In a recent case, Judge Liam O’Grady astutely handled in his Jury Instructions and a Special Verdict Form the prospect of a jury’s duplicative and overlapping damage determinations. He then resolved the parties’ dispute on overlapping damages when he decided post-verdict remittitur motion. This case provides a roadmap for practitioners on how to handle similar problems in future cases.
Multi-count Complaint and Overlapping Damages
The case of Hair Club for Men, LLC v. Ehson et al, Civil Action No. 1:16cv236–LO/JFA involved a two-year covenant not-to-compete. Plaintiff (a former employer) sued to enforce the covenant against a departing employee and her new employer. Plaintiff sought not only an injunction but also considerable damages.
The Complaint alleged the usual suite of claims found in covenant-not-to-compete cases. The leading claim was for Breach of Contract, followed by claims for Trade Secrets Misappropriation, Tortious Interference, Unjust Enrichment, and Breach of Fiduciary Duty.
The case narrowed at summary judgment when the Court held that the defendants were liable on certain counts. Judge O’Grady ruled that the non-compete covenant was enforceable, and that, as a matter of law, the ex-employee breached her fiduciary duty. But still the Trade Secrets and Tortious Interference claims had to be tried, and the measure of damages for all claims was left open for trial. Perhaps surprisingly, the case did not settle after these rulings.
Seven months after filing of the Complaint, the case went to a jury trial for four days. The jury’s Special Verdict Form awarded Breach of Contract damages of $156,096, and then awarded damages of $258,330 on each of the three remaining counts. Additionally, the jury responded to the question of whether the damages awarded were duplicative by circling “Yes.”
Jury Instructions and Special Verdict Form
Judge O’Grady’s jury instructions navigated through the duplicative damages issue, and the Special Verdict Form focused the jury on the key question of duplication. Jury Instruction No. 39 addressed the possibility of overlapping damage awards:
In this case, Hair Club seeks to recover the same type of damages for lost profits on its breach of contract, breach of fiduciary duty of loyalty, misappropriation of trade secrets and tortious interference with contract and business advantage claims. A party is not entitled to multiple recovery for its losses. However, if you find that Hair Club has proved every element of each of its damages, and is entitled to recover for its claimed losses, you will be asked whether the recovery is duplicative, so that Hair Club does not recover more than it is entitled.
On the Special Verdict Form, Question No. 7 asked “Are any of the answers to questions 1, 3, 5, or 6 duplicative?”, followed by a simple “Yes/No” option. (The four identified questions corresponded to Plaintiff’s four separate remaining counts.)
Dealing with Duplicative Damages
Despite the simple “Yes/No” question, the jury’s verdict left uncertainty as to the overall damages. If the Court simply added all of the multiple damage awards, then the result would be a judgment for $934,086. Plaintiff agreed that the jury intended that the three awards of $258,330 were for the same conduct and damage. But Plaintiff also argued that the Breach of Contract damages should be added to the common damages, for a total damage award of $414,426. Judge O’Grady, however, concluded that the appropriate total damage award was $258,330.
Virginia law prohibits the award of duplicative damages “when the claims, duties, and injuries are the same.” Wilkins v. Peninsula Motorcars, Inc., 266 Va. 558, 587 S.E.2d 581 (2003). Judge O’Grady added that the “two claims are not duplicative if the conduct underlying the claims is different.” For this, he cited Advance Marine Enterprises, Inc. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148 (1998), and his analysis tracks the Wilkins opinion. The trial court must “evaluate whether multiple damage awards constitute impermissible double recovery” and that under Virginia law it is the responsibility of the trial court in reviewing a verdict to supervise “the damage awards to avoid double recovery.”
Plaintiff relied on Advanced Marine to argue that the damages were in part separate and therefore should be added to yield the aggregate damage award, but Judge O’Grady distinguished Advance Marine. In that case, the plaintiff proved a common set of compensatory damages under separate claims for Trade Secrets Misappropriation and Business Conspiracy. While the plaintiff was limited to only one set of compensatory damages, the plaintiff was allowed to recover both punitive damages under the Trade Secrets claim and to treble the compensatory damages under the Business Conspiracy claim.
Judge O’Grady summed his conclusion by stating that “compensatory damages for the same injury, based on the same evidence, should be awarded only once. This was consistent with Advance Marine. This rule holds even if the injury is articulated in multiple causes of action with separate burdens of proof.” But equally important, the judge ruled that it was his responsibility to make the determination using the jury’s answers on the Special Verdict Form.
The dilemma of overlapping and repetitive damages arises frequently. In the case before Judge O’Grady, the jury considered damages on four separate counts. The trial evidence, however, addressed the damages as a single compensatory loss. When the jury answered that the damages were duplicative, it was then the trial judge’s responsibility to resolve the parties’ disagreement on the extent of the duplication.
Too often, a jury’s verdict states only its liability findings and separate awards on multiple counts. In this situation, a judge ventures into potentially dangerous territory if he or she imputes that the damages are duplicative.
A question for both trial lawyers and judges is how best to manage this issue to steer away from the quagmire. Judge O’Grady’s jury instruction in Hair Club cleanly instructs on duplicative damages. He coupled his Instructions with the simple Special Verdict Form question about duplication. In Hair Club, this seems to have worked well, and perhaps is the model for multi-count cases where the claimed damages overlap.