Freeman v. Package Machinery Co.

Decision Date07 June 1988
Docket NumberNo. 88-1130,88-1130
Citation865 F.2d 1331
Parties49 Fair Empl.Prac.Cas. 1139, 48 Empl. Prac. Dec. P 38,456, 27 Fed. R. Evid. Serv. 198 Iver J. FREEMAN, Plaintiff, Appellee, v. PACKAGE MACHINERY COMPANY, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Anthony J. Crement, with whom Jeffrey S. Heller, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., Maurice M. Cahillane and Egan, Flanagan & Egan, Springfield, Mass., were on brief, for defendant, appellant.

John C. Sikorski, with whom John H. Madden, Jr., and Robinson Donovan Madden & Barry, P.C., Springfield, Mass., were on brief, for plaintiff, appellee.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

An Oriental philosopher once wrote that the business of a faithful retainer comprises "discharging loyal service to his master ... and, with due consideration of his own position, ... devoting himself to duty above all." Yamaga Soko, The Way of the Samurai (1680). According to plaintiff-appellee Iver J. Freeman, he had been an allegiant myrmidon after this fashion, yet defendant-appellant Package Machinery Company (PMC) had repaid his steadfastness with the cruelest ingratitude: banishment. Freeman sued, claiming that his employer had fired him on the basis of age contrary to both federal and state law. The case was removed to federal district court.

After a longish trial, a jury found that PMC had violated the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (ADEA), and awarded damages. Plaintiff's companion state-law claim was tried to the court. The judge made an incremental award for emotional distress (an element of damages recoverable under the Massachusetts statute, but not under the ADEA) and eventually granted a motion for prejudgment interest. After some bickering as to the total amount of damages properly recoverable, the district court ordered a substantial remittitur. Plaintiff acceded. The court thereupon entered an amended judgment in Freeman's favor for $653,718.94 (comprising aggregate damages of $405,449 and prejudgment interest of $248,269.94). Defendant appealed.

A potpourri of issues simmer in the pot. Some are so unnourishing that we see no need to discuss them at all. We deal instead with what we perceive to be PMC's three chief contentions: (1) that the evidence preponderated against the liability finding, (2) that prejudgment interest was wrongly imposed, and (3) that the fees of certain expert witnesses were overgenerously assessed. Rather than positing the facts in the abstract, we review them in connection with the weight-of-the-evidence challenge.


Appellant's claim that the sheer weight of the evidence overpowered the jury's liability determination can best be examined in the context of its argument that its motion for a new trial, brought after verdict under Fed.R.Civ.P. 59(a), should have been granted unconditionally, that is, that the verdict for Freeman should have been set aside entirely instead of merely being trimmed as to amount.

A. Standard of Review.

We have recently rehearsed the principles which inform appellate oversight of new trial motions in civil cases:

In the federal system, a trial judge cannot displace a jury's verdict merely because he disagrees with it or would have found otherwise in a bench trial. Absent error of law ..., the judge's prerogative to set aside a verdict crystallizes only if "it is quite clear that the jury has reached a seriously erroneous result." Borras v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir.1978) (citation omitted). In our litany of cases, we have come to refer to this criterion as the "manifest miscarriage of justice" standard. E.g., Wagenmann v. Adams, 829 F.2d 196, 200-01 (1st Cir.1987); Insurance Co. of North America v. Musa, 785 F.2d 370, 375 (1st Cir.1986); Valm v. Hercules Fish Products, Inc., 701 F.2d 235, 237 (1st Cir.1983); Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 200 (1st Cir.1980).

Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir.1988). Put another way, the district court may order a new trial only if it is convinced that the jury's verdict is "against the clear weight of the evidence, or is based upon evidence which is false, or will result in a clear miscarriage of justice...." Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). The mere fact that a contrary verdict may have been equally--or even more easily--supportable furnishes no cognizable ground for granting a new trial. If the weight of the evidence is not grotesquely lopsided, it is irrelevant that the judge, were he sitting jury-waived, would likely have found the other way. And if the judge rejects a new trial motion, we review his application of this hard-to-achieve standard solely for abuse of discretion. See Milone, 847 F.2d at 37; Real v. Hogan, 828 F.2d 58, 61 (1st Cir.1987).

On this appeal, then, PMC's task is complicated exponentially; its assault on the finding must penetrate a pair of bucklers. In the first instance, deference is due to "the jury's constitutionally sanctioned role as finder of fact," Mayo v. Schooner Capital Corp., 825 F.2d 566, 570 (1st Cir.1987); and then, deference is due to the trial judge's "superior ability to monitor the conduct of the trial and assess the credibility of the witnesses...." Id. Mindful of this double shielding and the formidable challenge of persuasion which it yields, we evaluate the evidence to determine whether justice has miscarried.

B. Factual Predicate.

Some of the central facts in this case are essentially undisputed. Freeman went to work for Reed-Prentice (RP) in 1946. When PMC acquired the firm some eight years later, he stayed on. 1 Except for a five year hiatus (1958-63), plaintiff remained in appellant's employ until more than a quarter century had passed. During his tenure, he received sequential promotions which led, in 1972, to a vice-presidency. At the same time, he became general manager of the RP division. When discharged in the fall of 1980, Freeman was sixty years old. His successor, Lawrence Bauer, was forty-eight.

As we proceed deeper into the case, the remaining facts and the inferences to be drawn from them become more sententious. Plaintiff contended that he was performing his duties well, and that his ouster was a result of age discrimination. He adduced plethoric evidence of satisfactory work performance, including his string of promotions and bonuses, an average work week of over fifty hours, a litany of contributions to increased productivity, and an impressive collection of encomia within the industry. Freeman attempted to buttress this evidence by suggesting that his was not an isolated case; he argued that, for many years, PMC had practiced age discrimination under the stewardship of its president, Roger Putnam, Jr. To support this theory, he offered the testimony of a degree-draped statistician, Dr. George Cobb. After examining certain data, Cobb testified that the material revealed a "pattern ... totally consistent with a practice of age discrimination." According to the records on which the witness relied, in the roughly two decades between 1965 and the time of trial, eighteen persons at vice-presidential (or higher) echelons had ceased to be employed by PMC. On average, these executives vanished at 52.7 years of age; only three reached age sixty-two while so employed. Two-thirds of the group were replaced by substantially younger people (forty-five years of age, on average). Cobb found these statistics telling, testifying that he had "never encountered a pattern [of discrimination] as striking as this."

PMC hotly contested these charges. It asserted that appellee's age was irrelevant: the real reason for firing Freeman was the collapse of his working relationship with his immediate superior, Burke Weisend. According to appellant, Weisand--not Putnam--was the key decisionmaker in this case. PMC adduced substantial evidence indicating that appellee had become stubbornly unwilling to comply with Weisend's directions, especially in two areas. One aspect of the supposed conflict was Freeman's failure to develop a "five-year plan" for the RP division. From 1978 forward, appellant avouched, Freeman was often urged to prepare such a plan but never did so. Appellee sought to parry this thrust by showing that Weisand, at divers times, attached relatively low priority to the project.

The other battleground concerned SPI, a trade organization which derived its membership from within various segments of the plastics industry. PMC was a member. Freeman, with his company's full knowledge, had been extensively involved in SPI activities for some time. In 1976, he became the organization's vice-chairman; two years later, he succeeded to the chair. Appellant contended that these activities caused strife in the executive suite, that plaintiff devoted too much time to SPI, and that SPI involvement interfered with plaintiff's effective performance of his corporate duties. Disagreeing, Freeman presented evidence that (1) he kept his SPI activities within appropriate parameters, (2) Putnam encouraged him to accept the SPI vice-chairmanship, and (3) many other senior PMC employees, including Weisend and Putnam, spent comparable amounts of time laboring in the variegated vineyards of similar trade associations. In a nutshell, appellee saw his SPI linkage as a net plus for PMC.

C. Applicable Law.

With this thumbnail sketch of the evidence in place, we advert briefly to the substantive legal principles which control the case. Under the ADEA, Freeman bore the burden of proving that his years were the determinative factor in his discharge, that is, that he would not have been fired but for his age. See Menard v. First Security Services Corp., 848 F.2d 281, 285 (1st Cir.1988); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir....

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