Fall v. Indiana University Bd. of Trustees

Citation33 F.Supp.2d 729
Decision Date30 December 1998
Docket NumberNo. 3:96-CV-205.,3:96-CV-205.
PartiesLynn FALL, Plaintiff, v. INDIANA UNIVERSITY BOARD OF TRUSTEES, and Daniel Cohen, Ph.D., Defendants.
CourtU.S. District Court — Northern District of Indiana

Thomas R. Lemon, Lemon Reed Armey Hearn and Leininger, Warsaw, IN, for Thomas R. Lemon, mediator.

C. Erik Chickedantz, Hawk Haynie Gallmeyer and Chickedantz, Fort Wayne, IN, for C. Erik Chickedantz, mediator.

Brian J. Hurley, R. Bradley Koeppen, Douglas Alexa Koeppen and Hurley, Valparaiso, IN, for Lynn Fall, plaintiff.

Brian J. Hurley, Douglas Alexa Koeppen and Hurley, Valparaiso, IN, for Ava Garrison, plaintiff.

Susan B. Tabler, Ice Miller Donadio and Ryan, Indianapolis, IN, for Indiana University, Indiana University, South Bend, defendants.

John C. Hamilton, Doran Blackmond Ready Hamilton and Williams, South Bend, IN, Thomas W. Belleperche, Hunt and Suedhoff, Fort Wayne, IN, for Daniel Cohen, Ph.D., defendant.

Michael D. Marine, Susan B. Tabler, Constance Baker Phillips, Ice Miller Donadio and Ryan, Indianapolis, IN, for Indiana University Board of Trustees, defendant.


COSBEY, United States Magistrate Judge.


On October 2, 1998, after a five day trial in this cause, the jury returned a verdict in favor of the Plaintiff on all three counts of her complaint.1 The jury found for the Plaintiff and against Defendant Indiana University ("IU"), on the Plaintiff's Title VII claim, but awarded no compensatory damages against IU. The jury also found for the Plaintiff and against Defendant Cohen on both the Plaintiff's equal protection gender discrimination claim under 42 U.S.C. § 1983 ("§ 1983"), and her state law assault and battery claim, and awarded compensatory damages in the amount of $5,157 against Defendant Cohen. In addition, the jury awarded punitive damages against Cohen in the amount of $400,000 for both the state law and § 1983 claims, for a total punitive damage award of $800,000.

Now before the Court2 are the Plaintiff's "Motion to Alter or Amend Judgment," filed on October 9, 1998, and Cohen's "Motions to Alter or Amend the Judgment and For New Trial," filed on October 16, 1998. The Plaintiff's motion contends that the verdict is inconsistent and seeks to amend the judgment to include the $ 5,157.00 compensatory damage award against Defendant IU. IU filed a response to the Plaintiff's motion on October 16, 1998, and the Plaintiff has chosen not to file a reply. Cohen's motion contends that a new trial should be granted for a variety of reasons, or that in the alternative a substantial remittitur should be imposed on the punitive damage award. The Plaintiff filed a response to Cohen's motion on November 12, 1998, Cohen filed a reply on November 20, 1998, and both motions are ripe for review. For the reasons hereinafter provided, the Plaintiff's Motion to Alter or Amend Judgment will be DENIED, and Defendant Cohen's Motion to Alter or Amend the Judgment and For New Trial will be GRANTED in part and DENIED in part.


A new trial may be granted under Fed.R.Civ.P. 59(a) only where "the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party." Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1367 (7th Cir. 1996) (citations and internal quotations omitted). "A Rule 59(e) motion may only be granted if there has been a mistake of law or fact or if there is newly discovered evidence not previously available." Gendron v. United States, 154 F.3d 672, 674 (7th Cir.1998) (citing Figgie Int'l, Inc. v. Miller, 966 F.2d 1178, 1180 (7th Cir.1992)); see also Deutsch v. Burlington Northern R.R., 983 F.2d 741, 744 (7th Cir.1992). Neither motion can be used to argue matters that could have been made before the judgment issued, nor can they be used to argue a case under a new legal theory. E.g., Federal Deposit Insurance Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986) (Rule 59(e)); Evans, Inc. v. Tiffany & Co., 416 F.Supp. 224, 244 (N.D.Ill.1976) (Rule 59(a)).


Simply stated, the jury in this case was called upon to decide what happened during a meeting between the Plaintiff and Cohen in Cohen's office, behind closed doors, on November 11, 1994. The Plaintiff testified that Cohen grabbed and forcibly kissed her while reaching inside her blouse to fondle her breasts. Cohen, on the other hand, testified that nothing untoward happened during that meeting. The jury believed the Plaintiff's version, but despite the fact that its liability finding was necessarily linked to this single act, it did not award any compensatory damages against IU, assessing the entire compensatory award against Cohen.

The Plaintiff argues that such a result is inconsistent, and contends that since the jury found liability against both Defendants for the same act of discrimination, it necessarily follows that any resulting compensatory damages must be awarded equally against both Defendants.3 Thus, the Plaintiff's motion requests the Court to "correct" the judgment to include liability against IU in the amount of $5,157, which would in effect eviscerate the jury's apportionment of the Plaintiff's damages between the Defendants. The Seventh Circuit has provided clear guidance for analyzing the Plaintiff's argument: "When faced with apparently inconsistent verdict, we are required to reconcile them, if possible, rather than overturn them." U.S. EEOC v. Century Broadcasting Corp., 957 F.2d 1446, 1460 (7th Cir.1992) (citations omitted); see also Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 118-22, 83 S.Ct. 659, 665-68, 9 L.Ed.2d 618 (1963); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962); Burlew v. Eaton Corp., 869 F.2d 1063, 1068 (7th Cir.1989).

Stated somewhat differently, the Plaintiff is really requesting the Court to re-write the verdict so that damages are shared jointly and severally between the two Defendants. The Plaintiff has not pointed to any case law to support the notion that joint and several liability applies between an employer found liable under Title VII and an individual (constitutional) tortfeasor found liable under § 1983, and the Court's own research has not disclosed any opinions even addressing the issue. In any event, it must be recognized that the jury was instructed as follows:

You may impose damages for an injury solely upon the defendant or defendants that you find are liable for that injury ... if you find that both defendants are responsible for a particular injury, you must award damages in proportion to each defendant's responsibility for that injury.

Court's Final Instruction No. 35 (emphasis added). Consistent with this instruction, the verdict form permitted the jury to assess compensatory damages separately against Defendant Cohen and Defendant IU. The Plaintiff acquiesced to the use of Instruction No. 35 and the verdict form, and therefore cannot be heard to complain after the fact that the compensatory damages should not have been apportioned between the Defendants. Bosco v. Serhant, 836 F.2d 271, 281 (7th Cir.1987); McKinnon v. City of Berwyn, 750 F.2d 1383, 1387 (7th Cir.1984). Cf. Bogan v. Stroud, 958 F.2d 180, 184 (7th Cir. 1992) ("the magistrate judge's instruction to the jury that it could award punitive damages absent a finding of actual damages became the law of this case.").

Moreover, even assuming that IU could possibly be held jointly and severally liable for Cohen's act, the particular evidence presented to the jury demonstrated that this was an appropriate case for the jury to properly employ their discretion in apportioning damages between the two defendants. See Gentile v. County of Suffolk, 926 F.2d 142, 154 (2d Cir.1991). Indeed, the jury's distribution of damages is not only explainable, but understandable given the evidence presented at trial. This is not a § 1983 case where it is impossible to distinguish between the two Defendants' contributions to the plaintiff's injuries, as was the case in Cooper v. Casey, 97 F.3d 914, 919 (7th Cir.1996). Rather, this is a case where the evidence at trial demonstrated some factual basis for permitting the jury to establishing an estimate of each defendant's liability for the harm caused. See W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 52, pp. 345 (5th ed. 1984) ("There will be obvious difficulties of proof as to the apportionment of certain elements of damages, such as physical and mental suffering and medical expenses, but such difficulties are not insuperable, and it is better to attempt some rough division than to hold one defendant for the wound inflicted by the other."); 1C MARTIN A. SCHWARTZ AND JOHN E. KIRKLAND, SECTION 1983 LITIGATION: CLAIMS AND DEFENSES § 16.22, p. 316 (3d ed. 1997) ("Apportionment of damages is appropriate so long as there is a factual basis for at least a rough estimate limiting a defendant's liability to that part of the harm caused.")

For example, the Plaintiff testified repeatedly, both on direct examination and in response to cross-examination, that much of the anger and distress for which she sought compensation was directed at IU's failure (in her mind) to terminate Cohen's employment. However, the Court ruled as a matter of law that IU exercised reasonable care to promptly correct Cohen's sexually harassing behavior, see Fall, 12 F.Supp.2d at 881 & n. 11, and accordingly instructed the jury (without objection) that "the Plaintiff is not entitled to any emotional distress damages arising out of her feelings regarding Indiana University's corrective actions." Court's Final Instruction No. 34. Indeed, IU's counsel emphasized this point in closing argument, and therefore the jury was presented with an adequate factual and...

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    • United States
    • United States Appellate Court of Illinois
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    ...Co. , 225 Ill. 2d 456, 487, 312 Ill.Dec. 238, 870 N.E.2d 303 (2006). But Parrillo cites just one case, Fall v. Indiana University Board of Trustees , 33 F. Supp. 2d 729 (N.D. Ind. 1998), which does little to support his argument. In Fall , which involved federal gender discrimination and st......
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1 books & journal articles
  • "Let's Be Reasonable" -- Resolving the Ambiguities of the Faragher-Ellerth Affirmative Defense.
    • United States
    • Defense Counsel Journal Vol. 68 No. 2, April 2001
    • 1 Abril 2001
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