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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 17-CV-1422 & 18-CV-167
ALISHA GORDON, APPELLANT,
V.
NADINE RICE, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CAB-5579-15)
(Hon. Michael Rankin, Trial Judge)
(Submitted June 20, 2019 Decided October 14, 2021)
Alisha Gordon, pro se.
Nadine Rice, pro se.
Before BECKWITH, Associate Judge, and NEBEKER and FISHER, Senior Judges. ∗
∗ Judge Fisher was an Associate Judge at the time of submission. His status changed to Senior Judge on August 23, 2020. 2
BECKWITH, Associate Judge: A jury found that appellant Alisha Gordon
committed an assault and battery on appellee Nadine Rice and awarded Ms. Rice
compensatory damages of $337 and punitive damages of $150,000, which the trial
court remitted to $33,363. On appeal, Ms. Gordon argues that the remitted award is
unconstitutionally excessive in light of the Supreme Court’s admonition that “few
awards exceeding a single-digit ratio between punitive and compensatory damages
. . . will satisfy due process.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 425 (2003). Because we cannot meaningfully review the trial court’s remitted
award to ensure that it comports with due process, we remand this case to the trial
court to reconsider the award in light of this opinion.
I.
Appellee Nadine Rice filed a complaint against appellant Alisha Gordon and
a codefendant, William Byrd, for assault, battery, and intentional infliction of
emotional distress (IIED) after a physical altercation among the three of them in the
hallway of their shared apartment complex. In her amended complaint, Ms. Rice
alleged the following. As Ms. Rice was walking up the stairs to her apartment, Ms.
Gordon and Mr. Byrd started to yell at her and prevented her from going into the
apartment. Ms. Gordon pepper sprayed Ms. Rice while Mr. Byrd watched, then Mr. 3
Byrd wrestled Ms. Rice to the ground. Ms. Gordon stomped on Ms. Rice and used
the apartment door to strike Ms. Rice while she was on the ground. Finally, Ms.
Rice’s complaint alleged that Mr. Byrd and Ms. Gordon gave false statements to
police officers that resulted in her arrest and prosecution for unlawful entry and
assault. Ms. Rice was ultimately acquitted of those charges.
The case proceeded to trial on the assault and battery claims after the trial
court dismissed Ms. Rice’s IIED claim for lack of evidence that Ms. Gordon and Mr.
Byrd’s conduct was outrageous. A set of videos of the incident introduced at trial
showed Ms. Rice charging through the door into Mr. Byrd and Ms. Gordon’s
apartment after the three argued, Mr. Byrd attempting to restrain her and push her
out, Ms. Gordon kicking Ms. Rice while Mr. Byrd restrained her on the ground, and
finally Ms. Gordon shutting the door and leaning on it while Ms. Rice was lying in
the threshold. 1
The jury concluded that Ms. Gordon committed assault and battery without
justification 2 and awarded Ms. Rice $337 in compensatory damages and $150,000
1 Ms. Gordon has not provided the court with transcripts of the bulk of the trial testimony. 2 The jury found that Mr. Byrd also committed battery but determined that his actions were justified as self-defense. 4
in punitive damages, a 445:1 ratio. Ms. Gordon moved for remittitur, requesting a
punitive damages award of $3,370 or less. The trial court granted Ms. Gordon’s
motion in part and remitted Ms. Gordon’s damages to $33,363, or a 99:1 ratio. Ms.
Gordon appealed both the jury’s verdict and the remitted award, and we consolidated
the appeals. 3
II.
Ms. Gordon argues that the evidence in this case did not support the
assessment of punitive damages against her and that, even if it did, the trial court’s
remitted award of $33,363 is still unconstitutionally excessive on its face under State
Farm, 538 U.S. at 425. 4 We address these arguments in turn.
3 Ms. Rice also filed an appeal, but she later dismissed it voluntarily. 4 Ms. Gordon also makes two arguments regarding evidentiary and instructional rulings at her trial: that it was improper to admit Ms. Rice’s testimony regarding her arrest, incarceration, and prosecution for unlawful entry and that the court should not have instructed the jury that it could award Ms. Rice damages for emotional distress because the emotional distress claim had already been dismissed. But as Ms. Gordon admits, she has not provided the transcripts that would show what Ms. Rice testified to at trial. Under D.C. App. R. 28(a)(10)(A), the appellant’s brief must contain the appellant’s “contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” And under D.C. App. R. 10(b)(1), the appellant has the duty to order transcripts of “such parts of the proceedings not already on file as the appellant considers 5
“[I]n order to sustain an award of punitive damages, the plaintiff must prove,
by a preponderance of the evidence, that the defendant committed a tortious act, and
by clear and convincing evidence that the act was accompanied by conduct and a
state of mind evincing malice or its equivalent.” Jonathan Woodner Co. v. Breeden,
665 A.2d 929, 938 (D.C. 1995). We review the trial court’s determination that there
was a triable claim for punitive damages for abuse of discretion. See Tolson v.
District of Columbia, 860 A.2d 336, 345 (D.C. 2004).
We perceive no flaws in the court’s conclusion that Ms. Gordon’s conduct
was sufficiently intentional and reprehensible to warrant sending the question of
punitive damages to the jury. In its order on Ms. Gordon’s remittitur motion, the
court noted several facts that supported this finding, including that Ms. Gordon
removed herself from the initial scuffle to retrieve the pepper spray from her
apartment, sprayed Ms. Rice multiple times in the face, stomped and kicked Ms.
Rice while Mr. Byrd was holding her down, and slammed the apartment door on Ms.
necessary.” It is impossible to assess if and how Ms. Rice’s testimony was inflammatory without seeing her testimony. Because it would also be next to impossible to determine the prejudicial effect of the emotional distress instruction without having a full view of whether and how Ms. Rice’s emotional distress was presented to the jury, we need not determine whether that instruction was given in error. Ms. Gordon has failed to demonstrate that either of these claims warrants reversal. 6
Rice’s body, all while Ms. Rice was restrained on the ground by Mr. Byrd and
otherwise defenseless. The trial court was “considerably better positioned than are
we to assess the gravity of [Ms. Gordon’s] wrongdoing” in determining whether the
evidence was “sufficient to sustain an award of punitive damages.” Daka, Inc. v.
McCrae, 839 A.2d 682, 696 (D.C. 2003). It did not abuse its discretion in submitting
the issue of punitive damages to the jury.
Even when punitive damages are in order, however, a punitive damages award
must comport with due process, which “prohibits the imposition of grossly excessive
or arbitrary punishments on a tortfeasor.” State Farm, 538 U.S. at 427. The
Supreme Court has identified three “guideposts”—which we will refer to as the Gore
factors—for reviewing courts to assess the constitutionality of a punitive damages
award:
(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.
Id. at 418 (citing BMW of N. Am. v. Gore, 517 U.S. 559, 575 (1996)); see also
McCrae, 839 A.2d at 697. We conduct de novo review of a trial court’s application
of these guideposts to a challenged award. McCrae, 839 A.2d at 697. Because 7
“[p]unitive damages pose an acute danger of arbitrary deprivation of property,” State
Farm, 538 U.S. at 417 (internal quotation marks omitted), we have considered it
“critical” that “courts conduct meaningful and adequate review of punitive damages
awards,” Modern Mgmt. Co. v. Wilson, 997 A.2d 37, 46 (D.C. 2010).
The trial court applied these principles to determine that the jury’s punitive
damages award of $150,000 was excessive. With regard to the first Gore factor, the
court concluded that Ms. Gordon’s conduct was “on the low end of the
reprehensibility scale.” In assessing the second factor, the court found that a ratio
of punitive to compensatory damages of 445:1 was high enough to “raise[ ] th[e]
court’s judicial eyebrow.” Because it recognized that higher ratios can nevertheless
be justified where low compensatory damages fail to reflect the harm caused or the
jurisdiction’s interest in deterrence, the court assessed the actual harm and the harm
likely to result from the conduct at issue in the case, finding both on the “low end of
the scale.” It also concluded that a higher ratio of punitive to compensatory damages
could not be justified based on deterrence needs stemming from Ms. Gordon’s
wealth, given that evidence of net worth was not sufficiently provided at trial. 5
5 Ms. Gordon argues that the punitive damages verdict cannot stand because Ms. Rice failed to establish net worth. It is true that “where a plaintiff seeks to recover punitive damages based on the wealth of the defendant, proof of the defendant’s current net worth is required.” Jonathan Woodner Co., 665 A.2d at 932. 8
When it came to the third Gore factor, the trial court “reviewed punitive damages
awards in similar civil actions in the District of Columbia” going back to the year
2000. From this search, it concluded that the most analogous case was one in which
the jury awarded $2,250 in punitive damages and $150 in compensatory damages—
a 15:1 ratio—to a plaintiff it found had been [battered] by a defendant who backed
his car into the plaintiff twice. 6 It also noted that the maximum criminal fine for the
conduct at issue—assuming Ms. Rice suffered “significant bodily injury”—would
be $12,500. The trial court thus found that all three Gore factors weighed against
the jury’s punitive damages award of $150,000.
Given that the trial court expressly disclaimed reliance on Ms. Gordon’s net worth in setting the remitted award, however, we see no error here. See id. at 941 n.19 (“[N]et worth is only one of several considerations relevant to a punitive damages determination.”). Although Ms. Gordon has argued that there was insufficient evidence of her net worth to permit an award based in part on her wealth, she has not challenged the award based on inability to pay. 6 In finding this case most similar, the trial court also considered a case in which the jury awarded $137,000 in punitive damages against a defendant who had choked a coworker, slammed her head into a filing cabinet, and struck her multiple times, causing a broken eye socket, a broken nose, and closed head trauma, and a case in which punitive damage awards of $15,000 to $30,000 were assessed against “police officers who threw objects across a restaurant, acted after ‘essentially no provocation,’ made derogatory comments about the plaintiffs while assaulting them, and consumed alcohol to the point of intoxication, while armed, then brawled in a crowded restaurant”—conduct the trial court found “more egregious” than Ms. Gordon’s. 9
The trial court then proceeded to determine the “maximum tolerable award.”
See Carter v. District of Columbia, 795 F.2d 116, 135 n.13 (D.C. Cir. 1986)
(“Because the seventh amendment right to jury trial pervades the atmosphere, it is
appropriate to set a remittitur so as to permit recovery of the highest amount the jury
tolerably could have awarded.”). It determined that the maximum punitive damages
award that would comport with due process was one having a double-digit ratio to
the compensatory damages award, and so set the award ninety-nine times higher
than the compensatory damages.
We must consider whether, as Ms. Gordon contends, the remitted award of
$33,363 is itself constitutionally excessive. The trial court did not justify its remitted
award using the Gore factors. And while we do not suggest that doing so is required
of a court remitting an award, we ultimately do not find it possible to conduct
“meaningful and adequate review” on this record given that—as we will next
explain—much of the trial court’s Gore analysis would seem to support an even
lower award. Cf. Louison v. Crockett, 546 A.2d 400, 405–07 (D.C. 1998) (reviewing
trial court’s decision denying remittitur of compensatory damages award in
negligence action under abuse of discretion standard and remanding because “the
record on its face provides questionable support for the verdict, and elucidation by
the trial court might clarify the matter”). 10
The Supreme Court has called the degree of reprehensibility of the
defendant’s conduct the “most import indicium of the reasonableness of a punitive
damages award.” Gore, 517 U.S. at 575. By the trial court’s own assessment, this
was a case “on the low end of the reprehensibility scale” when accounting only for
that harm that was established at trial and could properly be accounted for in the
punitive damages determination. It noted that the attack was a one-off incident, was
not “prolonged or sustained,” was the result of an “eruption of tensions” as opposed
to a “planned attack,” and did not “create a substantial danger to innocent
bystanders.” This does not indicate that the trial court saw Ms. Gordon’s conduct as
the sort of “particularly egregious act” that can support a punitive damages award
that greatly exceeds the compensatory damages. See id. at 582 (“[L]ow awards of
compensatory damages may properly support a higher ratio than high compensatory
awards, if, for example, a particularly egregious act has resulted in only a small
amount of economic damages.”).
Although there is no bright-line rule governing the ratio between punitive and
compensatory damages, “[s]ingle-digit multipliers are more likely to comport with
due process,” and “few awards exceeding [that] ratio . . . [by] a significant degree”
will be constitutionally permissible. State Farm, 538 U.S. at 425. We have
recognized, however, that some circumstances may justify higher—and perhaps 11
even significantly higher—ratios. For example, higher ratios may “comport with
due process where ‘a particularly egregious act has resulted in only a small amount
of economic damages.’” McCrae, 839 A.2d at 698 n.18 (quoting State Farm, 538
U.S. at 410). Compare Daka, Inc. v. Breiner, 711 A.2d 86 (D.C. 1998) (upholding
punitive damages award thirty-nine times greater than the compensatory damages
award in a workplace discrimination case), with McCrae, 839 A.2d at 699 (reversing
punitive damages award twenty-six times greater than the compensatory damages
award in subsequent workplace discrimination case against the same company as in
Breiner and distinguishing the even higher ratio found constitutionally permissible
there in part because “the plaintiff was awarded ‘substantial’ compensatory
damages . . . , almost nineteen times greater than the compensatory damages
awarded for similar emotional injury in [Breiner]”).
The trial court gave three reasons for not remitting the award to a single-digit
multiplier. First, it concluded that “reducing [Ms. Rice’s] punitive damages to
achieve a single-digit ratio [was] not warranted” in light of the “substantially low”
compensatory damages award. This may be the case, but the trial court did not then
provide a rationale for arriving at the highest possible double-digit-multiplier award.
The trial court’s own order does not suggest that it saw this as a case in which the
compensatory damages were on the low end of what the jury could have awarded 12
given the harm established at trial. 7 Cf. Howard Univ. v. Wilkins, 22 A.3d 774, 784
(D.C. 2011) (finding, in upholding punitive damages award of $42,677.50 that, “had
the jury awarded $42,677.50 in compensatory damages, it would have seemed
entirely reasonable—perhaps modest—in light of the evidence”). Nor is this a case
in which only nominal damages were awarded. Cf. id.; cf. also Arizona v. ASARCO
LLC, 773 F.3d 1050, 1058 (9th Cir. 2014) (collecting cases from various
jurisdictions finding ratio assessment under Gore’s second guidepost inapposite in
nominal damages cases). Although it is true that deterrence interests may justify
higher punitive damages awards where compensatory damages alone would fail to
serve that function, nothing in the trial court’s order suggests that a punitive damages
award less than ninety-nine times the compensatory damages would not provide
adequate deterrence. 8
Second, the trial court noted that Ms. Rice’s “harm—specifically, her
humiliation and indignation, is difficult for a jury [to] quantify.” See Modern Mgmt.,
7 The trial court found that the only compensable harm consisted of “physical injuries and garden variety emotional distress flowing from the assault and battery.” The only physical injuries Ms. Rice alleged in her complaint were bruises and lacerations, but her complaint does state that she “was taken to Providence Hospital to be treated for her injuries.” 8 This is especially so in light of what the District has deemed adequate deterrence in criminal cases involving analogous conduct. See infra. 13
997 A.2d at 57–58 (“A higher ratio may also be justified in cases in which the injury
is hard to detect or the monetary value of noneconomic harm might have been
difficult to determine.”). The trial court had determined that the only emotional harm
that could be accounted for in the damages assessment was “garden variety
emotional distress.” We fail to see, at least on the record before us, how this sort of
harm—difficult to quantify as it may be—can take this case out of the presumptive
single-digit-ratio range.
Third, the trial court found it “likely that the jury’s assessment of [Ms.
Gordon’s] malice toward [Ms. Rice] was influenced by comments [Ms. Gordon]
made, during her opening statement, that [Ms. Rice] consumes illegal drugs, as well
as [Ms. Gordon’s] reference to a particularly sensitive trauma [Ms. Rice] endured
years ago, which bore no relationship to the issues at bar.” The Supreme Court has
made clear that “[a] defendant’s dissimilar acts, independent from the acts upon
which liability was premised, may not serve as the basis for punitive damages.”
State Farm, 538 U.S. at 422. To the extent the award punishes Ms. Gordon for the
cruelty of a comment made during trial—and thus conduct unrelated to the conduct
for which she was found liable—it is not permissible under State Farm. If, on the
other hand, Ms. Gordon’s conduct at trial created a credibility issue as to her malice
toward Ms. Rice during the incident, we would defer to the trial court’s assessment 14
that a jury could reasonably have found the conduct at issue more reprehensible than
it might otherwise have. Howard Univ., 22 A.3d at 782 (“Because [the
reprehensibility analysis] may ‘turn[ ] on witness credibility and demeanor,’ trial
courts ‘have a somewhat superior vantage over courts of appeals.’” (quoting Cooper
Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 440 (2001))). Because we
cannot determine how Ms. Gordon’s conduct at trial factored into the award, we are
left with a concern that she may have been improperly punished for that conduct.
Finally, with regard to the third Gore factor, other civil and criminal penalties
suggest the remitted award may still pose constitutional concerns. The trial court
found Ms. Gordon’s conduct most analogous to assault under D.C. Code § 22-404.
Had Ms. Gordon been criminally charged with felony assault under that provision,
she would have faced a maximum fine of $12,500. See D.C. Code §§ 22-404(a)(2),
22-3571.01 (2021 Supp.). That fine would only apply if Ms. Gordon “intentionally,
knowingly, or recklessly cause[d] significant bodily injury,” meaning “an injury that
requires hospitalization or immediate medical attention.” See D.C. Code §§ 22-
404(a)(2), 22-3571.01 (2021 Supp.). Otherwise, the maximum fine would be
$1,000. 9 See D.C. Code §§ 22-404(a)(1), 22-3571.01 (2021 Supp.). Although these
9 The trial court’s order mistakenly concludes that the maximum fine for simple assault not resulting in significant bodily injury would be $2,500. The trial 15
fines could also be accompanied by a term of imprisonment, an additional measure
of punishment and deterrence and one that increases the difficulty of comparing this
case to others, the fines that would apply in the criminal context indicate “the
seriousness with which [the legislature] views the wrongful action.” Modern Mgmt.,
997 A.2d at 59–60 (alteration in original) (quoting State Farm, 538 U.S. at 428). 10
Thus, we “accord substantial deference to legislative judgments concerning
appropriate sanctions for the conduct at issue,” which helps ensure that punitive
damages awards are not arbitrary. Id. (quoting Gore, 517 U.S. at 583). We do not
suggest that a punitive damages award exceeding the maximum possible criminal
fine by this amount is always constitutionally suspect. But in light of the other
indicators here that the award is excessive, the fact that the District has found a
substantially lower fine sufficient to fulfill its interests in deterrence and punishment
court did not determine whether Ms. Gordon’s conduct was most analogous to simple assault (carrying a $1,000 maximum fine) or felony assault (carrying a $12,500 maximum fine). 10 For felony assault under D.C. Code § 22-404(a)(2), one can be “fined not more than [$12,500] or be imprisoned not more than 3 years, or both.” Id. (emphasis added); see also D.C. Code § 22-3571.01. For simple assault under D.C. Code § 22- 404(a)(1), one can be “fined not more than [$1,000] or be imprisoned not more than 180 days, or both.” Id. (emphasis added); see also D.C. Code § 22-3571.01. 16
makes us hesitant to affirm on this record. 11
The trial court reasonably applied the Gore factors to justify remitting the jury
award and took care to articulate its reasoning. The record does not, however,
indicate the court’s justification for setting such a high award—one that the
guideposts suggest may be excessive. In the absence of such a justification and
because much of the trial court’s reasoning supporting its conclusion to remit the
award at least ostensibly supports remitting it even further, we are unable to
meaningfully review the excessiveness of the remitted award.
11 This is especially so given that the trial court itself found a civil case resulting in a $2,250 punitive damages award—fifteen times higher than the compensatory damages of $150—most similar to this case in terms of conduct and reprehensibility. The fact-specific nature of the inquiry into the excessiveness of punitive damages—and the fact that the punitive damages award there was not necessarily the highest award that would comport with due process—means that we afford limited weight to that figure as a comparative matter. See Modern Mgmt., 997 A.2d at 25. Nevertheless, the trial court’s analysis of other civil jury verdicts is further indication of its view of the reprehensibility of Ms. Gordon’s conduct, a view seemingly in tension with the 99:1 remitted award.
We also note that the jury did not find Ms. Gordon’s codefendant liable for assault and battery because the jury concluded that Mr. Byrd acted in self-defense after Ms. Rice tried to charge into the apartment. Though the jury could reasonably conclude that Ms. Gordon’s conduct did not likewise constitute self-defense, this particular circumstance by no means bolsters the argument for a high punitive damages award. 17
For the foregoing reasons, we vacate the trial court’s remitted punitive
damages award and remand this case to allow the trial court to reconsider the award
in light of this opinion or issue findings explaining the reasoning supporting the 99:1
award. 12
So ordered.
12 Ms. Gordon also argues that the trial court erred by failing to offer her the alternative of a new trial when it remitted the award. Ms. Gordon’s argument is misplaced, as the right to a new trial instead of accepting a remitted damages award is a right that can only be exercised by the prevailing party, namely the plaintiff, “[t]o avoid violating the Seventh Amendment.” See Phillips v. District of Columbia, 458 A.2d 722, 724 (D.C. 1983).