Howald v. Herrington
| Decision Date | 08 February 2023 |
| Docket Number | Civil 1:21-cv-00059-MR-WCM |
| Parties | RACHEL HOWALD, Plaintiff, v. PAMELA KAYE HERRINGTON, Defendant. |
| Court | U.S. District Court — Western District of North Carolina |
THIS MATTER is before the Court on the Plaintiff's Supplemental Brief on Damages [Doc. 60] and the Defendant's Supplemental Brief on Damages [Doc. 63].
The Plaintiff, Rachel Howald (“Howald”), brought this action in North Carolina state court on November 15, 2020 against Defendants Ben Lippen School (“Ben Lippen”) and Pamela Kaye Herrington (“Herrington”). [Doc. 11]. The Complaint sets out six claims for relief. In Counts One, Four, and Six, Howald set out claims against Herrington for assault and battery false imprisonment, and intentional infliction of emotional distress (“IIED”). [Id.]. In Counts Two, Three, and Five, Howald set out claims against Ben Lippen for negligent retention and supervision of Herrington, constructive fraud, and negligent inflection of emotional distress (“NIED”). [Id.].
On February 26, 2021, Ben Lippen filed a notice of removal to the Western District of North Carolina. [Doc. 1]. On March 31, 2021, Ben Lippen filed its answer to the Complaint, and on June 21, 2021, Herrington filed her answer. [Doc. 16, Doc. 29]. On June 29, 2022, the parties and their attorneys participated in a mediated settlement conference which resulted in a settlement of all claims against Ben Lippen. [Doc. 48]. On September 9, 2022, Howald filed a Motion for Summary Judgment against Herrington. [Doc. 49]. Herrington did not file a response to this motion. On October 31, 2022, the Court granted summary judgment on Howald's claims for assault, battery, false imprisonment, and intentional infliction of emotional distress. [Doc. 57]. The Court also held that punitive damages are appropriate in this case. [Id.]. The Court further ordered the parties to provide supplemental briefing on the issue of damages. [Id.].
On November 14, 2022, Howald filed a supplemental brief on damages and waived her right to a jury determination of damages. [Doc. 60]. On November 28, 2022, Herrington filed a supplemental brief on damages and waived her right to a jury determination of damages. [Doc. 63]. The Court granted Howald leave to file a reply to Herrington's supplemental brief, and Howald filed a reply on December 9, 2022. Accordingly, the matter has been fully briefed and, as both parties have stipulated that the issue of damages can be disposed of on the pleadings, the matter is ripe for disposition.
A detailed recitation of the underlying facts in this case is included in the Court's October 31, 2022, order granting summary judgment. [Doc. 57 at 3-8]. A brief recitation of the underlying facts follows.
Howald attended high school at Ben Lippen School. [Id. at 4]. While Howald was a student, Herrington was a coach and “Dorm Parent,” responsible for enforcing the school's policies. [Id.]. During Howald's junior year, Herrington engaged in a course of routine sexual abuse of Howald. [Id. at 5]. This abuse involved Herrington groping Howald's breasts under her shirt and grinding on top of Howald in a way that was very painful for Howald. [Id.]. On one occasion, Herrington tried to put her fingers in Howald's underwear. [Id. at 6]. This abuse occurred in the school's dormitories, in hotel rooms while on overnight trips to away games, and even in Howald's own home when her parents hosted a school movie night. [Id.]. This abuse only stopped when the school moved to another state and Herrington moved away. [Id. at 7].
This abuse caused Howald lifelong emotional trauma. Howald has spent thousands on therapy and has tried a range of therapy techniques and medication. ]. In the affidavit she submitted to the Court, Howald stated that she has experienced suicidal thoughts in the years since Herrington's abuse and stockpiled pills as part of a suicide plan. [Doc. 60-1 at ¶ 15]. She stated that she cannot form close relationships with others because she is not capable of trusting due to Herrington's abuse, and she recounted an inability to feel safe when sleeping, especially in hotel rooms. [Id. at ¶¶ 21-22].
Howald has been diagnosed with posttraumatic stress disorder, generalized anxiety disorder, depressive disorder, and binge-eating disorder. [Doc. 49-10 at 23-27]. A retained expert in this case determined that Howald “needs ongoing psychological treatment, most likely for the rest of her life.” [Id. at 28].
The Court previously determined that an award of both compensatory and punitive damages is warranted in this case. [Doc. 57]. Howald argues that an award of $23,177,500.00 is appropriate in this case. [Doc. 60 at 17].
Howald argues that an additional award of $69,532,500.00, three times[1] her proposed compensatory damages award, is an appropriate punitive damages award. [Id. at 22]. Herrington argues that an award of $100,000 in compensatory damages and $100,000 in punitive damages is appropriate. [Doc. 63 at 10].
Compensatory damages accrue from “some actual loss, hurt or harm resulting from the illegal invasion of a legal right.” Iadanza v. Harper, 169 N.C.App. 776, 779, 611 S.E.2d 217, 221 (2005) (internal quotations omitted) (quoting Hawkins v. Hawkins, 101 N.C.App. 529, 532, 400 S.E.2d 472, 47475 (1991)). “Compensatory damages include both general and special damages.” Id. General damages include mental anguish and physical pain and suffering that “might accrue to any person similarly injured,” while special damages “are usually synonymous with pecuniary loss,” including medical expenses. Id. (internal quotations omitted) (first quoting Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C.App. 650, 671, 464 S.E.2d 47, 62 (1995); and then quoting 22 Am. Jur. 2d Damages § 42 (2003)).
Here, Howald has provided both evidence of special damages-the expenses she incurred from her therapy-and general damages-the emotional trauma she has suffered since Herrington's abuse. She argues that, rather than using her therapy expenses incurred to date as a starting point for compensatory damages that the Court should focus on the amount she would pay per day to not live with the pain and suffering that resulted from the abuse, a figure she approximates at $1,000 per day. [Doc. 60 at 1819]. However, North Carolina courts have rejected this method of determining damages, noting that:
The question in any given case is not what sum of money would be sufficient to induce a person to undergo voluntarily the pain and suffering for which recovery is sought or what it would cost to hire someone to undergo such suffering, but what, under all the circumstances, should be allowed the plaintiff in addition to the other items of damages to which he is entitled, in reasonable consideration of the suffering necessarily endured.
Fox-Kirk v. Hannon, 142 N.C.App. 267, 279, 542 S.E.2d 346, 355 (2001) (quoting Dunlap v. Lee, 257 N.C. 447, 452, 126 S.E.2d 62, 66-67 (1962)).
Herrington, on the other hand, argues that the appropriate starting point for a damage award in this case is the amount of damages awarded in similar cases. [Doc. 63 at 6-8]. Specifically, Herrington points to the damages awarded by the court in Etters v. Shanahan, No. 5:09-CT-3187-D, 2013 WL 787344 (E.D. N.C. Feb. 6, 2013), and the individual damages awards in the mass tort bankruptcy settlement in In re Boy Scouts of America, 642 B.R. 504 (Bankr. D. Del. 2022).
In Etters, the plaintiff was an inmate who was raped vaginally and anally by a prison guard and forced to have oral sex with the guard. Etters, 2013 WL 787344 at *2. The guard assaulted Etters on “at least four occasions.” Id. at *6. The court reached an award of $100,000 in compensatory damages in that case based on an analysis of amounts awarded in similar cases of prison guards assaulting inmates. Id. at *5-6. However, the court declined to include in that sum an award to compensate the plaintiff for mental health treatment because she was incarcerated at the time the award was determined and “did not present evidence on the extent to which she will need treatment at [the time she is released] or its cost”; accordingly, the court concluded that “[a]ny award for such treatment would therefore be speculative.” Id. at *6.
In re Boy Scouts of America approved a proposed trust agreement for more than eighty thousand claimants. In re Boy Scouts of Am., 642 B.R. at 518. To determine the award amounts for each individual claimant, the trust agreement assigned each claimant to one of six tiers based on the conduct at issue in their claim, with tier one being the most serious conduct. Id. at 543. Each of these tiers was assigned a base value and a maximum value for claims that fell within each tier. [Id.]. Herrington argues that the conduct in this case falls “squarely into Tier 5,” a tier for claims involving “Touching of the Sexual or Other Intimate Parts (clothed), regardless of who is touching whom and not including masturbation.” [Doc. 63 at 7]. Tier five carried a base claim value of $75,000 and a maximum value of $337,500. In re Boy Scouts of Am., 642 B.R. at 543.
Neither of these cases provides a perfect analogue to the present case. While Etters involved penetration, which this case did not, it also did not involve a plaintiff who was a minor at the time the abuse occurred like the present case. Notably, the damage award in that case also did not involve any sum for mental health treatment because the plaintiff was unable to provide any evidence of the potential need for or cost of that treatment after her release from prison....
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