Leyshon v. Diehl Controls North America, Inc.

• Court: Appellate Court of Illinois
• Decided: December 27, 2010
• Docket: 1-09-1848 NRel
• Status: Unpublished

Opinion

FIRST DIVISION December 27, 2010

No. 1-09-1848

WALLACE C. LEYSHON, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 06 L 3745 ) DIEHL CONTROLS NORTH AMERICA,) INC. and CHRISTOPH WEIGAND, ) Honorable ) Dennis J. Burke, Defendants-Appellants.) Judge Presiding.

PRESIDING JUSTICE HALL delivered the opinion of the court:

The plaintiff, Wallace C. Leyshon, brought suit against the

defendants, Diehl Controls North America, Inc. (DCNA) and

Christoph Weigand,1 alleging their breach of an employment

contract, violation of the Illinois Wage Payment and Collection

Act (820 ILCS 115/1 et seq. (West 2006)), and defamation.

Following trial, the jury returned a verdict for the plaintiff

and awarded damages. On the defamation claim, the jury awarded

the plaintiff $2 million in compensatory damages and $10 million

in punitive damages. The trial court denied the defendants'

posttrial motion but granted their request for a remittitur,

reducing the punitive damages award to $6 million.

On appeal, the defendants challenge only the finding of

liability on the defamation claim and the amount of the damages

awarded on that claim. They contend that: (1) under the

1 Christoph Weigand is referred to as both "Dr. Weigand" and

"Mr. Weigand" in the record. We will refer to him as "Dr.

Weigand." No. 1-09-1848

innocent-construction rule, there was no defamation per se, as a

matter of law, (2) "invited defamation" was a complete defense to

the defamation per se claim; (3) the compensatory damages award

was excessive, and (4) the punitive damages award was excessive

under Illinois common law and violated due process.

BACKGROUND

I. Facts

Diehl AKO Stiftung & Company, KG (Diehl), located in

Germany, is the parent company of DCNA. The plaintiff had been

president of DCNA since 2001. The plaintiff's employment was

pursuant to a written contract. His most recent contract was

effective January 1, 2005, through December 31, 2007. The

contract was signed on behalf of Diehl by Dieter Neugebauer,

chairman of the supervisory board of Diehl, and Dr. Weigand, a

member of the supervisory board.

Relevant to the defamation allegations, the contract

provided as follows:

"The Company shall have the right to immediately

terminate this Agreement and employee's employment for

'cause' without prior notice. 'Cause' shall include gross

negligence, gross neglect of duties, gross insubordination

and willful violation of any law applicable to the conduct

of the Company's business and affairs."

On February 1, 2006, Dr. Weigand informed the plaintiff that he

was terminated for cause.

2 No. 1-09-1848

A. Liability Evidence

The parties do not dispute the facts surrounding the

utterance of the words or the words themselves the plaintiff

alleged defamed him. Those facts are summarized below.

On February 1, 2006, the plaintiff was in his office at

DCNA. At 11 a.m., Heinz Ruediger Kraemer, chief financial

officer of DCNA, entered the plaintiff's office accompanied by

Dr. Weigand, the new chairman of DCNA. Almost immediately, Dr.

Weigand announced to the plaintiff that he was fired. When the

plaintiff asked the reason, Dr. Weigand replied that he was not

required to give a reason. Citing the investment of his time and

his career in DCNA, the plaintiff continued to press Dr. Weigand

for a reason for his termination. Again, Dr. Weigand told the

plaintiff he did not have to tell him the reason.

After summoning John Dugan, a part-time human resources

employee, to serve as a witness, the plaintiff requested that Dr.

Weigand repeat what he had stated to the plaintiff. Dr. Weigand

repeated that the plaintiff was terminated. When the plaintiff

then asked what he was terminated for, Dr. Weigand responded,

"'for cause.'" When the plaintiff expressed incredulity, Dr.

Weigand stated, "'You are terminated for cause under the terms of

your employment agreement.'" The plaintiff responded, "'You are

telling me that you are firing me for gross insubordination, for

gross misconduct, for gross negligence and willful violation of

the law?'" Dr. Weigand responded, "'Yes'" and would not elaborate

3 No. 1-09-1848

further. When the defendant asserted he had rights as an

employee, Dr. Weigand informed him that Diehl was fully committed

to this decision and would commit its "ample" resources to

contest any steps the plaintiff might take. The plaintiff was

ordered to vacate his office immediately.

B. Damages Evidence

The plaintiff testified as follows. After his termination,

he returned home and informed his wife that he had been

terminated for cause. She became extremely upset. The plaintiff

found it very humiliating to have to tell his teenage son that he

had been fired for cause. Two weeks later, he attended an

employees dinner at which "nobody could look [him] in the eye."

The plaintiff explained that he took his reputation very

seriously because it was the basis of his career in the industry

in which he worked. The plaintiff's reputation impacted how

effective he was in business and whether he appealed to business

people. Given his experience, the companies he had worked for

and how he was able to attract people to work for him, his

reputation was very valuable. He was shocked by his termination

because there was no basis for it. He was very humiliated to be

terminated for cause. The view in the United States is that

termination for cause means it is felony based or involves sexual

misconduct.

According to the plaintiff, the alleged defamatory statement

impacted his standing in the business community and his ability

4 No. 1-09-1848

to find work. He contacted several of the companies he had done

business with while at DCNA, as well as several competitors.

Despite repeated attempts to make contact with people at these

companies, he received no response from any of them. Even the

people he had regularly communicated with prior to his

termination did not return his calls.

Kathleen Leyshon, the plaintiff's wife, testified as

follows. Over the years, Mrs. Leyshon had been involved with the

plaintiff's various business ventures. From her attendance at

industry meetings and conventions, she observed that the

plaintiff was highly regarded among the leaders in his industry.

The plaintiff was honored with the Illinois Entrepreneur of the

Year award, as well as a supplier award from Maytag, which was

viewed as beneficial to DCNA.

According to Mrs. Leyshon, when the plaintiff returned home

after his termination, he did not look well and was quite pale.

When he told her the reasons for the termination, she was shocked

and found it unbelievable. After building up a very good

reputation, the whole experience of being terminated and having

to remove his belongings from his office was extremely traumatic,

upsetting and humiliating for the plaintiff. At a party the

plaintiff and she organized to say goodby to the employees, many

of them expressed concern for the plaintiff and his family.

The plaintiff also presented evidence that his termination

was the result of the defendants' premeditated scheme to rid

5 No. 1-09-1848

themselves of the plaintiff. The plan required that the

plaintiff be fired for cause, even though the defendants knew

there was no basis for doing so. Mr. Neugebauer testified that

Dr. Weigand wanted the plaintiff terminated for cause in order to

avoid having to pay him the sums he would be entitled to under

his contract. In addition, the plaintiff had voiced concern to

Dr. Weigand over certain of Diehl's tax practices.

Richard Sbarbaro, an executive search management consultant,

testified regarding the effect termination for cause had on the

plaintiff's ability to find employment. Based on Mr. Sbarbaro's

experience, the plaintiff would not be considered for a

comparable position because of the implications of the

termination for cause. Termination for cause referred to gross

misconduct, significant financial malfeasance, sexual harassment

or drug use on the job. Mr. Sbarbaro would never recommend a

candidate who had been terminated for cause to a prospective

employer.

Based on his 30 years of experience and his sensitivity to

such issues, Mr. Sbarbaro believed that the plaintiff's

termination for cause was known in the market place. He

explained that it was very difficult to maintain confidentiality

in business. The fact that the plaintiff's significant contacts

refused his telephone calls signaled that the plaintiff's

termination for cause was known outside of DCNA. In addition, it

had been 2 1/2 years, and the plaintiff had yet to secure gainful

6 No. 1-09-1848

employment.

According to the defendants' witnesses, following the

plaintiff's termination from DCNA, DCNA customers were told that

the plaintiff was no longer with DCNA but were not told that the

plaintiff was discharged for cause. While searching for a

replacement for the plaintiff, Dr. Weigand told a recruiter that

the plaintiff had been terminated suddenly because, while sales

were increasing, profits were not.

The jury returned a verdict finding in favor of the plaintiff

and against the defendants on the claim of defamation per se.2

The jury awarded the plaintiff $2 million in compensatory damages

and $10 million in punitive damages. The trial court denied the

defendants' posttrial motion but granted a remittitur of the

punitive damages award and reduced the award to $6 million. The

defendants appeal.

ANALYSIS

I. Innocent-Construction Rule

The defendants contend that the denial of their motion for a

judgment n.o.v. was error because, under the innocent-

2 The jury rejected the defendants' position that the

plaintiff's termination was "for cause" as defined in the

employment contract and awarded damages for breach of the

employment contract. The jury also found for the plaintiff on

the defendants' counterclaim alleging breach of fiduciary duty

and unjust enrichment.

7 No. 1-09-1848

construction rule, Dr. Weigand's statement, "'You are terminated

for cause under the terms of your employment agreement,'" was not

actionable.3

A. Standard of Review

The preliminary construction of an allegedly defamatory

statement is a question of law. Therefore, our review is de

novo. Tuite v. Corbitt, 224 Ill. 2d 490, 511, 866 N.E.2d 114

(2006).

B. Discussion

"A statement is defamatory if it tends to harm a person's

reputation to the extent that it lowers that person in the eyes

of the community or deters others from associating with that

person." Tuite, 224 Ill. 2d at 501. Illinois recognizes five

categories of statements that are defamatory per se, two of which

are implicated in this case: statements imputing an inability to

perform or want of professional integrity in performing

employment duties and statements imputing a lack of ability or

that otherwise prejudice a person in his profession or business.

Tuite, 224 Ill. 2d at 501-02. Even if a statement falls into one

of the per se categories, the statement will not be actionable if

3 In their motion for partial summary judgment, the

defendants argued, inter alia, that, under the innocent-

construction rule, Dr. Weigand's statement could not support an

action for defamation per se as a matter of law. The trial court

denied their motion.

8 No. 1-09-1848

it is reasonably capable of an innocent construction. Tuite, 224

Ill. 2d at 502.

In Green v. Rogers, 234 Ill. 2d 478, 917 N.E.2d 450 (2009),

our supreme court explained the innocent-construction rule as

follows:

"Under the 'innocent-construction rule,' a court must

consider the statement in context and give the words of the

statement, and any implications arising from them, their

natural and obvious meaning. [Citation.] Indeed, this court

has emphasized that the context of the statement is critical

in determining its meaning, as a given statement may convey

entirely different meanings when presented in different

contexts. [Citation.] If the statement may reasonably be

innocently interpreted, it cannot be actionable per se.

[Citation.] Stated differently, 'a statement "reasonably"

capable of a nondefamatory interpretation, given its verbal

or literary context, should be so interpreted. There is no

balancing of reasonable constructions ***.' [Citation.] At

the same time, when the defendant clearly intended and

unmistakably conveyed a defamatory meaning, a court should

not strain to see an inoffensive gloss on the statement.

[Citation.]" (Emphasis in original.) Green, 234 Ill. 2d at

499-500, quoting Mittelman v. Witous, 135 Ill. 2d 220, 232,

552 N.E.2d 973 (1989), abrogated on other grounds in Kuwik

v. Starmark Star Marketing & Administration, Inc., 156 Ill.

9 No. 1-09-1848

2d 16, 619 N.E.2d 129 (1993).

In Skopp v. First Federal Savings of Wilmette, 189 Ill. App.

3d 440, 545 N.E.2d 356 (1989), the reviewing court held that "for

cause" was not actionable because the words were capable of an

innocent construction. The plaintiffs' employment at First

Federal was terminated. In speaking with members of a placement

firm hired by First Federal to assist the plaintiffs, First

Federal's vice-president stated that the plaintiffs had been

terminated for cause. According to the plaintiffs, in the

savings and loan industry, the term "for cause" meant that the

plaintiffs had engaged in misconduct. The trial court granted

summary judgment to the defendants, and the plaintiffs appealed.

The reviewing court affirmed the summary judgment. The

court determined that the plaintiffs failed to establish that the

placement firm members had any specialized knowledge of the

savings and loan industry so as to understand the industry

meaning of "for cause." The court further found that, even if

the industry definition was applicable, besides serious instances

of misconduct, the definition of "for cause" contained in the

federal rules and procedures listed several reasons for

termination, which did not impart unfitness or want of integrity

and which would not prejudice someone in his profession. Skopp,

189 Ill. App. 3d at 446.

Noting that courts in Kansas and New York had found the

statement terminated "for cause" to be actionable, the court in

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Skopp agreed with the court in Terry v. Hubbell, 22 Conn. Supp.

248, 167 A.2d 919 (1960), explaining as follows:

"[In Terry], it was held that the statement was not libel

per se because '[t]aken in their "natural and ordinary

meaning," the words "discharged for cause" mean no more than

that the plaintiff was released or dismissed from an office

or employment for some undisclosed circumstance which

operated to produce that effect.'" Skopp, 189 Ill. App. 3d

at 445, quoting Terry, 22 Conn. Supp. at 256, 167 A.2d at

923.

The plaintiff maintains that the result in Skopp must be

viewed in light of subsequent Illinois decisions applying the

innocent-construction rule. In Bryson v. New America

Publications, Inc., 174 Ill. 2d 77, 672 N.E.2d 1207 (1996), our

supreme court emphasized that the innocent construction must be

reasonable. The court explained that the innocent-construction

rule did not apply simply because the allegedly defamatory words

were "capable" of an innocent construction. The court explained

further as follows:

"In applying the innocent construction rule, courts must

give the allegedly defamatory words their natural and

obvious meaning. [Citations.] Courts must therefore

interpret the allegedly defamatory words as they appeared to

have been used and according to the idea they were intended

to convey to the reasonable reader. [Citation.] When a

11 No. 1-09-1848

defamatory meaning was clearly intended and conveyed, this

court will not strain to interpret allegedly defamatory

words in their mildest and most inoffensive sense in order

to hold them nonlibellous under the innocent construction

rule." Bryson, 174 Ill. 2d at 93.

In Bryson, the court found that it need not determine

whether the term "slut" always implied unchastity. Given the

context of the statement, the court refused to find that the

defamatory word must be innocently construed as a matter of law.

Bryson, 174 Ill. 2d at 94. More recently, the decision in Green,

reemphasized the importance of the context in which the alleged

defamatory words were uttered. In Green, the supreme court found

that the statement accusing the plaintiff, who had served as a

little league coach and manager, of misconduct and stating that

he abused players, coaches and umpires, was capable of an

innocent construction, given the very broad meanings of

"misconduct" and "abuse," as well as the context in which they

were used. Green, 234 Ill. 2d at 501-02. Since the abuse and

misconduct statements were then followed by assurances that the

plaintiff would be free to assist with activities involving his

son's team, the court found the statements reasonably capable of

an innocent construction. Green, 234 Ill. 2d at 503.

In contrast to Skopp, where as long as a word or statement

could be innocently construed, it was nonactionable under the

innocent-construction rule, under Bryson and its progeny, just

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because a word may have an innocent meaning does not require that

it be innocently constructed. The context in which the words or

statement were uttered also must be considered. In the present

case, the context in which Dr. Weigand's statement was made was

the sudden termination of the plaintiff's employment and Dr.

Weigand's confirmation that the reasons for the plaintiff's

termination were gross insubordination, gross misconduct, gross

negligence and willful violation of the law.

We conclude that, given the context in which Dr. Weigand's

statement that the plaintiff was terminated for cause was made,

the statement cannot reasonably be construed as having an

innocent meaning as a matter of law.

II. The Invited-Defamation Defense

The defendants contend that, as the plaintiff "invited" Dr.

Weigand's statement and even summoned a witness to hear it, the

invited-defamation defense applies and completely defeats the

plaintiff's claim. The defendants concede that they did not

raise this defense until their posttrial motion. The defense is

forfeited as explained below.

In Thornton v. Garcini, 237 Ill. 2d 100, 928 N.E.2d 804

(2009), our supreme court held that the defendant forfeited his

right to raise the single-recovery rule to bar damages for

emotional distress by raising the rule for the first time in a

posttrial motion. Thornton, 237 Ill. 2d at 112. The defendant

had numerous opportunities to raise the rule: as an affirmative

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defense, in pretrial motions in limine, in a motion for a

directed verdict, and during the jury instructions conference.

Due to the defendant's failure to raise the issue before the

entry of the jury's verdict, the plaintiff had no notice or

opportunity to defend against the defendant's claim. Therefore,

the issue was forfeited. Thornton, 237 Ill. 2d at 112.

The defendants maintain that section 2-1202(b) of the Code

of Civil Procedure (735 ILCS 5/2-1202(b) (West 2008)) preserved

their right to raise the defense. Section 2-1202(b) provides as

"Relief after trial may include the entry of judgment if

under the evidence in the case it would have been the duty

of the court to direct a verdict without submitting the case

to the jury, even though no motion for directed verdict was

made or if made was denied or ruling thereon reserved." 735

ILCS 5/2-1202(b) (West 2008).

A motion for a judgment n.o.v. may be made in a posttrial motion,

to challenge the plaintiff's failure to prove an element of his

case. Kennan v. Checker Taxi Co., 250 Ill. App. 3d 155, 160, 620

N.E.2d 1208 (1993).

The defendants assert that the invited-defamation defense is

not an affirmative defense, but acts to prevent the plaintiff

from proving the publication, a necessary element of his cause of

action for defamation. The defendants maintain that, as in

Kennan, section 2-1202(b) preserved their right to raise the

14 No. 1-09-1848

plaintiff's failure to prove publication. We disagree.

The invited-defamation defense is an affirmative defense.

An affirmative defense is defined as "[a] defendant's assertion

of facts and arguments that, if true, will defeat the plaintiff's

or prosecution's claim, even if all the allegations in the

complaint are true." Black's Law Dictionary 451 (8th ed. 2004).

Section 11:15 of Illinois Jurisprudence, Personal Injury & Torts

(11 Ill. Jur. Personal Injury & Torts §11:15 (2009)) provides

that where the publication is procured by the plaintiff, it is

not actionable. Accordingly, where the plaintiff has proven all

the elements of defamation per se, including publication, the

affirmative fact that the plaintiff invited the publication will

defeat the cause of action. See the Restatement (Second) of

Torts §§583, 584 (1977) (except in the case of honest inquiry or

investigation, consent of the person defamed is a complete

defense to an action for defamation).

The defendants rely on decisions from other jurisdictions,

holding that invited defamation involves a lack of publication.

In Williams v. School District of Springfield, 447 S.W.2d 256

(Mo. 1969), overruled on other grounds by Bass v. Nooney Co., 646

S.W.2d 765 (Mo. 1983), the court observed that there was no

publication where the defamation was invited by the plaintiff.

Williams, 447 S.W.2d at 268, relying on 33 Am. Jur. Libel &

Slander §93, at 105-06. However, that statement is at odds with

both the Restatement and Illinois Jurisprudence that the invited-

15 No. 1-09-1848

defamation defense is a total defense to an action for

defamation. In Charles v. State Department of Children & Family

Services, District 9, 914 So. 2d 1 (Fla. App. 2005), the court

recognized the general rule that invited defamation was a

complete defense to an action for defamation, but explained that

"Florida has approved this general rule but has couched it in

terms of a lack of 'publication,' one of the elements necessary

to establish a prima facie case of slander." Charles, 914 So. 2d

at 3. Therefore, the holding in Charles is peculiar to Florida

law.

As an affirmative defense, the invited-defamation concedes

that there has been publication, as well as the other elements of

defamation, but because it was "invited," the defamation is not

actionable. Unlike Kennan, the defendants' posttrial request for

a judgment n.o.v. was not based on the plaintiff's failure to

prove a necessary element of his cause of action but on an

affirmative defense, which would have defeated the plaintiff's

cause of action for defamation. Therefore, section 2-1202(b) did

not preserve the defendants' right to raise the invited-

defamation defense in their posttrial motion.

We further reject the defendants' contention that they had

no opportunity to raise the invited-defamation defense prior to

their posttrial motion because the amended complaint did not set

forth the circumstances in which the alleged defamatory statement

was made. Once the trial began, the defendants were fully aware

16 No. 1-09-1848

of the circumstances in which the statement was made. Their

failure to raise the defense in their motion for a directed

verdict or, even after hearing all of the evidence, failing to

request a jury instruction on the defense, belies the defendants'

assertion that their first opportunity to raise the defense was

in their posttrial motion.

As in Thornton, the defendants' failure to raise the defense

of invited defamation prior to the jury verdict, denied the

plaintiff the opportunity to respond to a defense that, if

proven, would have been a complete defense to the plaintiff's

cause of action. Therefore, the defendants have forfeited the

invited-defamation defense.

III. Compensatory Damages

The defendants contend that the trial court erred when it

denied their motion for a remittitur of the compensatory damages

award. They maintain that the evidence does not support the $2

million compensatory award.

This court reviews a ruling on a motion for a remittitur for

an abuse of discretion. Diaz v. Legat Architects, Inc., 397 Ill.

App. 3d 13, 45, 920 N.E.2d 582 (2009).

Where, as here, a defamatory statement is actionable per se,

the plaintiff is not required to plead and prove actual damage to

his or her reputation to recover damages. Bryson, 174 Ill. 2d at

17 No. 1-09-1848

87. As the supreme court explained, "statements that fall within

these actionable per se categories are thought to be so obviously

and materially harmful to the plaintiff that injury to her

reputation may be presumed." Bryson, 174 Ill. 2d at 87. In

addition, "it is often extremely difficult, if not impossible, to

present evidence to support an award of compensatory damages

based on the actual harm sustained." Gibson v. Philip Morris,

Inc., 292 Ill. App. 3d 267, 278, 685 N.E.2d 638 (1997). Presumed

damages include damages for mental suffering, personal

humiliation, impairment of professional reputation and standing

in the community and for economic loss. Gibson, 292 Ill. App. 3d

at 278.

The defendants maintain that, in the absence of specific

proof, the plaintiff was not entitled to damages for lost

employment opportunities. Dr. Weigand testified that no one

outside of the Diehl organization was told that the plaintiff was

terminated for cause. He also testified that, by letter or in

some cases in a meeting, DCNA's customers were told only that the

plaintiff was no longer with DCNA.

However, Dr. Weigand did not explain what reason was given

for the plaintiff's departure. There was also evidence Dr.

Weigand told an executive recruiter that the plaintiff's

termination was sudden. Mrs. Leyshon testified that the DCNA

employees attending the farewell party expressed their concern

for the plaintiff. The plaintiff testified that people at the

18 No. 1-09-1848

party would not look him in the eye and that his contacts in the

industry no longer returned his calls. Mr. Sbarbaro testified

that the fact that the plaintiff was terminated for cause would

be hard to keep confidential, as demonstrated by the plaintiff's

lengthy period of unemployment. In Mr. Sbarbaro's opinion, the

plaintiff would never be able to obtain another executive

position.

The cases relied on by the defendants are distinguishable.

In Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742 F.

Supp. 1359 (N.D. Ill. 1990), the defamation count was dismissed

based on the innocent-construction rule; the issue of damages was

never reached. In Vilien v. Department of Education of City of

New York, No. 06-CV-3491 (S.D.N.Y. March 31, 2009), there was no

issue as to damages because the plaintiff failed to prove

defamation. In Chenoweth v. Maui Chemicals & Paper Products,

Inc., No. 07-00092 DAE-KSC (D. Haw. September 3, 2008), the court

granted summary judgment to the defendants on the defamation

claim where the plaintiff could not identify the defamatory

statements and merely relied on rumors.

The defendants also rely on Soto-Lebron v. Federal Express

Corp., 538 F.3d 45 (1st Cir. 2008). In that case, the employee

was discharged after being suspected of sending cocaine in a Fed

Ex package. The allegation proved false, and the employee sued

claiming, inter alia, damages for defamation. The court found

that the employee's economic and emotional problems resulted from

19 No. 1-09-1848

the fact of termination and were not connected to his libel

claim. The court pointed out that there was no evidence that the

employee's subsequent employers ever saw the libelous statements

made by Fed Ex. Soto-Lebron, 538 F.3d at 66-67. Unlike Soto-

Lebron, the testimony of the plaintiff, his wife and Mr. Sbarbaro

provided evidence that knowledge of the defaming statement had

spread beyond DCNA.

Finally, the defendants maintain that $2 million in

compensatory damages is excessive in light of the decisions in

Republic Tobacco Co. v. North Atlantic Trading Co., 381 F.3d 717,

734 (7th Cir. 2004), and Brown & Williamson Tobacco Corp. v.

Jacobson, 827 F.2d 1119 (7th Cir. 1987). In Brown & Williamson,

the trial court reduced a jury verdict of $3 million in

compensatory damages to $1. After determining that the jury

award was not based on passion or prejudice because it was lower

than that requested by the plaintiff, the court of appeals found

that $1 million was the appropriate award, explaining as follows:

"Although the jury did conscientiously fulfill its duty

in this case, we are hesitant to uphold the entire [$3

million] award. Illinois law requires appellate courts to

examine jury awards under the doctrine of presumed damages

with great care to determine whether they are 'substantial'

or within an acceptable range. [Citations.] We hold that

an award of $1,000,000 in compensatory damages is

appropriate in this case. The $1,000,000 in presumed

20 No. 1-09-1848

damages is sizable but on the facts of this case it is not

'substantial' under Illinois law. We grant that it is

difficult to draw a distinction ***." Brown & Williamson,

827 F.2d at 1142.

Observing that television was a powerful medium, the court noted

that the defamatory material was broadcast four times by a

respected journalist and in a television market of approximately

2.5 million people. The court concluded as follows:

"We recognize that this is a very inexact and somewhat

arbitrary process. Nonetheless, the process is inherent in

the doctrine of presumed damages. An appellate court must,

under Illinois law, use its judgment in determining the

extent to which a jury award of presumed damages will be

upheld. Our judgment is $1,000,000." Brown & Williamson,

In Republic Tobacco Co., the court reduced a compensatory

award of $3.36 million to $1 million. The court held that "in a

case lacking proof of economic injury and where the defamatory

statements were publicized to a limited audience, it would be

inappropriate to award presumed damages that are exponentially

greater than have been awarded in past cases. The court

continued as follows:

"While we are mindful that under the doctrine of presumed

damages a party is not required to show specific loss, there

must be some meaningful limit on the magnitude of a jury

21 No. 1-09-1848

award when it is arrived at by pure speculation. Presumed

damages serve a compensatory function - when such an award

is given in a substantial amount to a party who has not

demonstrated evidence of concrete loss, it becomes

questionable whether the award is serving a different

purpose." Republic Tobacco Co., 831 F.3d at 734.

Unlike the above cases, the plaintiff did not rely solely on

the presumption of damages but also presented proof of damages.

That evidence was largely uncontradicted. We conclude that the

trial court's denial of a remittitur of the compensatory damages

was not an abuse of discretion.

IV. Punitive Damages

Notwithstanding the trial court's reduction of the punitive

damages from $10 million to $6 million, the defendants contend

that the punitive damages award is still excessive under Illinois

common law and violates due process. As the Illinois punitive

damages inquiry is distinct from the constitutional challenge

(Blount v. Stroud, 395 Ill. App. 3d 8, 22, 915 N.E.2d 925

(2009)), they will be addressed separately.

A. Illinois Common Law

1. Standard of Review

As stated above, this court reviews a ruling on a motion for

a remittitur for an abuse of discretion. Diaz, 397 Ill. App. 3d

at 45. The underlying question is whether the trial court was

correct in ordering the remittitur. Slovinski v. Elliott, 237

22 No. 1-09-1848

Ill. 2d 51, 61, 927 N.E.2d 1221 (2010).

Juries are charged with the determination of the amount of

punitive damages because the amount depends so closely upon the

fact-finding by the jury. Blount, 395 Ill. App. 3d at 22. The

amount of punitive damages will not be reversed unless it must

have been the result of passion, partiality or corruption.

Blount, 395 Ill. App. 3d at 22. As the jury's determination of

the amount of punitive damages is predominately a factual issue,

the court will not reverse the award unless it is against

the manifest weight of the evidence. Blount, 395 Ill. App. 3d at

22.

2. Discussion

The relevant circumstances to consider in reviewing a jury

award of punitive damages include, but are not limited to, the

nature and enormity of the wrong, the financial status of the

defendant and the defendant's potential liability. Blount, 395

Ill. App. 3d at 22. Each case is assessed in light of the

specific facts and circumstances involved, and the underlying

purpose of a punitive damage award must be satisfied. Blount,

395 Ill. App. 3d at 22. As the supreme court recently

reiterated: "Punitive damages 'are not awarded as compensation,

but serve instead to punish the offender and to deter that party

and others from committing similar acts of wrongdoing in the

future.' " Slovinski, 237 Ill. 2d at 57-58, quoting Loitz v.

Remington Arms Co., 138 Ill. 2d 404, 414, 563 N.E.2d 397 (1990).

23 No. 1-09-1848

The court cautioned that, as punitive damages are not favored in

the law and are penal in nature, courts must make sure they are

not awarded improperly or unwisely. Slovinski, 237 Ill. 2d at

58.

The defendants argue that the $6 million punitive damages

award is excessive in light of the $50,000 punitive damages award

in Girsberger v. Kresz, 261 Ill. App. 3d 398, 633 N.E.2d 781

(1993). While factually similar because it involved an

employment situation, that case does not assist the defendants.

In Girsberger, the trial court remitted the jury's compensatory

award from $175,000 to $150,000, and the punitive damages award

from $184,000 to $50,000. The defendant appealed only the

punitive damages award. The reviewing court held that as the

compensatory award was now three times as much as the punitive

damages award, the punitive damages award could not now be

considered excessive. Girsberger, 261 Ill. App. 3d at 416. To

the extent that the court in Girsberger relied on the ratio

between the amounts, in Blount, the court noted that under the

Illinois common law analysis, there was no requirement that the

amount of punitive damages imposed on a defendant bear any

particular proportion to the size of the plaintiff's compensatory

recovery. Blount, 395 Ill. App. 3d at 23, citing Deal v. Byford,

127 Ill. 2d 192, 204, 537 N.E.2d 267 (1989).

The defendants point out that in the summary judgment

proceedings, the plaintiff maintained that the statements made in

24 No. 1-09-1848

Girsberger were nearly identical to the ones made in this case.

However, as the defendants acknowledge, the plaintiff's argument

was made in the context of addressing the innocent-construction

rule. As noted above, in determining punitive damages, each case

is decided on its own facts.

Next, the defendants assert that the jury's original

punitive damages award of $10 million was 5 times more than the

plaintiff requested. As a result, the defendants reason that the

jury failed to differentiate between the breach of contract claim

and the defamation claim, as well as passion and prejudice on the

part of the jury. The defendants correctly note that punitive

damages may not be awarded for a breach of contract, even if the

breach was willful. They point to remarks by the plaintiff's

attorney in closing argument that the defendants had been taking

$2 million per year out of DCNA and sending it to Diehl, and his

multiple references to the plaintiff being "stabbed in the back,"

which, the defendants maintain, had nothing to do with the

defamation claim.

The jury's punitive damages award was not five times more

than the plaintiff requested. The plaintiff's attorney argued to

the jury as follows:

"The evidence also is that the defendants had been

taking $2 million in license fees and management fees to

Diehl AKO. $2 million from this U.S. company that [the

plaintiff] started. We ask with respect to punitive damages

25 No. 1-09-1848

that you award at least one year of the amount of

transaction fees or license fees and management fees that

has been going out of this U.S. company."

As recognized by the trial court during argument on the

defendants' posttrial motion, the plaintiff was asking for a

minimum of $2 million; it was not "a locked in amount." The

plaintiff was not seeking only $2 million in punitive damages.

Contrary to the defendants' argument that "stabbing the plaintiff

in the back" could only refer to the breach of contract claim, it

is also reflective of the evidence that the plaintiff worked hard

for DCNA and that the defendants responded by defaming him.

Moreover, the jury was instructed to assess the amount of

punitive damages necessary to punish the defendants and to deter

them and others from such conduct in the future.

Next, the defendants argue that, under Mullin v.

Spangenberg, 112 Ill. 140 (1884), where the plaintiff offers no

evidence of the defendant's financial condition, the plaintiff is

entitled only to an amount based on the presumption that the

defendant has no pecuniary resources. Mullin, 112 Ill. at 145-

46. This district followed Mullin in Black v. Iovino, 219 Ill.

App. 3d 378, 580 N.E.2d 139 (1991). In Black, the court observed

that if the plaintiff fails to introduce evidence of the

defendant's financial condition, the defendant is prohibited from

doing so. Black, 219 Ill. App. 3d at 394. Relying on Mullin,

the court in Black stated as follows:

26 No. 1-09-1848

"In other words, a plaintiff cannot have it both ways.

While he may choose to not introduce any evidence of

defendant's financial status, his doing so will limit his

recovery of punitive damages to an amount sufficient to

punish or deter a man who is without pecuniary resources."

Black, 219 Ill. App. 3d at 395.

Because the record was devoid of any evidence of the defendant's

financial condition, the court reduced the punitive damages from

$20,000 to $1,000. Black, 219 Ill. App. 3d at 395.

In Verdonck v. Scopes, 226 Ill. App. 3d 484, 590 N.E.2d 545

(1992), the Second District Appellate Court declined to follow

the court's holding in Mullin limiting the amount of punitive

damages where the plaintiff elected not to present any evidence.

The court in Verdonck noted that while the supreme court had not

explicitly overruled Mullins, it did so implicitly in Deal.

Verdonck, 226 Ill. App. 3d at 490. In Deal, the court stated

that it would not set aside the jury's punitive damages award

where the plaintiff did not offer any evidence of the defendant's

financial condition, noting that the defendant's financial

condition was only one consideration. Deal, 127 Ill. 2d at 204-

05. The court in Verdonck further noted that Black did not

distinguish Deal, and therefore, the court found the holding in

Black to be inconsistent with that of the supreme court in Deal.

Verdonck, 226 Ill. App. 3d at 491.

Without referring to either Mullin or Black, subsequent

27 No. 1-09-1848

cases from this district have ruled that the failure of the

plaintiff to offer evidence of the defendant's financial status

did not require that the jury's punitive damages award be

overturned. See Gomez v. The Finishing Co., 369 Ill. App. 3d

711, 722, 861 N.E.2d 189 (2006); Levy v. Markal Sales Corp., 268

Ill. App. 3d 355, 382, 643 N.E.2d 1206 (1994) (the defendants had

the burden of introducing evidence of their financial position,

citing Deal). Relying on Deal, the Fifth District Appellate

Court stated as follows:

"If a defendant facing a punitive damages claim realizes

that the plaintiffs are not presenting what would clearly be

relevant financial-status evidence, the defendant bears the

burden of putting on that evidence. After all, the

defendant is ultimately responsible for paying those

damages. If [the defendant] knew that he would have

financial difficulties in paying a punitive damages award,

then he should have so informed the jury. [The defendant]

cannot now complain that the [plaintiffs] failed to present

that evidence." Ford v. Herman, 316 Ill. App. 3d 726, 734-

35, 737 N.E.2d 332 (2000), citing Deal, 127 Ill. 2d at 205.

Since Deal, the prevailing authority is that a defendant is

not entitled to overturn an award of punitive damages on the sole

basis that the plaintiff did not present evidence of the

defendant's financial status. But see Warren v. LeMay, 142 Ill.

App. 3d 550, 491 N.E.2d 464 (1986) (a defendant may not introduce

28 No. 1-09-1848

evidence of his financial status as an independent defense to the

award of punitive damages unless the plaintiff offers such

evidence, citing Mullin). We agree with the court in Verdonck

that Mullin was implicitly overruled by the supreme court in Deal

and that the holding in Black is inconsistent with Deal.

Therefore, we will not overturn the award of punitive damages in

this case because the plaintiff did not offer evidence of the

defendants' financial status.

Finally, the defendants maintain that, since the enormity of

the harm to the plaintiff was not great and considering the

defendants' financial condition, the punitive damages award is

excessive. The defendants did not introduce any evidence of Dr.

Weigand's financial status. As for DCNA, the defendants rely on

a DCNA financial statement, showing that DCNA had a negative net

worth of $2.3 million in 2005, and $3.6 million in 2006. The

plaintiff responds that the financial statement also provides

that DCNA had a written agreement with Diehl for financial

support through 2008. We find Slovinski instructive.

In Slovinski, the plaintiff sued for defamation, and the

jury awarded $0 for lost wages, $0 for damages to the plaintiff's

reputation, $81,600 for emotional distress and $2 million in

punitive damages. The supreme court affirmed the appellate

court's reduction of the punitive damages award from $2 million

to $81,600. The supreme court explained as follows:

"In short, there was no evidence presented to the jury

29 No. 1-09-1848

that defendant had an intentional, premeditated scheme to

harm plaintiff. The most that may be said on this record -

and defendant does not contest this point - is that

defendant's defamatory statements were made with a reckless

disregard for plaintiff's rights. This places defendant's

conduct on the low end of the scale for punitive damages,

far below those cases involving a defendant's deliberate

attempt to harm another person.

Other facts of record also indicate that a small

punitive damages award is appropriate in this case. For

example, the evidence before the jury was that defendant did

not repeat the defamatory statements, but made them only

once, in the July 1996 meeting. The scope of the

publication was also limited, to those individuals present

in the meeting.

Further, the jury's [award] with respect to

compensatory damages shows limited harm to plaintiff."

Slovinski, 237 Ill. 2d at 64.

The factors absent in Slovinski are present in this case.

There was evidence of a premeditated scheme to harm the

plaintiff, not just by terminating his employment but by

announcing that it was for cause. It was a reasonable inference

from the evidence at trial that the plaintiff's termination for

cause had become public knowledge and prevented the plaintiff

from obtaining comparable employment. Unlike the jury in

30 No. 1-09-1848

Slovinski, the jury in the present case awarded the plaintiff $2

million in compensatory damages, reflecting the jury's conclusion

that the plaintiff sustained serious injury due to the

defendants' conduct. See also Gibson, 292 Ill. App. 3d 267

(appellate court affirmed punitive damage award of $1 million

where the compensatory damage award was $215,000).

We conclude that the $6 million punitive damages award was

not against the manifest weight of the evidence.

B. Due Process

Whether the amount of an award of punitive damages violates

due process is reviewed de novo. International Union of

Operating Engineers, Local 150 v. Lowe Excavating Co., 225 Ill.

2d 456, 870 N.E.2d 303 (2006).

Under the relevant test to determine whether an award of

punitive damages is excessive three factors are considered: "

'(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.' " Lowe Excavating Co., 225 Ill. 2d at 470,

quoting State Farm Mutual Automobile Insurance Co. v. Campbell,

538 U.S. 408, 418, 155 L. Ed. 2d 585, 601, 123 S. Ct. 1513, 1520

31 No. 1-09-1848

(2003) (Campbell I).4 The parties agree that the civil penalties

imposed in comparable cases is not applicable to this case.

a. Degree of Reprehensibility

This factor is considered to be the most important in

determining the reasonableness of a punitive damages award.

BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 134 L. Ed.

2d 809, 826, 116 S. Ct. 1589, 1599 (1996). In determining

reprehensibility, the court considers: (1) whether the harm

caused was physical as opposed to economic; (2) whether the

tortious conduct evinced an indifference to or a reckless

disregard for the health and safety of others; (3) whether the

target of the conduct was financially vulnerable; (4) whether the

conduct involved repeated actions or was an isolated incident;

and (5) whether the harm was the result of intentional malice,

trickery or deceit, or mere accident. Lowe Excavating Co., 225

Ill. 2d at 470, citing Campbell I, 538 U.S. at 419, 155 L. Ed. 2d

at 602, 123 S. Ct. at 1521.

The presence of one of these factors may not be sufficient

to support a punitive damages award; the absence of all of the

above factors renders any award suspect. Campbell I, 538 U.S. at

419, 155 L. Ed. 2d at 602, 123 S. Ct. at 1521. Since it is

presumed that the plaintiff was fully compensated by the

4 The United States Supreme Court opinion will be referred to

as Campbell I. The Utah Supreme Court's opinion on remand from

the Supreme Court will be referred to as Campbell II.

32 No. 1-09-1848

compensatory damages, the defendant's conduct must be

sufficiently reprehensible to warrant the imposition of further

sanctions to achieve punishment or deterrence. Campbell I, 538

U.S. at 419, 155 L. Ed. 2d at 602, 123 S. Ct. at 1521.

Initially, there is no evidence that the defendants' conduct

evidenced a reckless disregard for the safety of others.

Therefore, this factor does not favor the plaintiff.

The defendants maintain that Dr. Weigand's statements did

not cause any physical harm to the plaintiff. The plaintiff

disagrees, relying on the evidence of his emotional distress and

feelings of humiliation. The plaintiff relies on Seltzer v.

Morton, 2007 MT 62, 336 Mont. 225, 154 P.3d 561. However, in

that case, the defendant's conduct caused the plaintiff to suffer

significant physical complications as a result of the emotional

distress caused by the defendant's conduct. Seltzer, 2007 MT 62,

¶172, 336 Mont. 225, 154 P.3d 561. In the present case, the

plaintiff provided no evidence of physical complications

resulting from his emotional suffering.

The plaintiff also relies on Campbell v. State Farm Mutual

Automobile Insurance Co., 2004 UT 34, ¶30, 98 P.3d 409 (Campbell

II). Upon remand from the United States Supreme Court, the Utah

Supreme Court held that because the harm had its origins in a

financial transaction, rather than a physical assault or trauma,

this did not govern whether the harm was economic or physical.

The court determined that after assuring the plaintiffs-insureds

33 No. 1-09-1848

that their assets were not at risk, the defendant-insurer placed

the plaintiffs at risk of having a judgment entered against them

in a wrongful-death suit. When the judgment was in fact entered

against the plaintiffs, the defendant abandoned them. The court

found that the defendant caused the plaintiffs "profound

noneconomic injury" and held that "[i]t simply will not do to

classify this injury as solely 'economic' for the purposes of

evaluating it under the first prong of the Gore reprehensibility

test." Campbell II, 2004 UT 34, ¶¶29, 30, 98 P.3d 409.

The defendants rely on Slovinski where the supreme court

upheld a remittitur of the $2 million punitive damages award to

$84,600, an amount equal to the compensatory damages. The court

determined that the facts warranted a small punitive damages

award. In particular, the court noted that while damages were

awarded for emotional distress, there was no evidence of

physical harm to the plaintiff, i.e., no visits to doctors or

therapists, no evidence the plaintiff missed work or altered his

daily activities.

The analysis in Slovinski was made under the Illinois common

law, not the constitutional standard. See Slovinski, 237 Ill. 2d

at 65 (having affirmed the remittitur, the court was not required

to determine if the award violated due process). Moreover, in

Campbell II, the Utah court observed that by the Supreme Court's

comment that the harm arose in the economic realm and not from a

physical assault or trauma, the court did not "read this comment

34 No. 1-09-1848

to foreclose our value-based assessment of the type of injuries

which may flow from the abuse of transactions in the economic

realm, nor to bar us from judging the reprehensibility of such

abusive conduct." Campbell II, 2004 UT 34, ¶23, 98 P.3d 409; but

see Walker v. Farmers Insurance Exchange, 153 Cal. App. 4th 965,

63 Cal. Rptr. 3d 507 (2007) (economic and emotional injuries are

not physical harm).

In Blount, this court addressed the reprehensibility factor

and found that, while the harm to plaintiff was primarily

emotional and economic, she suffered physical manifestations,

such as anxiety attacks and an infection. In addition, she had

been threatened with physical violence. The threats of physical

violence made the defendant's conduct (in an employment-

retaliation case) more reprehensible than one involving strictly

emotional and economic harm. Blount, 395 Ill. App. 3d at 25.

In the present case, the plaintiff presented evidence of the

emotional distress and humiliation he suffered as the result of

the defamation. While emotional distress has been considered in

determining reprehensibility, this factor does not strongly favor

the plaintiff.

The third factor, financial vulnerability favors the

plaintiff. In Blount, the defendant threatened the plaintiff, a

single mother with two children, with the loss of her job if she

testified in favor of another employee who was suing the

defendant. Noting that single mothers had been recognized as

35 No. 1-09-1848

financially vulnerable, the court found this factor in the

plaintiff's favor. Blount, 395 Ill. App. 3d at 25.

In the present case, the plaintiff was in his mid-fifties

and had devoted many years to building DCNA. He supported his

wife and two children. His financial future was directly tied to

DCNA. Being fired for cause meant that the plaintiff lost his

salary and all his benefits, including health insurance,

immediately. Moreover, Dr. Weigand told the plaintiff that

Diehl's substantial resources would be utilized to see that the

plaintiff never received any money. While the plaintiff had made

valuable contacts over the years, these contacts now proved

worthless because he had been fired "for cause."

The fourth factor is whether the defendants had engaged in

repeated misconduct. By punishing a repeat offender more

severely than a first-time offender, our courts have recognized

that repeated misconduct is more reprehensible than an individual

instance of wrongdoing. See Gore, 517 U.S. 576-77, 134 L. Ed. 2d

at 827, 116 S. Ct. at 1599-1600 ("strong medicine is required to

cure the defendant's disrespect for the law").

The plaintiff's reliance on O'Neill v. Gallant Insurance

Co., 329 Ill. App. 3d 1166, 769 N.E.2d 100 (2002), is misplaced.

The reviewing court found repeated misconduct by an insurer

towards its insured within the confines of one claim. However,

in reaching that determination, the court also found that the

insurer had engaged in a pattern of conduct over a five-year

36 No. 1-09-1848

period of refusing to settle cases, resulting in excess judgments

against the insurer's Illinois customers, other than the

plaintiff. O'Neill, 329 Ill. App. 3d at 1183-84.

There is no evidence that the defendants had ever terminated

an employee under similar circumstances. The defendants' conduct

toward the plaintiff was merely a pattern of misconduct within

one extended transaction, but without evidence of instances of

similar conduct by the defendants in relation to parties other

than the plaintiff. See Willow Inn, Inc. v. Public Service

Mutual Insurance Co., 399 F.3d 224, 232 (3d Cir. 2005).

Therefore, the repeated misconduct factor does not favor the

plaintiff.

The final factor is whether the harm to the plaintiff was

the result of intentional malice, trickery or deceit, or mere

accident. The defendants maintain that the "backstabbing"

referred to by the plaintiff was related to his wrongful

termination, not his defamation claim. The defendants further

maintain that any finding of malice should be offset by the fact

that the plaintiff invited Dr. Weigand's statement.

The jury heard evidence that the plaintiff's termination for

cause was the end result of a plan by the defendants to rid

themselves of the plaintiff to avoid paying him the sums he was

entitled to under his employment contract. Even though they were

aware that there were no grounds for terminating the plaintiff

for cause, the defendants chose maliciously to proceed with the

37 No. 1-09-1848

plan. As further evidence of malice, Dr. Weigand threatened the

plaintiff that Diehl would use its resources to insure that the

plaintiff's efforts to contest his termination would fail. By

choosing to defame the plaintiff in order to terminate his

employment, the defendants acted with malice; the defamation did

not occur by accident. Therefore, this factor favors the

We conclude that the defendants' conduct was sufficiently

reprehensible. The defendants wished to terminate the

plaintiff's employment without having to pay him the benefits due

under his employment contract. In order to achieve this result,

the plaintiff was terminated for cause, representing that he had

committed acts of gross misconduct, when in fact, there were no

grounds for firing the plaintiff. The defendants damaged the

plaintiff's reputation, in effect ended his career, and caused

him great humiliation.

Finally, the defendants threatened to use their considerable

assets to see that the plaintiff never received any compensation.

The use of the power of a corporation to humiliate and destroy

the reputation of an individual who had faithfully served the

corporation, warranted a significant amount of punitive damages.

b. Ratio Between Punitive and Compensatory Damages

Under the second Gore factor, the court compares the ratio

between the actual harm to the plaintiff and the punitive damages

award. Blount, 395 Ill. App. 3d at 26. This court has

38 No. 1-09-1848

recognized that " 'an award of more than four times the amount of

compensatory damages might be close to the line of constitutional

impropriety,' and that 'few awards exceeding a single-digit ratio

between punitive and compensatory damages, to a significant

degree, will satisfy due process.' " Blount, 395 Ill. App. 3d at

26, quoting Campbell I, 538 U.S. at 425, 155 L. Ed. 2d at 606,

123 S. Ct. at 1524. However, as the court in Lowe Excavating Co.

noted:

"The Supreme Court has 'consistently rejected the notion

that the constitutional line is marked by a simple

mathematical formula' [citation] and has declined 'to impose

a bright-line ratio which a punitive damages award cannot

exceed.' " Lowe Excavating Co., 225 Ill. 2d at 484, quoting

Gore, 517 U.S. at 582, 134 L. Ed. 2d at 830, 116 S. Ct. at

1602 and Campbell I, 538 U.S. at 425, 155 L. Ed. 2d at 605,

123 S. Ct. at 1524.

The defendants point out that in Lowe Excavating Co., the

court noted that the best way to determine whether the ratio

between the compensatory damages award and the punitive damages

award was appropriate, was to compare it to awards in other

similar cases. Lowe Excavating Co., 225 Ill. 2d at 487. The

defendants rely on Mendez-Matos v. Municipality of Guaynabo, 557

F.3d 36 (1st Cir. 2009). In that case, the plaintiffs sued for

unlawful detention, which occurred in the midst of a contract

dispute between the mayor and the construction company building a

39 No. 1-09-1848

municipal parking garage. The jury awarded $35,000 in

compensatory damages and $350,000 in punitive damages. The court

of appeals reduced the punitive damages award to $35,000. The

court determined, first, that the case involved conduct of a

lesser degree of reprehensibility. The court then cited the

Supreme Court's statement in Campbell I, that where the

compensatory award was substantial, " 'then a lesser ratio,

perhaps only equal to compensatory damages, can reach the

outermost limit of the due process guarantee.' " Mendez-Matos,

557 F.3d at 55, quoting Campbell I, 538 U.S. at 425, 155 L. Ed.

2d at 606, 123 S. Ct. at 1524.

In Campbell II, the court addressed the language in the

Supreme Court's opinion in Campbell I, cited by the court in

Mendez-Matos, as follows:

"In its discussion of the relationship between

compensatory and punitive damages, the Supreme Court

reaffirmed that ratios exceeding single-digits, which it

strongly implied mark the outer limits of due process, may

be appropriate only where ' "a particularly egregious act

has resulted in only a small amount of economic damages," '

or where ' "the monetary value of noneconomic harm may have

been difficult to determine." ' [Citation.] *** The 1-to-1

ratio between compensatory and punitive damages is most

applicable where a sizable compensatory damages award for

economic injury is coupled with conduct of unremarkable

40 No. 1-09-1848

reprehensibility." Campbell II, 98 P.3d at 418, quoting

State Farm, 538 U.S. at 425, 155 L. Ed. 2d at 606, 123 S.

Ct. at 1524, quoting Gore, 517 U.S. at 582, 134 L. Ed. 2d at

831, 116 S. Ct. at 1602.

The court in Campbell II, approved a ratio of 9-to-1 between the

punitive damages award and the compensatory award ($9,018,780.75

and $1 million). See Campbell II, 2004 UT 34, ¶__, 98 P.3d 409.

The defendants' reliance on Lowe Excavating Co. is

misplaced. There the supreme court reduced the punitive damages

awarded in an illegal picketing case from $325,000 to $50,000;

the compensatory award was $4,680. The court noted that the

Union's conduct was much less egregious than in other cases where

double-digit ratios between the punitive and compensatory damages

awards had been upheld. Nonetheless, the court approved an 11-

to-1 ratio in that case as reasonable and constitutional. Lowe

Excavating Co., 225 Ill. 2d at 490.

In the present case, the punitive damages award was $6

million, after the remittitur granted by the trial court, and the

compensatory damages award was $2 million. The ratio was 3-to-1.

While the compensatory damage award was substantial, the

defendants' conduct was significantly reprehensible. Therefore,

the $6 million punitive damages award does not violate due

process.

We conclude that the punitive damages award did not violate

due process.

41 No. 1-09-1848

CONCLUSION

For all of the foregoing reasons, the judgment of the

circuit court is affirmed.

Affirmed.

LAMPKIN and ROCHFORD, JJ., concur.

42 No. 1-09-1848 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be attached to Each Case)

Please use WALLACE C. LEYSHON, following form:

Plaintiff-Appellee,

v. DIEHL CONTROLS NORTH AMERICA, INC. and CHRISTOPH WEIGAND, Complete TITLE of Case Defendants-Appellants.

Docket No. No . 1-09-1848 Appellate Court of Illinois COURT First District, First Division

Opinion December 27, 2010 Filed (Give month, day and year)

PRESIDING JUSTICE HALL delivered the opinion of the court. JUSTICES LAMPKIN and ROCHFORD, JJ., concur.

dissents .

APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin: Circuit Court of Cook County: the Hon. _____ Appeal from the Circuit Court of Cook County. Judge Presiding ________________ For APPELLANTS, The Hon. Dennis J. Burke, Judge Presiding. John Doe, of _____________________________________________________________________ Chicago.

Indicate if attorney represents APPELLANTS OR APPELLEES and include For APPELLEES, attorneys of counsel. Indicate the word NONE if not represented. Smith and Smith, of Chicago (Joseph Brown, FOR APPELLANTS: E. King Poor, Charles Harper, J., Jacquelyn T. of counsel). Pinnell, Joshua M. Schneider, Quarles & Brady LLP, 300 North LaSalle

Also add attor- Street, Suite 4000, Chicago, IL 60654 neys for third party appellants and/or appellees. FOR APPELLEES: Constantine L. Trela, Jr., Jeremy G. Mallory, Sidley Austin LLP, One South Dearborn Street, Chicago, IL 60603 Caesar A. Tabet, Mark H. Horwich, Tabet DiVito & Rothstein LLC 209 South LaSalle Street, 7th Floor, Chicago, IL 60603

(USE REVERSE SIDE IF NEEDED)

43 No. 1-09-1848