreme Court held that a punitive damages award may be so excessive as to violate substantive due process. 517 U.S. 585- 86, 116 S. Ct. at 1604, 134 L. Ed. 2d at 832-33. There, the Court considered a $2 million punitive damages award for misconduct causing $4000 in compensatory damages, a ratio of 500 to 1. Id. at 567, 116 S. Ct. at 1595, 134 L. Ed. 2d at 820-21. The Court concluded that the punitive damages award transcended "the constitutional limit" and remanded for consideration of three "guideposts" to determine whether the award comported with principles of fairness. Id. at 585-86, 116 S. Ct. at 1604, 134 L. Ed. 2d at 832-33. Those guideposts required a consideration of: (1) the degree of reprehensibility of the conduct that formed the basis of the civil suit; (2) the disparity between the harm or potential harm suffered by the plaintiff and the plaintiff's punitive damages award; and (3) the difference between this remedy and other penalties authorized or imposed in comparable cases of misconduct. Id. at 575, 116 S. Ct. at 1598- 99, 134 L. Ed. 2d at 826. II. The Bank contends that its conduct was not so reprehensible as to support even the remitted $1.8 million punitive damages award. Plaintiffs argue that the Bank's misconduct was extremely reprehensible, and the original jury award of $4 million was appropriate. On remand in this case, in its analysis of the first prong of the BMW test, the trial court first quoted verbatim from this court's opinion discussing the Bank's egregious conduct: "Indeed selecting plaintiffs for termination and subsequently searching for reasons to justify that selection is evil minded, intentional wrongdoing. The evidence supported a finding that this occurred. Ahern testified that Campbell told him 'plaintiffs have to go.' When Ahern reported back to Campbell that Baker's file justified her selection but Hausleiter was questionable, Campbell and Ahern then obtained notes and placed them in Hausleiter's file." .... "The evidence further supports the Judge's conclusion that defendant set about to trash the reputations of the plaintiffs. Defendants accused Baker of having bad loans and overdrafts, which was not true. Campbell said that Baker was chosen for termination because of the unsatisfactory performance of her branch, Perth Amboy, but admitted that she was assigned to manager [sic] that branch because of her ability and experience, and further admitted that the branch has [sic] improved in the time that she managed it." Appellate Division went on to say the defendants also accused Hausleiter of problems with her loan portfolio was [sic] not true, which was not true. Ahern admitted that the notes did not criticize Hausleiter. The notes were not originally in Hausleiter's file, and there was no criticism in her performance appraisal. There was evidence that the other discharged employees were not replaced. Campbell was unable to identify any employees on the riff [sic] list besides the plaintiffs who were replaced. The circumstances here are as egregious as those in RENDINE (phonetic) in which the Court approved punitive damages for two plaintiffs who were discharged from their employment when they sought to return after maternity leave despite defendant's promise that their positions would be available. Here, as in RENDINE, the defendant's conduct was devious and dishonest. The trial court then discussed the evidence that it viewed to be indicative of the Bank's reprehensible conduct. In addition to considering the Appellate decision in this regard, the Court finds evidence in support of a conclusion of reprehensibility supported by the fact that plaintiff Baker was blamed for poor conditions which she did not create, that she was terminated after 19 years of service for a younger male who survived only two months at that position. She was subjected to false and insulting allegations and her character and reputation impugned. That in part it was done after the fact in an effort to conceal the true reasons for her termination. That the defendants lied to the plaintiffs in that they were actually told their positions were eliminated, when unlike all the other terminations their
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positions were not. When defendant Ahern asked defendant Campbell how to pick the 10 percent for the riff [sic], he was expressly told[,] Baker and Hausleiter have to go. No one else was singled out. The justifications by Campbell, Ahern and the corporate defendant was [sic] pretextual. Witness Gervasio was supportive of the plaintiffs but never contacted by Ahern, when he would obviously have been an appropriate person to have contacted. Ahern and Campbell fabricated poor performance. That was rebutted by Gervasio [sic], Listach (phonetic), and Couch, as well as the plaintiffs and their personnel files. And not only were they false, the defendants knew them to be false. In discussing reprehensibility in BMW, the Supreme Court noted that it was "[p]erhaps the most important indicium of the reasonableness of a punitive damages award," and identified three "aggravating factors" associated with particularly reprehensible conduct. 517 U.S. at 575-76, 116 S. Ct. at 1599, 134 L. Ed. 2d at 826-27. First, nonviolent crimes were less serious than violent crimes; second, offenses involving "trickery and deceit" were more reprehensible; and third, evidence of repeated, prohibited conduct justified more severe punishment. Id. at 576- 77, 116 S. Ct. at 1599, 134 L. Ed. 2d at 826-27. The Court added that purely economic injury could warrant a substantial penalty when the injury was the result of intentional and affirmative misconduct, or when the target was financially vulnerable. Ibid. However, it cautioned that did not mean all acts that cause economic harm were "sufficiently reprehensible to justify a significant sanction in addition to compensatory damages." Ibid. Thus, in the wake of BMW, one court has stated that the case outlined a "hierarchy of reprehensibility," with acts and threats of violence at the top, "followed by acts taken in reckless disregard for others' health or safety, affirmative acts of trickery and deceit, and finally, acts of omission and mere negligence." Florez v. Delbovo, 939 F. Supp. 1341, 1348-49 (N.D. Ill. 1996). In that context, it is plain that the Bank's actions do not reach the top of the reprehensibility scale. Its termination of plaintiffs, although discriminatory, was nonviolent and did not involve repeated, prohibited conduct. However, the Bank's actions did involve trickery and deceit. The Bank decided first to terminate plaintiffs and then provided reasons to justify its decision, including the placement of Gervasio's notes into Hausleiter's personnel file and the explanation which was successfully rebutted at trial, that both plaintiffs had poor loan portfolios. Plaintiffs were also initially told that their positions had been eliminated; that turned out to be false as two younger employees were transferred to their branch management positions. Moreover, this case did not involve pure economic loss as plaintiffs were awarded damages for emotional pain and suffering, and thus sustained personal injuries. With respect to financial vulnerability, they struggled financially following their termination and had to reduce their standards of living considerably. The second BMW factor requires an examination of the ratio between the harm, or the compensatory damages award and the punitive damages award in order to determine whether a "reasonable relationship" exists between the two. BMW, supra, 517 U.S. at 580, 116 S. Ct. at 1601, 134 L. Ed. 2d at 829. In BMW, the Court rejected "the notion" that an unconstitutional ratio could be determined by a "simple mathematical formula," stating that it could not "draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case." Id. at 583, 116 S. Ct. at 1602, 134 L. Ed. 2d at 831. The Court emphasized that a "general concern of reasonableness" was most crucial. Ibid. Here, the trial court briefly discussed the ratio, noting that while the Punitive Damages Act (PDA), N.J.S.A. 2A:155.9 to -5.17, excluded LAD cases from its limitation of punitive damages to a five to one ratio, that ratio should be considered a general guideline. In making that statement, the trial court followed our Supreme Court's ruling in this case. The Court specifically stated that on remand, the trial court "may consider but is not bound by, the Legislature's judgment of five times compensatory damages as a normative measure of the limits of proportion." Baker, supra, 161 N.J. at 231. As an initial matter, both parties disagree as to the amount of the compensatory damages for purposes of determining the ratio. The jury awarded plaintiffs compensatory damages on the following basis: Baker Back Pay from 10/29/91 - 3/29/93

$35,824

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Front Pay from 3/29/93 - 7/1/96 $42,916 Emotional pain and suffering $57,000 $135,740 Hausleiter Back Pay from 10/29/91 - 3/29/93 $19,967 Front Pay from 3/29/93 - 7/1/96 $39,274 Emotional pain and suffering $53,000 $112,241 In the order incorporating the jury verdict, the trial court added prejudgment interest, running from December 30, 1992, the date the complaint was filed, to July 1, 1996. The court added $19,349 in interest to Baker's award, and $15,994 to Hausleiter's award, making Baker's total $155,089, and Hausleiter's $128,235. The Bank contends that the relevant compensatory damages for purposes of the ratio are only the emotional pain and suffering awards. Plaintiffs argue that the total sum, comprised of back pay, front pay, emotional pain and suffering, interest, and attorney's fees must be considered. Plaintiffs further argue that the amount of compensatory damages is actually higher because they were never awarded any "true" front pay. We reject the Bank's contention that compensatory damages means only pain and suffering. Compensatory damages include money damages awarded to a plaintiff "by way of compensation, to make up for some loss that was not, originally, a money loss but one that ordinarily may be measured in money." Dan B. Dobbs, Remedies, "Principle of Damages,"

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