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LIBERATORE v. CVS NEW YORK

September 4, 2001

JAMES LIBERATORE, PLAINTIFF,
V.
CVS NEW YORK, INC., DEFENDANT.



The opinion of the court was delivered by: Roberts, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff James Liberatore sued CVS New York, Inc. ("CVS") alleging that it had wrongfully terminated him as a CVS store pharmacist because he had threatened to inform the Food and Drug Administration ("FDA") that his CVS store kept prescription drugs at improper temperatures in violation of certain controlled temperature requirements. After the trial in this case, the jury returned a verdict in plaintiffs favor for $1,312,426, consisting of $1.1 million for emotional distress damages and $212,426 for lost earnings.

Defendant CVS has moved for judgment as a matter of law, a new trial, or a remittitur to decrease the amount of plaintiffs emotional distress damage award. Because there was sufficient evidence, although just barely, for a reasonable jury to have found in plaintiffs favor, defendant's motion for judgment as a matter of law, or for a new trial, will be denied. However, because the jury's emotional distress damage award was excessive, defendant's motion for remittitur will be granted.

BACKGROUND

Plaintiff was employed by CVS in 1980 as a pharmacist and later served as pharmacy department manager at the Thomas Circle store in the District of Columbia until the time of his termination.*fn1 From 1991 through February 1993, CVS underwent renovations at the Thomas Circle store. During that time, Liberatore became increasingly concerned that the prescription medications in defendant's pharmacy were being stored in violation of controlled temperature requirements, possibly causing adulteration of the drugs. Liberatore raised his concerns verbally on several occasions with Nita Sood, the store pharmacy supervisor, with Jon Roberts, the pharmacy regional manager, and with Larry Merlo, the Area Vice President for CVS.

According to Liberatore, during one discussion with Merlo on July 29, 1993, Liberatore told Merlo that he (Liberatore) might bring the temperature problem to the attention of a neighbor who was a ranking official at the FDA, if the issue were not resolved. Merlo's demeanor changed. His face turned white and he walked out.

On July 29, 1993 — the same day that Liberatore claimed he made his whistleblowing threat — Merlo, Roberts, and Carlos Ortiz, the director of professional and government relations at CVS, decided to conduct a drug reclamation, whereby the store's drug stocks were returned to their respective manufacturers as defective. Although Liberatore normally would have directed such a reclamation, in this instance, Roberts and Merlo ordered Sood to direct the reclamation and not to tell Liberatore about it. Ortiz testified during his deposition that the reclamation was ordered to avoid a public relations concern.

In a separate incident, CVS initiated an investigation into Sood's claim that drugs had been missing from Liberatore's pharmacy for over a month. According to CVS store protocol, Ortiz was to be informed whenever such an investigation was initiated, and Ortiz's records first reported this particular investigation on the same day that Liberatore said he made the whistleblowing threat. In addition, CVS policy required audit records to be kept whenever pharmacy products were alleged to have been missing or stolen, but CVS produced no audit records. Instead, Sood produced a written theft form only after Liberatore allegedly made the whistleblowing threat. On August 2, 1993, CVS's Loss Prevention Department interviewed Liberatore as a suspect in the missing drugs investigation.

Meanwhile, between March and June, Sood warned Liberatore that he needed to get his expiring pharmacist's license renewed. He did not do so. After his license expired, he continued to practice pharmacy in D.C. for five months knowing he was unlicensed. On August 4, he told Sood he would bring his renewed license to work. The next day, though, he admitted to Sood that he had no current license and asked her to conceal that fact from Roberts.

CVS fired Liberatore on August 6. He later pled guilty to knowingly practicing pharmacy in D.C. without a license. He also resigned from a part-time pharmacist's job he held in Maryland where he had practiced for years without a valid license. Thereafter, Liberatore worked intermittently in a succession of lesser jobs in this area and in Arizona, lost his home, and endured periods of separation from his family. He was fired from one pharmacist position in Arizona for practicing without a valid license. He was fired from two more positions and demoted in a fourth for reasons including lying to conceal his conviction and a prior termination. Liberatore testified at trial that he had also concealed his conviction and termination history from his then-current employer.

Plaintiff argued to the jury that his treatment between July 29, 1993, when he made the whistleblowing threat, and August 4, 1993, before CVS management discovered his lapsed pharmacy license, shows that Merlo and Roberts were motivated by Liberatore's whistleblowing threat in their decision to terminate him. CVS denied that Liberatore made the threat. It contended that when management discovered that Liberatore had failed to renew his pharmacy license, Liberatore was terminated for knowingly practicing pharmacy without a renewed license and misrepresenting his status to CVS management.

DISCUSSION

I. Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial

CVS has filed a motion for judgment as a matter of law, or, in the alternative, for a new trial. Pursuant to Fed.R.Civ.P. 50(b), this Court may direct entry of judgment as a matter of law if there is no legally sufficient evidentiary basis for a reasonable jury to find for the plaintiff. When deciding a motion for judgment as a matter of law, a court "should review all of the evidence in the record." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Id. "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Id. at 151, 120 S.Ct. 2097. The court "should give credence to the ...


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