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McNamara v. Picken

United States District Court, District Circuit

August 30, 2013

SCOTT A. McNAMARA, M.D., Plaintiff/Counter-Defendant,
CATHERINE A. PICKEN, M.D., et al., Defendants/Counter-Plaintiffs.


ELLEN SEGAL HUVELLE United States District Judge

Before the Court are two post-trial motions: (1) plaintiff/counter-defendant’s motion for a new trial as to the fraudulent misrepresentation and promissory fraud claims (Aug. 15, 2013 [ECF No. 163] (“New Trial Mot.”)); and (2) plaintiff/counter-defendant’s motion for a new trial or, in the alternative, for remittitur. (Aug. 15, 2013 [ECF No. 164] (“Remittitur Mot.”).)


Plaintiff Scott A. McNamara, M.D., filed suit against Catherine A. Picken, M.D., and the Washington ENT Group PLLC (“WENT”) for an accounting, conversion, breach of partnership agreement, and breach of employment contract. (See Amended Complaint, Jan. 29, 2013 [ECF No. 62-1].) Defendants counterclaimed, alleging fraud, breach of fiduciary duty, promissory fraud, and aiding and abetting a breach of fiduciary duty. (See Answer, Affirmative Defenses, and Counterclaims to Amended Complaint, Mar. 29, 2013 [ECF No. 74] (“Answer”).)[1]Following a five-day jury trial, on July 19, 2013, the jury found against Dr. McNamara on all of his claims and for Dr. Picken/WENT on all of their counterclaims. (See Verdict Form [ECF No. 145].) The jury awarded $215, 656.72 in compensatory damages based on the two counterclaims for fraud, $52, 556.97 in compensatory damages based on the counterclaim for aiding and abetting a breach of fiduciary duty, and $250, 000 in punitive damages. (See id.)[2] With the consent of both parties, the Court inquired of the jury as to what portion of its punitive damages award was based on Dr. Picken’s attorney’s fees. (July 19, 2013 Transcript [ECF No. 157] (“July 19 Tr.”) at 27-28.) The jury foreperson responded that $211, 000 of the punitive damages award was based on attorney’s fees incurred through July 2013, and the remaining $39, 000 was “another figure that [they] thought was just.” (Id. at 28-29.)

Dr. McNamara has now filed two motions for post-trial relief, one alleging that there was insufficient evidence to support Dr. Picken/WENT’s two claims of fraud, and the other alleging that the punitive damages award was excessive. Dr. Picken opposes both motions. (See Opposition to Motion for Partial New Trial, Aug. 23, 2013 [ECF No. 166] (“New Trial Opp’n”); Opposition to Motion for New Trial or Remittitur, Aug. 23, 2013 [ECF No. 167] (“Remittitur Opp’n”).)


Federal Rule of Civil Procedure 59(a) provides that the Court may grant a new trial on all or some of the issues raised in a jury trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). One such reason is “if the verdict appears to . . . be against the weight of the evidence.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996) (citation omitted). This discretion also includes “overturning verdicts for excessiveness and ordering a new trial . . . conditioned on the verdict winner’s refusal to agree to a reduction (remittitur).” Id.

The disposition of a motion for new trial is “entrusted to the sound discretion of the trial court.” Grogan v. Gen. Maint. Serv. Co., 763 F.2d 444, 447 (D.C. Cir. 1985) (citing Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)). However, “the court should be mindful of the jury’s special function in our legal system and hesitate to disturb its findings.” Wild v. Alster, 377 F.Supp.2d 186, 189 (D.D.C. 2005) (internal quotation marks omitted). “Generally, a new trial may only be granted when a manifest error of law or fact is presented.” In re Lorazepam & Clorazepate Antitrust Litig., 467 F.Supp.2d 78, 87 (D.D.C. 2006). Indeed, a Rule 59(a) motion should be granted only where “the court is convinced that the jury verdict was a ‘seriously erroneous result’ and where denial of the motion will result in a ‘clear miscarriage of justice.’” Bowie v. Maddox, 540 F.Supp.2d 204, 208 (D.D.C. 2008) (quoting Nyman v. Fed. Deposit Ins. Corp., 967 F.Supp. 1562, 1569 (D.D.C. 1997) (internal quotation marks omitted). “The jury verdict stands unless the evidence and all reasonable inferences that can be drawn therefrom are so one-sided that reasonable men and women could not disagree on the verdict.” Youssef v. F.B.I., 687 F.3d 397, 403 (D.C. Cir. 2012) (internal quotation marks and citation omitted). “The burden of showing that a new trial is warranted in accordance with the rigorous standard rests with the moving party.” Czekalski v. Sec’y of Transp., 577 F.Supp.2d 120, 122 (D.D.C. 2008).


Dr. McNamara does not challenge the jury’s verdict with respect to his aiding and abetting breach of fiduciary duty. However, he does claim that there was insufficient evidence to support the jury’s verdict on the fraud claims. (See New Trial Mot. at 1-2.)

At trial, Dr. McNamara did not file a motion for judgment as a matter of law at the close of counter-plaintiffs’ case, as he was permitted to do under Rule 50(a). See Fed. R. Civ. P. 50(a). Instead, he now files a Rule 59 motion in which he raises his concerns about the evidentiary support for the fraud claims for the first time. Dr. Picken argues that Dr. McNamara’s failure to raise this issue pre-judgment is fatal to his new trial motion. (See New Trial Opp’n at 4-5.) Although it may have been more prudent for him to have raised this issue earlier, “[t]he failure to seek a judgment as a matter of law at the close of all the evidence does not procedurally bar a motion for a new trial.” 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2531 (3d ed. West 2013); see also Pediatrix Screening, Inc. v. TeleChem Int’l, Inc., 602 F.3d 541, 546 (3d Cir. 2010) (“Unlike Rule 50, the text of Rule 59 does not require any pre-verdict motions.”); Manfred v. Superstation, Inc., 365 F. App’x 856, 857 (9th Cir. 2010) (“A litigant who files a Federal Rule of Civil Procedure 59 motion for new trial, however, is not required to file a Rule 50(a) motion first.”).[3]

Nevertheless, the Court does not agree with Dr. McNamara that the jury’s verdict was “against the weight of the evidence.” (New Trial Mot. at 1-2.) Just the opposite is true. With respect to the promissory fraud claim, Dr. McNamara argues that the jury’s verdict was not supported by the evidence primarily for two reasons: first, that there is no evidence in the record that Dr. McNamara ever represented his “intent to behave, ” and second, that his post-September 1, 2010 actions are insufficient to call into question his pre-September 1, 2010 intent. (See Id . at 13-15.) Neither of these arguments satisfies the exacting standard under Rule 59, especially given the deference owed to the jury’s verdict and its assessment of the credibility of the parties.

Dr. Picken’s promissory fraud counterclaim was premised on her assertion that Dr. McNamara had agreed to join WENT as an employee while he and Dr. Picken continued negotiations about how to merge their practices into a partnership. (See Answer ¶¶ 97-101; Jury Instructions, July 19, 2013 [ECF No. 147] No. 43.) Dr. McNamara argues that the record did not clearly establish “Dr. Picken’s expectation that Dr. McNamara ‘behave’ in a particular manner upon joining WENT” because Dr. Picken testified that there were no “‘specific rules articulated in writing as to what type of behavior was expected from Dr. McNamara.’” (New Trial Mot. at 13-14 (citing July 16, 2013 Transcript [ECF No. 154] (“July 16 Tr.”) at 194).) But no such evidence is necessary; the record plainly supported the jury’s finding that Dr. Picken believed— based on her conversations with Dr. McNamara—that Dr. McNamara would be joining WENT as an employee, subject to all of the usual fiduciary duties and behavioral expectations associated with an employment position. Thus, the only question is whether there was sufficient evidence upon which to conclude that he in fact lacked any such intent when he came to work there, and the record is replete with such evidence.

Dr. McNamara himself points to several examples, including his “failure to attend meetings” and his “not following-up on emails he received from [Dr. Picken].” (Id. at 14-15.) Additionally, the facts underlying Dr. Picken’s claims for breach of fiduciary duty and aiding and abetting Neil Garrin’s breach of fiduciary duty—which Dr. McNamara does not challenge— further support the idea that Dr. McNamara’s behavior was blatantly inconsistent with that of an employee. Moreover, the evidence of Dr. McNamara’s intent to deceive goes beyond his actual failure to behave as an employee: there was testimony that Dr. McNamara resisted WENT’s staff’s efforts to fill out his employee paperwork; Dr. Assad Khoury served ...

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