A Suffolk County jury recently awarded a Haitian–American nurse an unprecedented $28.2 million in total damages on her claim of retaliation against Brigham & Women’s Hospital, her former employer. At the same time, the jury rejected the nurse’s claim of race discrimination.
This verdict serves to emphasize what most employment litigators know from experience: juries appear far more willing to find an employer liable on a retaliation claim than on a discrimination claim, and they tend to award higher damages on retaliation claims.
The unprecedented amount of this verdict, however, cannot be explained solely by the fact that it was a retaliation claim. It is unclear whether this verdict is the result of a “runaway” jury, the first indicator that recent social movements will have a longer-term impact on normally parsimonious Massachusetts jurors, or the result of some other factor. While this verdict is a data point employers should watch carefully, it does not yet mark a substantive change in how discrimination and retaliation cases should be assessed.
The verdict consisted of $450,000 in economic damages, $2.75 million in emotional distress damages, and $25 million in punitive damages. When compared with prior verdicts, the economic damages awarded are not remarkable. However the emotional distress damages are high and the punitive damages are unprecedented.
From the face of the pleadings, the facts of this case alone do not explain the amount of the verdict. Indeed, this case appears to have a fact pattern relatively common to retaliation cases. Gessy Toussaint had worked as a nurse at Brigham for more than 11 years when a manager allegedly discriminated against another black employee. Toussaint claimed that she supported her colleague’s claim of discrimination and experienced retaliation as a result, including incidents of patient neglect by Toussaint allegedly fabricated by management.
While retaliation claims carry a higher risk of both liability and punitive damages, neither the facts nor these factors appear to explain the $25 million punitive damages award to Toussaint. A number of less-tangible factors may provide some explanation for the amount of the verdict. A “runaway” jury could have returned a verdict that is vulnerable to a remittitur, or court-ordered reduction. The jury may have viewed Toussaint as particularly sympathetic or defense witnesses as particularly unlikeable. The current pervasiveness of societal movements demanding an end to discrimination (e.g., #BlackLivesMatter and #MeToo) cannot be ignored, and a jury may use punitive damages to send a message.
While the verdict has been touted as a new standard by plaintiffs’ counsel in demand letters and settlement negotiations, the reality is that the amount of this verdict may not survive a motion for remittitur. Even if the verdict stands, it is in stark contrast to the typical Massachusetts jury verdict.