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Clehm v. Bae Systems Ordinance Systems, Inc.

United States District Court, W.D. Virginia, Roanoke Division

December 14, 2018

CARLA A. CLEHM Plaintiff,



         This matter is before the court on incarcerated defendant Joshua Linkous' pro se post-trial motion for a new trial or, in the alternative, relief from judgment, pursuant to Rule 59 and Rule 60 of die Federal Rules of Civil Procedure, respectively. ECF Nos. 224-227. This case arises from multiple instances of sexual assault and battery perpetrated by defendant Joshua Linkous ("Linkous") against plaintiff Carla Clehm ("Clehm") while both were employed by BAE Systems, Inc. at the Radford Army Ammunition Plant in Radford, Virginia. Linkous' plea of guilty on June 30, 2015, and concomitant conviction for abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1), estopped him from contesting liability as to the state assault and battery claim alleged in Count II of the Clehm's Complaint and Second Amended Complaint. See 18 U.S.C. § 3664(1). The civil trial on Count II, conducted on August 23, 2018, was therefore limited to the question of damages. The jury returned a verdict in favor of Clehm in the amount of $500, 000 in compensatory damages and $250, 000 in punitive damages. Linkous contends, among other things, that the verdict is excessive and requests the court to order a new trial or, in the alternative, grant him relief from judgment. Linkous recites, albeit in a cursory and conclusory manner, a litany of grievances and exactly the same grounds in support of both motions. Clehm argues that Linkous' motions are entirely without merit and must be denied. The parties have briefed the issue making this matter ripe for the court's consideration. Upon a thorough review of the record and for the reasons set forth herein, Linkous' motions are DENIED.


         In her action against defendant Joshua Linkous, plaintiff Carla Clehm alleged that while working at the Radford Army Ammunition Plant ("Arsenal"), she was sexually assaulted and battered on two occasions by Linkous. ECF No. 59, 3-4. From early 2014 to 2015, Clehm worked as a "helper" in the Tub House, a facility located within the Nitrocellulose Area of the Arsenal. Id. at 6. Linkous worked within this same area, but as a Nitrocellulose Chief Operator ("NCCO"), known colloquially as a "tub house chief." Id. at 4. Clehm was sexually assaulted by Linkous at work on two occasions, once on May 19, 2014, and again on or about June 5, 2014. Id. at 5-6. With respect to the May 19 incident, Clehm claims Linkous came up behind her as she was leaving a building at work and told her he needed to ask her something. When she tried to walk away, Linkous grabbed her clothing, pulled her towards him, and repeatedly questioned her about his wife's supposed infidelity. He then suggested they have sex as revenge against his wife. Clehm told Linkous that she was not interested and that she had to get back to her job. Linkous told Clehm to let him know anything she saw or heard and to keep in touch and so forth. A co-worker witnessed some of the incident (he interrupted the incident and spoke to Linkous), and later reported what he saw to human resources. Clehm was sexually assaulted and battered again by Linkous on or around June 5 after visiting her locker. In the statement of facts accompanying Linkous's guilty plea, Linkous admitted to the following with respect to the June 2014 assault:

In June 2014, I saw Victim 2 [Clehm] at her locker, near die break room in die Tub House. Victim 2 began to exit the Tub House. As she neared die exit, I grabbed her by the upper arm and dragged her into a room on the side of the Tub House where electrical circuit breakers are housed (the "breaker room"). I closed the door and turned off the lights. I pushed her against a control panel and pinned her down with my body. I forcibly kissed her, unbuttoned her coverall clothing, and kissed her breasts against her will. I put my hands inside her coveralls and touched her vaginal area over her underwear with my hand against her will.

ECF No. 59, at 5-6. Clehm claimed that during die June assault, she feared for her life and was only able to leave when she told Linkous mat coworkers were waiting for her.

         Linkous pled guilty to criminal charges of sexual assault and battery of Clehm and other female coworkers in United States v. Joshua Linkous, No. 7:15-cr-00016. Linkous was consequently sentenced on October 13, 2015, to 14 years incarceration. In the aftermath of these events, Clehm suffered from various health issues, including migraines, inability to focus, debilitating headaches, depression, anxiety, and panic attacks. Clehm began seeking medical treatment for her stress at work and on August, 5, 2014, reported to her primary care doctor mat she had been sexually assaulted. ECF No. 154-26. Clehm later began seeking psychiatric counseling from a licensed clinical social worker, as well as from BAE's Employee Assistance Program. Clehm continued to struggle with fear, intrusive thoughts, and difficulty sleeping. On March 28, 2016, she went out on short term disability leave with BAE's approval. ECF No. 154-13; ECF No. 154-2, at 388, 400. She subsequently brought a civil action against Linkous in connection with the conduct for which Linkous was convicted criminally. Pursuant to Rule 17(b) and (c) of the Federal Rules of Civil Procedure, the court appointed Thomas E. Strelka, Esq. to serve as guardian ad litem for Linkous in the civil action. On August, 23, 2018, following a one day trial limited to damages on Count II against defendant Linkous, the jury returned a verdict in favor of Clehm, awarding her $500, 000 in compensatory damages and $250, 000 in punitive damages. A total of eight witnesses appeared on behalf of Clehm, including family, friends, former co-workers, Dr. Russell W. Melton from the Carilion Clinic, and Betty Jones, a Women's Resource Center counselor who worked with Clehm following the May and June 2014 assaults.

         Linkous has moved for the court to set aside the judgment entered on August, 27, 2918, and asserts a variety of grounds ostensibly supporting his motions for a new trial and for relief from judgment. He first claims that the amount awarded to the plaintiff was "grossly excessive." ECF No. 225, at 1. He attributes this excessive judgment to, among other things, the court's denying his October 16, 2018, motion to continue, ECF No. 198, which he claims prevented him from "properly assist[ing]" in his defense at trial "even with the assistance of my guardian ad litem." ECF No. 225, at 2-3. Linkous also maintains that his inability to have "regular and frequent" communication with his guardian ad litem, Thomas Strelka, Esq., contributed to die purportedly excessive verdict. Id. at 2. He further avers that his interests were "overly prejudiced" by being required to participate in the trial from a correctional facility and that he was denied the "opportunity to reasonably prepare for trial." ECF No. 227, at 1-2. The grounds presented in support of both motions are identical, indeed reproduced verbatim in each motion. The court also notes that many of the grounds proffered in Linkous's post-trial motions presently before the court are the same as those raised in his pre-trial motion to continue filed on the eve of trial, ECF No. 198, which the court denied. The court will address each of Linkous' claims in turn.


         The grant or denial of a motion for a new trial is entrusted to and a matter resting in the sound discretion of the district court. Wadsworth v. Clindon, 846 F.2d 265, 266 (4th Cir. 1988) (citing Old Dominion Stevedoring Corp. v. Polskie Linie Oceaniczne, 386 F.2d 193 (4th Cir. 1967)). The motion 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)(A). The United States Court of Appeals for the Fourth Circuit's list of acceptable grounds for which a court may exercise its discretion to grant a new trial includes: "(1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict." Atlas Food Sys. and Servs.. Inc. v. Crane Nat. Vendors. Inc., 99 F.3d 587, 594 (4th Cir. 1996); Cline v. Wal-Mart Stores. Inc., 144 F.3d 294, 301 (4th Cir. 1998). "This discretion includes overturning verdicts for excessiveness and ordering a new trial without qualification or conditioned on the verdict winner's refusal to agree to a reduction (remittitur)." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 432-33 (1996). To receive a new trial, the Fourth Circuit requires a finding that the jury verdict was made excessive by "passion and prejudice springing from indulgence, in the jury room, in such feelings, [that] may not be cured by a remittitur, but only a new trial." Bennett v. Fairfax Cty.. Va., 432 F.Supp.2d 596, 602 (E.D. Va. 2006) (citing Ford Motor Co. v. Mahone, 205 F.2d 267, 273 (4th Cir. 1953)). In other words, absent evidence of passion or prejudice by the jury, an excessive verdict alone is insufficient to grant a new trial. See Ford Motor Co. v. Mahone, 205 F.2d 267, 273 (4th Cir. 1953) (finding that an excessive verdict coupled with evidence that one of the jurors attempted to send a message to the plaintiffs counsel while the trial was in progress, which was designed to aid him in his conduct of the case, required a new trial); Allred v. Maersk Line, Ltd., 826 F.Supp. 965 (1993), 970 (E.D. Va. 1993), rev'd on other grounds. 35 F.3d 139 (4th Cir. 1994) (holding that although the jury award of $1, 000, 000.00 was excessive, the court could not order a new trial because there was no evidence that the verdict was the result of passion or prejudice); Great Coastal Express. Inc. v. Int'l Bhd. of Teamsters. Chauffeurs. Warehousemen, and Helpers of Am., 511 F.2d 839, 846 (4th Cir. 1975) (citing United Constr. Workers v. Helpers Baking Co., 223 F.2d 872 (4th Cir. 1955), for the proposition that an excessive verdict based on an improper jury instruction are grounds for a new trial). In reviewing a motion for a new trial, the court must weigh the evidence and consider the credibility of the witnesses to determine whether the verdict was against the clear weight of the evidence or was based upon evidence that was false. Knussman v. Maryland, 272 F.3d 625, 647 (4th Cir. 2001).

         Where granting a new trial would be improper because there is no evidence of "passion or prejudice" by the jury, a court may nonetheless require a remittitur if it concludes that a verdict is excessive. Bennett v. Fairfax Cty., Va., 432 F.Supp.2d 596, 599- 600 (E.D. Va. 2006). Under the practice of remittitur, "the trial court orders a new trial unless the plaintiff accepts a reduction in an excessive jury award." Cline v. Wal-Mart Stores. Inc., 144 F.3d 294, 305 (4th Cir. 1998). The court will first address Linkous' claim of excessiveness as to the compensatory and punitive damages awards and determine die propriety of granting a remittitur under Virginia law. The court will then assess whether, despite its findings vis-a-vis excessiveness and remittitur under Virginia law, it should nevertheless set aside the judgments and grant a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. Linkous' averments that are not directly related to the issue of excessiveness, namely that he was "overly prejudiced" by being required to participate from a correctional facility and his more generalized claim that he was "denied the opportunity to reasonably prepare for trial" will be addressed in the court's analysis of Linkous' alternative motion for relief from judgment under Rule 60.


         The gravamen of Linkous' motions, both for a new trial and relief from judgment, is the alleged excessiveness of the jury's damages awards. The jury returned $500, 000 in compensatory and $250, 000 in punitive damages. The court will address the alleged excessiveness of the compensatory and punitive damages awards separately, as different standards apply in assessing each award. Where a motion for a new trial is based upon the alleged excessiveness of the jury's damages awards, federal standards apply to federal claims, but state law standards must be applied to state law claims. Gasperini v. Center for Humanities. Inc., 518 U.S. 415, 426-31 (1996); Konkel v. Bob Evans Farms. Inc., 165 F.3d 275, 280-81 (4th Cir. 1999); Browning-Ferris Indus, of Vermont. Inc. v. Kelco Disposal. Inc., 492 U.S. 257, 279-80 (1989) (refusing to craft a federal common-law standard of excessiveness because "these are matters of state, and not federal, common law"). Thus, whether the jury's award of damages for the state tort claim of assault and battery in this matter should be remitted or otherwise set aside as excessive is a matter of Virginia law. Hughston v. New Home Media, 552 F.Supp.2d 559, 565 (E.D. Va. 2008) (citing Stamathis v. Flying J.. Inc., 389 F.3d 429, 438 (4th Cir. 2004)).

         Under Virginia law,

[w]hen a verdict is challenged on the basis of alleged excessiveness, a trial court is compelled to set it aside 'if the amount awarded is so great as to shock the conscience of the court and to create die impression that the jury has been motivated by passion, corruption, or prejudice, or has misconceived or misconstrued the facts or die law, or if the award is so out of proportion to the injuries suffered as to suggest that it is not the product of a fair and impartial decision.'

Shepard v. Capitol Foundry of Virginia. Inc.. et. al., 262 Va. 715, 718, 554 S.E.2d 72, 75 (2001) (quoting Edmiston v. Kupsenel, 205 Va. 198, 201, 135 S.E.2d 777, 780 (1964); Poulston v. Rock, 251 Va. 254, 256, 467 S.E.2d 479, 481 (1996)); see also Smithey v. Sinclair Ref. Co., 203 Va. 142, 148, 122 S.E.2d 872, 877 (1961) (explaining that the jury award should also be set aside if the jury misconceived the seriousness of the plaintiffs injuries). In making this determination, the court must evaluate the evidence relevant to the issue of damages, viewing such evidence in the light most favorable to the prevailing party - here Clehm. Shepard, 262 Va. at 718, 554 S.E.2d at 75 (citing Poulston v. Rock, 251 Va. 254, 261, 467 S.E.2d 479, 483 (1996)). If there is evidence, when viewed in die light most favorable to Clehm, to sustain the jury's $500, 000 compensatory damages award, then remitting or otherwise setting aside the award is error. Id. (citing Edmiston, 205 Va. at 202-03, 135 S.E.2d at 780).


         The Supreme Court of Virginia has held that physical harm and pecuniary losses are not required in order to sustain a substantial compensatory damage award and that "evidence of sorrow, mental anguish, and solace" are alone sufficient. Hughston v. New Home Media, 552 F.Supp.2d 559, 567 (E.D. Va. 2008) (citing Shepard, 262 Va. at 723, 554 S.E.2d at 77); Snyder v. Fatherly. 158 Va. 335, 351, 163 S.E. 358, 364 (1932); Williams Printing Co. v. Saunders, 113 Va. 156, 180, 73 S.E. 472, 478 (1912). While the compensatory damages award in this case is substantial compared to other state and federal cases involving sexual assault and battery, the Supreme Court of Virginia specifically proscribes comparing damage awards as a means of measuring excessiveness. Allied Concrete Co. v. Lester, 285 Va. 295, 316, 736 S.E.2d 699, 710 (2013) (holding that trial court improperly based decision to grant remittitur on improper comparison of awards and failed to consider proper factors in evidence or to provide any way of ascertaining whether the reduced award bears a reasonable relation to damages suffered by the plaintiff): John Crane. Inc. v. Jones, 274 Va. 581, 594-95, 650 S.E.2d 851, 857-58 (2007) (refusing to apply the "average verdict rule" to overturn a verdict, holding that excessiveness determinations must be based on the facts and circumstances of each case, and collecting cases where the Supreme Court of Virginia declined to engage in a comparison of verdicts in assessing excessiveness); Rose v. Jaques, 268 Va. 137, 159, 597 S.E.2d 64, 77 (2004) (The thrust of... Mills' argument is that the jury's verdict is excessive when compared to other [post-traumatic stress disorder] cases, statewide and nationally. However, . . . Mills cites no other case where this [c]ourt has sanctioned a verdict comparison analysis as the measure of a verdict's excessiveness.); cf. Weihua Huang v. Rector & Visitors of Univ. of Virginia. No. 3:11-CV-00050, 2013 WL 865845, at *11 (W.D. Va. Mar. 7, 2013) ("The Fourth Circuit has clearly indicated that past awards should serve as guidelines for the trial judge to consider when deciding whether to grant a new trial nisi remittitur."); Hetzel v. Cty. of Prince William, 89 F.3d 169, 172 (4th Cir. 1996) (instructing the district court to "closely examine the awards [in two other cases], which we believe are comparable to what would be an appropriate award in this case").

         Further, the Supreme Court of Virginia has repeatedly emphasized that the amount of a verdict is squarely within the jury's discretion, that it is inviolate when it is arrived at upon competent and proper instructions, and that all reasonable inferences must be drawn in favor of the verdict rendered when evaluating the appropriateness of the amount of a jury verdict. Showker v. Kratzer, 77 Va. Cir. 389, 389 (2009) (citing Richardson v. Braxton-Bailey, 257 Va. 61, 510 S.E.2d 732 (1999)). Virginia's highest court has also emphasized that "[i]f the verdict merely appears to be large and more than what the trial judge would have awarded had he been a member of jury, it should not be disturbed, because to do so would be to 'do what he may not legally do, that is, substitute his judgment for that of the jury.'" Smithey, 203 Va. at 146, 122 S.E.2d at 875. In sum, the law of Virginia establishes a formidable presumption against remitting or otherwise disturbing jury verdicts on excessiveness grounds. See Allied Concrete Co. v. Lester, 285 Va. 295, 317, 736 S.E.2d 699, 711 (2013) (McClanahan, J., dissenting) ("With this [c]ourt's ever evolving limitations upon the power and duty of trial judges to order remittitur, for all practical purposes the last nail in the coffin of remittitur has been driven . . . .").

         Here, Linkous asserts that the $500, 000 in compensatory damages awarded to the Clehm is "grossly excessive." There is no question that the award is substantial and at the outer reaches of a reasonable jury verdict. Nonetheless, given all the facts and the severity of Clehm's alleged injuries, as well as the sui generis nature of injuries involving sexual assault and battery, it cannot be said that the award is so excessive as to warrant intervention by the court. Indeed, with the exception of his own conclusory statements alleging excessiveness, Linkous, revealingly, has failed to point to any specific evidence showing that the jury award was the result of "passion, corruption, or prejudice."[1] Nor does Linkous aver, for example, that the $500, 000 award is against the weight of the evidence, disproportionate to the injuries suffered, or the result of a misconstrual of die facts or the law. Instead, Linkous attributes the allegedly excessive judgment to the court's refusal to grant his motion to continue, ECF No. .198, his inability to have regular and frequent contact with his guardian ad litem, and other issues largely tangential in adjudicating excessiveness.

         To the extent Linkous was dissatisfied with the level of communication with Strelka, he should have raised this issue at trial. He did not. Indeed, when asked explicitly by the court whether he was fully satisfied with the work of his guardian ad litem, Linkous answered affirmatively. With respect to the motion to continue, and the related claim that he was "denied the opportunity to reasonably prepare for trial," Linkous moved to continue the trial four months after he was first notified of the trial date and just one week before the trial was due to commence. Not only was this eleventh-hour motion to continue filed unreasonably late, but Linkous also provided no explanation for what he intended to do with any additional time to prepare for trial. In any event, these arguments are beside the point in assessing excessiveness, as they do not provide any basis for the court finding that the judgment was erroneous or fatally infected by passion, corruption, or prejudice.

         Linkous also does not allege that the court was in error as to the admission of any of the evidence, jury instructions, or other relevant proceedings during the trial. In order to determine if the $500, 000 verdict is one that is excessive enough to shock the conscience, it is necessary to look at the factors that would have influenced the jury to award the amount it did. The record reflects that the court instructed the jury as follows regarding compensatory damages:

Instruction No. 20
The purpose of compensatory damages is to make the plaintiff whole -- that is, to reasonably compensate the plaintiff for the damages she has suffered.
You may award compensatory damages only for injuries that the plaintiff proves were proximately caused by the defendant's conduct. The damages that you award must be fair compensation for all of the plaintiffs damages, no more and no less. You should not award compensatory damages for speculative injuries, but only for those injuries which the plaintiff ...

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