# Floro v. Litzsinger

> District Court, D. Oregon · August 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10391131

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10391131

## How later opinions describe it (automated extraction)

- explaining that a court cannot order reduced damages without providing plaintiff with the option for a new trial on the issue of damages
- holding plaintiff's testimony was sufficient to support claim for emotional distress damages
- finding jury’s award of emotional distress damages of $223,155 in discrimination case was neither “grossly excessive or monstrous” where plaintiff testified he suffered humiliation and harm; upholding trial court’s denial of motion for new
- explaining that Rule 59 applies to motions for a new trial and remittitur

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PENDLETON DIVISION

SKYLER JAMES FLORO, Case No. 2:17-cv-00993-AC
Plaintiff, ORDER ON MOTION
v. FOR NEW TRIAL
AMANDA LITZSINGER, Corrections
Officer, and J. DUCHEK, Lieutenant
(EOCD,
Defendants.

ACOSTA, U.S. Magistrate Judge:
Plaintiff Skyler James Floro brought this suit against Defendants Amanda Litzsinger and
James Duchek, alleging violations of his First and Eighth Amendment rights while he was in
custody at Eastern Oregon Correctional Institution (““EOCI”). Plaintiff's claims were tried to a
jury. On April 30, 2019, the jury rendered a verdict in favor of Plaintiff and against Defendant
Amanda Litzsinger,! awarding $150,000 in non-economic damages and $200,000 in punitive
damages, for a total sum of $350,000. Presently before the court is Defendant Litzsinger’s Motion

' Plaintiff did not prevail on his First Amendment claim against Jason Duchek.
Page 1 -ORDER ON MOTION FOR NEW TRIAL

for New Trial or Remittitur pursuant to Federal Rule of Civil Procedure 59. (ECF No. 124.) In
the motion, Litzsinger moves for a new trial or a reduction of jury’s damage award to $210,000
total. For the following reasons, Litzsinger’s motion is denied.
Background
Plaintiff is an inmate within the custody of the Oregon Department of Corrections, and in
January 2017, he was housed at EOCI. Litzsinger is a Corrections Officer at EOCI. At trial,
Plaintiff asserted that he was fearful of his fellow former gang members, and on January 9, 2017,
he sought protective custody by refusing to “cell in”; that is, he refused to voluntarily enter his
assigned cell. Plaintiff then was taken to the Disciplinary Segregation Unit (“DSU”). Litzsinger
escorted Plaintiff to his punitive cell within the DSU. While being escorted by Litzsinger, several
other DSU inmates asked Plaintiff why he was being placed in DSU, to which Litzsinger yelled
out that he had “PC’d up.” (Decl. Carl Post Resp. Mot. New Trial, Ex. 1 at 80:2-13, attaching
Trial Tr. Apr. 29, 2019 “Tr. Vol. I’), ECF No. 128-1.) Among inmates, someone who has “PC’d
up,” “dropped out,” or sought protective custody, is someone who cooperates with the police or is
a snitch. (Tr. Vol. I 80:18-21.) Additionally, Plaintiffs cellmate told him that Litzsinger had
informed the cellmate that Plaintiff had PC’d up and was coming back to DSU. (Tr. Vol. I 80:14-
17.) Approximately seven days later, Plaintiff was released from DSU. (Tr. Vol. I 81:10-11,
118:24-119:1.) After Plaintiff left DSU, he was assaulted because he requested protective
custody and was labeled a snitch as a result of Litzsinger’s statements. (Tr. Vol. I 81:9-16,
101:10-24; 109:4-13; 119:2-4.)
Litzsinger confirmed that if an inmate requests protective custody, such information should
be treated as confidential for the safety of inmates and corrections officers, and she denied ever

Page 2 —- ORDER ON MOTION FOR NEW TRIAL

calling an inmate a “PC case” or “dropout” in front of other inmates. (Tr. Vol. I 125:17-24.)
Litzsinger testified that it was her practice not to talk to inmates while escorting inmates to cells
in DSU. (Tr. Vol. I 132:23-133:6.) At trial, several other inmates testified that they had heard
Litzsinger refer to inmates as PC cases or dropouts. Mr. Sackett testified that Litzsinger had
called other inmates PC cases or dropouts on at least two other occasions. (Tr. Vol. I 147:11-
149:6.) Mr. McNeil confirmed that Litzsinger had disclosed other inmates’ PC status to other
inmates. (Tr. Vol. I 162:20-23.) Mr. Benz testified that he learned that Plaintiff was a PC case
from another inmate, and that Plaintiff's status was common knowledge in the unit where he was
housed. (Tr. Vol. I 141:8-23.) McNeil also testified that while he was in DSU, he heard other
inmates talking about Plaintiff being a dropout. (Tr. Vol. I 164:12-17.)
On July 13, 2017, Plaintiff was slashed by another inmate with a razor and punched while
sleeping in his dormitory cell. (Tr. Vol. 1119:8-10.) Plaintiff described that the inmate hit him,
dragged him off the bed, slashed his eyebrow with a razor blade, then punched him again. (Tr.
Vol. I 86:19-22.) Plaintiff testified that he went unconscious and awoke to find the offending
inmate sitting on his bed. (Tr. Vol. 1 86:22-25.) Plaintiff feared for his life, and believes he was
attacked because he was labeled a snitch. (Tr. Vol. I 87:2-4.)
Plaintiff testified that he has suffered emotionally as a result of Litzsinger’s statements and
being labeled a snitch, and he attempted suicide because he was so depressed. (Tr. Vol. I 90:9-
23, 117:3-14.) Plaintiff stated that he continues to fear for his safety. Mr. Benz testified that
Plaintiff was anxious and afraid; Mr. Sackett testified that he took Plaintiff under his wing because
he is “a little guy,” weighing only 120 pounds. (Tr. Vol. I, 141:24-142:2-8, 159:14-22.)

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A jury trial commenced April 29, 2019. On April 30, 2019, the jury found that Litzsinger
violated his Eighth Amendment rights and that he suffered noneconomic damages in the amount
of $150,000, and that Plaintiff was entitled to punitive damages in the amount of $200,000.
Legal Standards
A new trial may be granted after 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). The
authority to grant a new trial under Rule 59 “is confided almost entirely to the exercise of discretion
on the part of the trial court.” AMied Chem. Corp. y. Daiflon, Inc., 449 U.S. 33, 36 (1980),
Historically, the court has granted motions for new trial because, for example, the verdict was
against the weight of the evidence, the damages are excessive, and the trial was unfair to the
moving party. Molski vy. MJ. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007); VanValkenburg v.
Oregon Dept. of Corr., Case No. 3:14-cv-00916-MO, 2017 WL 532950, at *3 (D. Or. Feb. 8,
2017). The Ninth Circuit has held that a new trial may be granted “’ only if the verdict is contrary
to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a
miscarriage of justice.’” Molski, 481 F.3d at 729 (quoting Passantino v. Johnson & Johnson
Consumer Prods., 212 F.3d 493, 510 n.15 (9th Cir.2000)).
When considering a Rule 59 motion, the court has “the duty[] to weigh the evidence as [the
court] saw it, and to set aside the verdict of the jury, even though supported by substantial evidence,
where, in [the court’s] conscientious opinion, the verdict is contrary to the clear weight of the
evidence.” Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir.1990) (internal quotation
omitted); VanValkenburg, 2017 WL 532950, at *3. Under federal law, a court may conditionally
grant a defendant’s motion for a new trial unless the plaintiff agrees to a reduced damages award,

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also known as a remittitur. VanValkenburg, 2017 WL 532950, at *5; Hetzel v. Prince William
Va., 523 U.S. 208, 211 (1998); see also Morgan v. Woessner, 997 F.2d 1244, 1258 (9th Cir.
1993) (explaining that a court cannot order reduced damages without providing plaintiff with the
option for a new trial on the issue of damages).
In general, a “motion for remittitur of a jury verdict is subject to the same standard as a
motion for new trial under FRCP 59.” Morris v. Walgreen Oshkosh, Inc., Case No. 3:14-cv-
01718-ST, 2016 WL 1704320, at *3 (D. Or. Apr. 18, 2016); see also Browning-Ferris Indus. of
Inc. y. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989) (explaining that Rule 59 applies to
motions for a new trial and remittitur). In the Ninth Circuit, when the jury’s verdict is challenged
as excessive, the court affords “‘substantial deference to a jury’s finding of the appropriate amount
of damages.’” Harper y. City of Los Angeles, 533 F.3d 1010, 1028 (9th Cir. 2008) (quoting □□□
Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996)). The
court will uphold the jury’s verdict unless “the amount is grossly excessive or monstrous, clearly
not supported by the evidence, or based only on speculation or guesswork.” Del Monte, 95 F.3d
at 1435.
Discussion
Litzsinger argues that remittitur is appropriate because the jury’s verdict was excessive.
Litzsinger suggests that $86,000 in noneconomic damages and $124,000 in punitive damages is
appropriate. Litzsinger argues that Plaintiff did not present any evidence at trial to support a
noneconomic damages award in the amount of $150,000. Litzsinger highlights that Plaintiff
sought just $64,000 in noneconomic damages in his First Amended Complaint filed just days
before trial. (First Am. Compl., ECF No. 106.)

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In response, Plaintiff contends that the jury was properly instructed on damages and what
factors to consider in determining the amount of noneconomic and punitive damages. Plaintiff
argues that the jury award is supported by the evidence and is neither speculative nor excessive.
Plaintiff is correct.
Litzsinger did not object to the jury instructions at trial and does not challenge them in the
current motion. (Tr. Vol. I 194:22-195:17); see also Harper, 533 F3d at 1021 (“If sufficient
evidence is presented to a jury on a particular issue and if the jury instructions on the issue stated
the law correctly, the court must sustain the jury’s verdict”). The jury is presumed to have
followed the instructions provided to them. Plaintiffs testimony alone is enough to substantiate
the jury’s award of noneconomic damages. See Zhang v. Am. Gem Seafoods, Inc. , 339 F.3d 1020,
1040 (9th Cir. 2003) (holding plaintiff's testimony was sufficient to support claim for emotional
distress damages).
At trial, Plaintiff testified that he feared for his life, that he was anxious, and that he was
assaulted in July 2017 as a result of being labeled a PC case by Litzsinger. Plaintiff described the
emotional toll that Litzsinger’s statements to other inmates had caused him, casting him as a snitch
and causing him to sink into depression and ultimately attempt suicide. The jury obviously was
moved by his testimony.
The jury also was able to evaluate the credibility of the witnesses. Consistent with its Rule
59 duty to weigh the evidence, the court also reviewed the exhibits and carefully observed and
listened to the witnesses as they testified during trial. The jury’s verdict falls within a range that
is consistent with the evidence presented at trial.

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And, as Plaintiff correctly highlights, Litzsinger did not object to the jury instructions
concerning how noneconomic damages were to be calculated, and the jury is presumed to have
followed those instructions. Based on the substantial evidence presented at trial, the court cannot
conclude that the jury’s award of noneconomic damages was “grossly excessive or monstrous” or
that it was based on “speculation or guesswork.” See Zhang, 339 F.3d at 1041 (finding jury’s award
of emotional distress damages of $223,155 in discrimination case was neither “grossly excessive
or monstrous” where plaintiff testified he suffered humiliation and harm; upholding trial court’s
denial of motion for new),
Litzsinger does not advance a separate argument concerning punitive damages in the
motion for new trial or remittitur, but asserts that the punitive damages award is excessive,
suggesting instead a sum of $124,000. Substantial evidence supports the jury’s verdict. The jury
heard evidence based upon which it could find malice or reckless indifference to his federally
protected rights. Litzsigner testified that she knew an inmate’s protective status should be kept
confidential, yet Plaintiff and other witnesses testified that she disclosed Plaintiffs status, as well
as that of other inmates. Based on this evidence, the jury could reasonably find that Litzsinger’s
conduct was malicious, oppressive or in reckless disregard of Plaintiff's rights, and that $200,000
was an appropriate amount to punish her, and to deter her and other from engaging in similar acts
in the future. Accordingly, substantial evidence supports the jury’s verdict, the award of
noneconomic and punitive damages is not grossly excessive or monstrous, and the jury did not
improperly speculate when reaching the damages award.

Page 7 -ORDER ON MOTION FOR NEW TRIAL

Conclusion
Based on the foregoing, Plaintiff's Motion for New Trial or Remittitur (ECF No. 124) is
DENIED.

IT IS SO ORDERED.
HL -
DATED this 7 day of August, 2019. i/ C)

fOHN V. ACOSTA
Uni tel States Magistrate Judge

Page 8 -ORDER ON MOTION FOR NEW TRIAL

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391131. Public record. Not legal advice.