• July 26, 2013
Bill Griffith's "Zippy the Pinhead"

Bill Griffith’s “Zippy the Pinhead”

Update (July 26, 2013):  The case, described here and below, somehow reminds me of the absurdist query, “Are we having FUN yet?” from Zippy The Pinhead, a bizarre cartoon from by-gone days .  Any civil lawsuit that goes to trial has unanswered factual questions. This is, of course, what trials are for.  But normally the factual issues to be tried are factually subtle distinctions (as in “is it reasonable to manufacture millions of custom items without a purchase order based on a representative of the buyer saying ‘we are committed‘”? Or at the time of manufacture was there an alternative design that would have and should have prevented the farming accident?).  Imagine trials where the issues to be decided were “Did the defendant’s ship sink or not?” “Did the plaintiff make one million gloves or not?” or some other factual ambiguity that seems, on the face of it, difficult to imagine.  Trials like these might have a surreal feel to them.

In Romano v. ING Reliastar Life Insurance, the issue for trial, it seems, is, “Was there a work place assault or not?”  To me that is a strange thing to go to trial but it might have to happen.

(I like to steer clear of family law and employment, preferring the relatively more grounded, dry, unemotional, “empirical,” or “reality-based” realm of business/commercial litigation.  But that’s just me.)

Original Post (December 6, 2012):  One can place the universe of U.S. civil litigation on a continuum of emotional intensity.  Toward one end of the spectrum you will find “family law” in which nearly every case has at least one heart-rending component and, more often, each case is a chaotic cyclone of sadness and pain.

At the other end of the emotional spectrum of civil litigation is “business litigation” and, maybe even more attenuated from human emotion, “patent litigation.”  While there are many billions of dollars riding on patent litigation every day, it is infrequent, for example, that a lawyer experiences “waterworks” in a client meeting or in a deposition (a term I heard a lawyer once cynically use to refer to making a deponent cry).

Nestled between the two extremes is employment litigation which might concern dull benefits calculations, disputes about “vesting,” or the proper scope of a claimed “trade secret,” or it might concern someone whacking someone in the face with a notebook (or someone lying about someone whacking someone in the face with a notebook).

The case of Romano v. Reliastar highlights the “human side” of employment litigation.

A recent decision in the case is also interesting from the litigator’s “procedure” point of view.

Plaintiff Katherine Romano brought a motion to amend her complaint to add a claim for punitive damages in connection with her employment claim against ING Reliastar Life Insurance.  She alleges that her supervisor whacked her in the head with a notebook (see Complaint, Para. 25).

The tricky thing from a procedural point of view is (1) plaintiffs are not allowed in Minnesota to make a claim for punitive damages in a complaint; they must bring a motion for permission to amend their complaint to add such a claim; and (2) when they do so, their evidentiary burden is both slight and substantial at the same time because the court can only consider plaintiff’s evidence, not defendant’s rebuttal evidence, but, on the other hand, the evidence must be sufficient to constitute “prima facie” evidence that the plaintiff will meet the burden at trial of “clear and convincing evidence,” the evidentiary standard for punitive damages.

In the Romano case, this somewhat light but also somewhat substantial legal burden was particularly hard to apply because Plaintiff’s claim of intentional battery is obviously serious but the record in the case suggested the strong possibility that Ms. Romano may have fabricated the incident.

The law provides that U.S. Mag. Judge Jeffrey J. Keyes (D. Minn.) would only consider Plaintiff’s evidence, however, and not Defendants’ countervailing evidence.

[T]he issue before the Court is whether Romano made a prima facie showing of clear and convincing evidence that Defendant knew it was unlawful to retaliate against Romano for reporting an assault, and in the face of that knowledge, decided to fire her anyway because she reported the assault….[Romano] contends that the [Defendant ING Reliastar’s] investigation [of Romano’s report of assault by her ING Reliastar supervisor] was so substandard that Defendant[ ING Reliastar’s] retaliatory intent is clear and the entire investigation was meant only to provide cover for that retaliatory motive [(that is, to fire her because she reported being assaulted)].

Here, Romano’s prima facie evidence fails to clearly and convincingly suggest such a deliberate disregard for Romano’s right not to be retaliated against for reporting a workplace crime. Rather than the retaliatory intent, Romano asks the Court to infer, Romano’s prima facie unrebutted evidence could just as easily suggest that Defendant’s human resources personnel are mediocre investigators or even that [they] legitimately considered and weighed the evidence they believed was most important and ultimately concluded that they could not believe Romano’s story.

Seems to me that Judge Keyes got this one right.

Leave a Reply

Your email address will not be published.