BENNETT v. R L CARRIERS SHARED SERVICES, LLC (E.D.Va. 9-30-2010)

hich proximately caused actual injury or damages to the plaintiff was done maliciously or wantonly or oppressively, then you may, but are not required to, assess, in addition to any damages, such amount as you shall agree to be proper punitive damages. An act or failure to act is maliciously done if prompted by ill will or spite or grudge or by a desire to see another suffer. Here, unlike in the liability phase, actual malice cannot be inferred from lack of probable cause. An act or a failure to act is wantonly done, if done in a reckless or callous disregard of, or indifference to, the rights of another person or persons. An act or failure to act is oppressively done if done in a way or manner that injures or damages or otherwise violates the rights of another person with unnecessary harshness or severity, as by misuse or abuse of authority or power or taking advantage of some weakness or disability or misfortune of another person.
J.I. No. D.

There is here no express evidence that the Defendants actually knew or believed that Bennett was innocent. Nor is there express evidence that the Defendants were prompted by spite, personal animosity, or some other markedly wicked intention. Actual malice, however, may still exist where there is "such recklessness or negligence as to evince a conscious disregard of the rights of others." Pigg, supra, 152 S.E.2d at 277. This type of "[w]ilful or wanton conduct imports knowledge and consciousness that injury will result from the act done."Id. To prove actual malice under this type of circumstance, "[i]ll will is not a necessary element . . ."Friedman v. Jordan, 184 S.E. 186, 187 (Va. 1936).

Here, there is a legally sufficient evidentiary basis for a reasonable jury to have found "actual malice." At the absolute commencement of McGinnis's investigation, the evidence indicates that Finley gave McGinnis three names of people believed to have a special interest in computers: Mitchell, Spangler, and Lowrey. McGinnis, therefore, focused his preliminary investigation on these men. The initial shipping paperwork for the thirteen missing laptops also immediately focused McGinnis on Mitchell and Spangler, as neither could explain why one had reported that the shipment arrived at the Richmond Terminal, while the other had reported that it did not. Further, McGinnis focused on Lowrey because he believed that Lowrey was deceptive, untrustworthy, and untruthful, commenting on Lowrey's suspicious mannerisms, his intentional lying "to take the heat off of him," and his lying about having no knowledge about the missing tower computers. McGinnis also thought that, in his first two interviews, Spangler was being untruthful and, of course, by changing stories in the third interview, Spangler obviously implicitly admitted that the first two stories were untrue. Moreover, the change of stories caused McGinnis to doubt Spangler's truthfulness as well.

Rather obviously, McGinnis then could not have Bennett arrested on the basis of Spangler's testimony alone. So McGinnis made the rather strange decision to feed Spangler's third version of events to Lowrey, a man McGinnis already believed to be a liar. After a heated exchange, Lowrey adopted Spangler's third version (by saying "that's the way it happened").

McGinnis then, just before accompanying Lowrey to his home to recover the stolen computer, instructed Finley to call the police to have them at R L upon McGinnis's return even though, at the time, he believed that Lowrey was continuing to lie and knew where all three of the missing tower computers were. The party went to Lowrey's home where Lowrey again engaged in highly suspicious conduct by refusing to allow McGinnis into his home and then produced only one of the three missing tower computers. McGinnis then returned to R L. While McGinnis claimed to have been wary of Bennett's mannerisms and by his direct answers to questions (a truly strange reaction) in his interview with Bennett, McGinnis did not interview Bennett a second time. McGinnis did not wait for the police to interview Bennett on their own. McGinnis did not seek to recover the two remaining computers from Bennett's house. He called for Bennett's arrest.

And, as explained in discussing the malice element, McGinnis did so without first trying to corroborate the stories told by the liars on whose word he had decided to have Bennett arrested. Had McGinnis followed what would seem to be basic investigative procedure (checking the company's work records and the criminal history records of the witnesses and Bennett), he would have found that Spangler's third version could not be true at all because he did not work the night of the theft. And, he would have found how unreliable Lowrey really was because of a previous felony conviction. Nor did McGinnis tell the police that Spangler and Lowrey had lied previously in the investigation.

The circumstances, as explained previously herein, illustrate clearly that a reasonable jury could, and did, find a want of probable cause. The Fourth Circuit, analyzing Virginia malicious prosecution law, has noted that, while the "lack of probable cause alone does not infer actual malice, it does lend support to a

finding that the defendants acted with actual malice." Stamathis v. Flying J. Inc., 389 F.3d 429, 441 (4th Cir. 2004) (internal citation omitted).

Here, that evidence, taken together with the rest of the record, would permit a reasonable jury to have determined that the Defendants acted with such recklessness and negligence as to evince a conscious disregard of Bennett's rights. The jury reasonably could have determined that the Defendants' seeking to have Bennett arrested prior to any police involvement based on Spangler's thrice-amended story, Lowrey's amended agreement with Spangler's story following McGinnis's feeding that story to Lowrey, without disclosing to the police the lies told by the key witnesses, without disclosing the fact that McGinnis had decided that Spangler and Lowrey were liars, and without corroborating the evidence offered by admitted liars and the rush to judgment shown here, was an act wantonly done with a reckless or callous disregard of Bennett's rights. Further, on the morning after Bennett's arrest, Mitchell admitted to McGinnis that Spangler had convinced him to come to talk to McGinnis and then gave a "verbatim" rendition of Spangler's story. The very next morning, though, McGinnis received a written statement from Spangler indicating that Lowrey told Spangler that Lowrey and Bennett stole the computers. This statement conflicted drastically with the stories previously told orally to McGinnis by Spangler and Mitchell, that Spangler had seen Lowrey and Bennett steal the computers. The fact that McGinnis never alerted the police or the prosecutor or the courts to the existence of Spangler's handwritten statement constitutes additional evidence of actual malice and further support for a punitive damage award.

The Fourth Circuit has explained that "[a] person who places before a prosecuting officer information upon which criminal proceedings are begun, and who later acquires additional information casting doubt upon the accused's guilt, should be under an obligation to disclose his discovery to the prosecutor."Clarke v. Montgomery Ward Co., 298 F.2d 346, 348 (4th Cir. 1962). The Defendants contend that Spangler's subsequent written statement was not exculpatory in that it still implicated Bennett. However, the clear discrepancy between how Spangler allegedly came to know the information certainly "casts doubt" on Spangler's veracity. As the Court stated from the bench, Spangler's written statement "does cast doubt on [Bennett's] guilt because it is the version of the cardinal act that is radically at odds with what Mr. McGinnis reported, which apparently is what Mr. Spangler told him the first time. So it is a document that is in the possession of the defendants that impeaches, and in a material way, the very predicate for the action." Trial Tr. at 467:14-21. Relatedly, it was later learned that Spangler had not even worked the night of the theft — the night, according" to one version of Spangler's story, he saw Bennett steal the computers — so that information also "casts doubt" on Bennett's guilt in that an absent employee clearly cannot witness a theft at the workplace. Like the discrepancy in Spangler's stories, the important evidence was never given to the police, the prosecutors or the courts dealing with Bennett's charges.

The Defendants note that "the exculpatory evidence charge has been deleted from the current issue of the Virginia Model Jury Instructions." Post-Trial Mot. Hrg. Tr. at 52:2-7. The Defendants do not, however, purport to explain why the model instruction was removed. The Court knows of no changes in the prevailing law that would supplant the Clarke rule.

Therefore, the Defendants allowed the criminal prosecution of Bennett to continue despite unequivocally knowing that either the story Spangler relayed to McGinnis that McGinnis relayed to Lowrey and the police was false, or Spangler's handwritten statement was false, or both. Bennett's already untrustworthy accusers continued to contradict themselves, and Spangler, who initially indicated that he had seen Bennett stealing the computers, was ultimately shown not even to have been at work that night. Spangler's handwritten statement — effectively his fourth version of the story following three prior interviews with McGinnis — is fundamentally at odds with his and Mitchell's prior versions, and the Defendants failed to make any mention of it at any point during Bennett's criminal prosecution. At the very least, this was wilful and wanton conduct that is probative of the conscious disregard for Bennett's rights at the time he was arrested.

For all these reasons, therefore, there is a legally sufficient evidentiary basis for the jury's return of punitive damages. However, as a matter of law, the punitive damage award must be reduced to a total of $350,000. The Virginia Code provides as follows:

the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000. The jury shall not be advised of the limitation prescribed by this section. However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount provided by this section.

Va. Code Ann. § 8.01-38.1 (West 2010). Thus, while the Court will deny the Defendants' motion for entry of judgment as a matter of law in their favor, the Court will grant the Defendants' motion to reduce the total punitive damage award to $350,000, as will be explained in more detail herein.

II. The Defendants' Rule 59 Motion for a New Trial, or, Alternatively, for Remittitur

The Defendants also have moved, under Fed.R.Civ.P. 59, for a new trial or, alternatively, for remittitur. The granting or denial of a motion for a new trial under Rule 59(a) "is a matter resting in the sound discretion of the trial judge." Wadsworth v. Clindon, 846 F.2d 265, 266 (4th Cir. 1988) (citing Old Dominion Stevedoring Corp. v. Polskie Linie Oceaniczne, 386 F.2d 193 (4th Cir. 1967)). In reviewing such a motion, the Court may "weigh the evidence and consider the credibility of witnesses." Cline, supra, 144 F.3d at 301. The motion may be granted, "after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1)(A). Thus, a new trial will be granted if "(1) the verdict is against the clear weight of evidence, or (2) [the verdict] is based upon evidence which is false, or (3) [the verdict] will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict." Cline, supra, 144 F.3d at 301.

The first two facets of the Rule 59 review standard "encompass[] a comparison of the factual record and the verdict to determine their compatibility." Atlas Food, supra, 99 F.3d at 594. Hence, "jury determinations of factual matters such as liability on a cause of action [and] liability for compensatory and punitive damages . . . will be reviewed by determining whether the jury's verdict is against the weight of the evidence or based on evidence which is false."Id. On the other hand, the jury's determination of the amount of punitive damages "is not a factual determination about the degree of injury but is, rather, an almost unconstrained judgment or policy choice about the severity of the penalty to be imposed, given the jury's underlying factual determinations about the defendant's conduct." Id. Thus, "[b]ecause the factual record

provides no direct foundation for the amount of punitive damages, a review of the size of the jury's award best utilizes the third prong of the Rule 59 review standard — whether the jury's award will result in a miscarriage of justice." Id. (citing Defender Indus., Inc. v. Nw. Mut. Life Ins. Co., 938 F.2d 502, 507 (4th Cir. 1991)); see also Cline, supra, 144 F.3d at 306.

The Defendants challenge the jury's liability verdicts as to the malicious prosecution action, compensatory damages, and punitive damages, but do not contend that the jury's verdict was based upon evidence which was false. The Defendants also challenge the amount of the jury's compensatory and punitive damage awards. Finally, the Defendants contend that certain evidentiary decisions were "erroneous and prejudicial."

Indeed, the Court would find that the jury's verdict was not based upon false evidence.

A. Liability Verdict

The Defendants argue that the jury's determinations that the Defendants (1) lacked probable cause, (2) acted with malice, (3) were liable for compensatory damages, and (4) were liable for punitive damages were against the clear weight of the evidence. The Court will address the arguments in turn.

The Defendants also argue that the jury's finding that Bullard and Finley instituted or cooperated in the prosecution was against the great weight of the evidence, but, given the previous ruling granting Rule 50 relief to those defendants, it is not necessary to review that argument.

(1) Probable Cause

As previously discussed in detail herein, there was a legally sufficient evidentiary basis for a reasonable jury to find that the Defendants initiated Bennett's prosecution without probable cause. There is indeed strong factual support in the record — especially once the Court weighs the evidence — that probable cause did not exist at the time McGinnis indicated his desire to press charges against Bennett. In fact, the record, taken as a whole, supports the jury's finding on this element. Hence, the jury's verdict that probable cause did not exist is not against the clear weight of the evidence. The liability verdict does not warrant a new trial under Rule 59, and the Defendants' motion for a new trial with respect to this issue will be denied.

(2) Malice

The Defendants contend that the jury's finding of legal malice was against the great weight of the evidence. As discussed previously herein, there was an ample evidentiary basis on which a jury reasonably could find that the Defendants acted with legal malice. Weighing the evidence, there is strong factual support in the record, by permissible inference and otherwise, that the Defendants' motive was not a good faith desire to see justice done, to enforce the law, to suppress crime, or to punish the guilty, and thus the jury's verdict that legal malice did exist is not against the clear weight of the evidence. The liability verdict does not warrant a new trial under Rule 59, and the Defendants' motion for a new trial with respect to this issue will be denied.

(3) Compensatory Damages

The Defendants contend that the jury's return of compensatory damages was against the great weight of the evidence. Compensatory damages are those damages "allowed as a recompense for loss or injury actually received and include loss occurring to property, necessary expenses, insult, pain, mental suffering, injury to the reputation, and the like." Pigg, supra, 152 S.E.2d at 276. Weighing the evidence, there is strong factual support in the record that the Defendants caused the Plaintiff to suffer pecuniary and emotional injury. The jury's verdict that the Defendants were liable for compensatory damages is not against the clear weight of the evidence. The liability verdict does not warrant a new trial under Rule 59, and the Court will deny the Defendants' motion for a new trial with respect to this issue.

(4) Punitive Damages

The Defendants contend that the jury's return of punitive damages was against the great weight of the evidence. As discussed previously herein, there was a legally sufficient evidentiary basis for a reasonable jury to find that the Defendants were liable for punitive damages. Weighing the evidence, there is strong factual support in the record that the Defendants acted with actual malice such that a return of punitive damages is warranted. The jury's verdict that the Defendants were liable for punitive damages is not against the clear weight of the evidence. The punitive award liability verdict does not warrant a new trial under Rule 59, and the Court will deny the Defendants' motion for a new trial with respect to this issue.

B. Amount of Damages

(1) Amount of Compensatory Damages

In malicious prosecution actions, "the jury is regarded as the best and safest tribunal to determine the measure of damage."Pigg, supra, 152 S.E.2d at 276. In this case, the jury awarded Bennett $1,716,920 in compensatory damages. The award did not include an injury-specific monetary breakdown. Bennett adduced evidence at trial that he suffered pecuniary damages in the following amounts: (1) $7,019 in criminal defense legal fees; (2) $81,222.48 from a depleted retirement fund; (3) $28,000 from a depleted annuity account; (4) $142,100 in lost wages; and (5) $298,880 in future earnings. Bennett also put on non-pecuniary damage evidence, but he did not assign a dollar amount to such damages. It appears, therefore, that the jury returned the remaining $1,159,698 of the compensatory award for non-pecuniary damages.

Neither party requested a special verdict form that would have required the jury to specify particular award amounts attributed to particular injuries suffered. Indeed, they agreed to the form of the verdict. The jury returned a simple lump sum compensatory damages verdict of $1,716,920.

The parties improperly refer to a figure for lost future earnings of $332,800. This figure was erroneously derived by approximating Bennett's Social Security retirement age as sixty-seven and by approximating Bennett's age at the time of trial as fifty-four. As explained previously, Bennett testified that his Social Security retirement age is sixty-six years and two months. Upon the return of the verdict on December 2, 2009, Bennett, who was born on June 4, 1955 — a date known both to the jury and the Court from Bennett's criminal background check (Pl.'s Ex. 8, admitted into evidence, Trial Tr. at 220:6-12) — was 54 years, 5 months, and 29 days old. Thus, the lost future earnings period was not, as the parties approximated, 13 years, but was, instead, precisely 11 years, 8 months, and 3 days, or 11.675 years. Bennett's assumed gross income from R L over this 11.675-year period based on his pre-termination salary ($41,600 per year) would have been $485,680. The Plaintiff's assumed post-termination gross income ($8 per hour, 40 hours per week, 50 weeks per year) over the same 11.675-year period would be $186,800. The difference between these two figures (i.e., Bennett's lost future earnings) is $298,880.

The Supreme Court in Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996) addressed the appropriate standard under which a district court must evaluate a Rule 59(a) motion for a new trial based upon the alleged excessiveness of the jury's compensatory damage award. See Gasperini, supra, 518 U.S. at 438-39. The Supreme Court determined that, because the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), "precludes a recovery in federal court significantly larger than the recovery that would have been tolerated in state court," Gasperini, 518 U.S. at 430-31, a district court sitting in diversity must apply state law standards when it considers a Rule 59(a) motion for a new trial based upon the alleged excessiveness of the jury's compensatory damage award. See id. at 438-39; see also Konkel, supra, 165 F.3d at 280 (interpreting Gasperini).

The Court notes that subject matter jurisdiction properly existed in this case going into trial under both 28 U.S.C. § 1331 and § 1332. Given that the federal claim did not survive the trial, and that the damage award at issue relates to the state claim, the Court will analyze the award under the Virginia approach as if the Court sat purely in diversity. The result would not be different in this case, however, if the Court were to undertake the federal approach, as the compensatory damage verdict is not against the clear weight of evidence and will not result in a miscarriage of justice.

In Virginia, "if it appears that the verdict is so excessive as to shock the conscience of the court and to create the impression that the jury has been influenced by passion, corruption or prejudice, or has misconceived or misunderstood the facts or the law, or if the award is so out of proportion to the injuries suffered to suggest that it is not the product of a fair and impartial decision, then it becomes the plain duty of the judge, acting within his legal authority, to correct the injustice."Rutherford v. Zearfoss, 272 S.E.2d 225, 227-28 (Va. 1980) (quoting Smithney v. Refining Co., 122 S.E.2d 872, 876 (Va. 1961)). The analysis will address the various compensatory damage amounts in turn.

(a) Criminal Defense Legal Fees

Bennett introduced an invoice for legal services and costs related to his criminal defense for the underlying embezzlement charge in the amount of $7,019.18. The Defendants challenge the legal fee award as having not been shown to be reasonable, note that it was partially redacted, and suggest that it should be reduced to $2,626.69. The Defendants did not put on any evidence suggesting that it was not a fair representation of the expenses incurred by Bennett, and there is no reason to doubt the $7,019 figure as being reasonable and accurate. This award certainly does not shock the conscience. Nor does it demonstrate that it was influenced by passion, corruption, or prejudice, or that it was based on a misunderstanding of the facts or law. It is not disproportionate to the injuries suffered. Accordingly, an award of $7,019 for criminal defense legal fees and costs does not support the granting of a new trial.

(b) Retirement Fund and Annuity Account

As a result of having lost his job, and thus his income, Bennett was forced to deplete his retirement fund and his annuity account. The Defendants challenge the award of $81,222.48 for the retirement fund and $28,000 for the annuity account as being a "double recovery" because of the lost wage award and they suggest that both should be reduced to zero. This "double recovery" argument posits that Bennett's having recovered lost wages fully compensates him for the money spent from his savings accounts. Obviously, this argument fails. Were it not for his termination from R L, Bennett would have both the money in the now-depleted accounts and his lost wages. The Defendants did not put on any evidence that the $81,222.48 and $28,000 figures were not a fair

representation of the amount of funds in Bennett's accounts at the time of his termination. An award for these sums does not shock the conscience, does not demonstrate that it was influenced by passion, corruption, or prejudice, was not based on a misunderstanding of the facts or law, and is not disproportionate to the injuries suffered. Accordingly, awards of $81,222.48 for the retirement fund and $28,000 for the annuity account do not support the granting of a new trial.

(c) Lost Wages

The Defendants do not challenge the $142,100 lost wages award beyond the meritless "double recovery" argument, and there is no indication that this compensatory award was returned against the great weight of the evidence. The jury's finding of liability clearly justifies an award of lost wages, and the award made does not shock the conscience, does not demonstrate that it was influenced by passion, corruption, or prejudice, was not based on a misunderstanding of the facts or law, and is not disproportionate to the injuries suffered. Accordingly, the award of $142,100 in lost wages does not support the granting of a new trial.

(d) Lost Future Earnings

The Defendants challenge an award of $298,880 in lost future earnings for the remaining 11.675-year period before Bennett would retire and draw Social Security payments. The $298,880 figure derives from taking the $8.00 per hour salary that Bennett was earning at the time of trial and projecting it out for forty hours per week for fifty weeks per year for thirteen years and subtracting that from Bennett's pre-termination salary of $41,600 over the same 11.675-year period. In other words, the figure is the difference in the gross income that Bennett alleges he would have received at his Social Security retirement age of sixty-six and two months between his pre-termination salary and a post-termination salary wherein Bennett would obtain full-time employment at the same rate of pay he earned part-time at the time of the trial with two weeks of unpaid vacation per year.

See note 33, supra, pp. 74-75.

Virginia law "requires anticipated lost income to be proved with reasonable certainty." ITT Hartford Group, Inc. v. Va. Fin. Assocs., Inc., 520 S.E.2d 355, 360 (Va. 1999). "In order to form a reliable basis for a calculation of lost future income or loss of earning capacity, such evidence must be grounded upon facts specific to the individual whose loss is being calculated."Vascquez v. Mabini, 606 S.E.2d 809, 811 (Va. 2005). These "[d]amages need not be established with mathematical certainty." Nichols Constr. Corp. v. Va. Mach. Tool Co., LLC, 661 S.E.2d 467, 472 (Va. 2008). However, "[e]stimates of damages based entirely upon statistics and assumptions are too remote and speculative to meet [the reasonable certainty] test." Bulala v. Boyd, 389 S.E.2d 670, 677 (Va. 1990).

The lost future earnings damages awarded, though certainly not established to a mathematical certainty, were proven to a reasonable certainty and were grounded upon facts specific to Bennett. Virginia courts recognize that, "[o]rdinarily, the wages a person earned prior to an injury are an indicator of the person's income and earning capacity in the future." Hodges v. Norfolk So. Ry. Co., No. CL97-805, 2001 WL 34038119, at *1 (Va. Cir. Ct. Aug. 16, 2001). Thus, it is reasonable to use Bennett's pre-termination salary as an indicator of what his future income would have been but for his arrest and termination. Additionally, as the Supreme Court of the United States notes, because the length of the "lost stream" of future income "cannot be known with certainty" given that a worker could be disabled or killed at any time, "litigants frequently follow the relatively simple course of assuming that the worker would have continued to work up until a specific date certain." Jones Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 534 (1983). Here, that date certain was Bennett's Social Security retirement age of sixty-six and two months, and it is reasonable to use an 11.675-year lost future earnings period representing the time from the date of the trial until Bennett reached the age of sixty-six and two months.

Further, the jury heard that Bennett, before his termination from R L, earned $41,600 annually. Bennett had worked regularly for most of his life, but despite contacting approximately 100 prospective employers, Bennett had been unable to procure full-time employment in the more than three-and-one-half years between his termination and the date of the trial. He had, however, begun to earn $8 per hour, twenty hours per week, or $8,000 per year on a fifty-week annual work schedule. Therefore, given the length of time it took Bennett to obtain even part-time work notwithstanding his reasonable effort to find work, and given that Bennett will continue to have to report to each prospective employer that he was terminated by R L because he was accused of stealing from the company, Bennett proved with reasonable certainty that he will earn no more than $16,000 per year for the next 11.675 years. The field of work where he would stand to earn the most money based on his experience — freight — is likely the field in which he has the least likelihood of obtaining a job based on his termination for accused theft with R L.

Thus, the jury, using the evidence and its common sense, reasonably could have determined that Bennett suffered reasonably certain lost future wages in the amount of $298,880. The Defendants' arguments to the contrary are without merit, and the jury's award does not support the granting of a new trial.

The Defendants fail to cite any Virginia law on the subject and cite only federal authority analyzing federal statutes and cases with no factual similarities to the proof offered in this case.

(e) Non-pecuniary Damages

The Defendants challenge the non-pecuniary aspect of the compensatory damage award ($1,159,698) as shocking to the conscience and unsupported by the facts. The Defendants suggest that the non-pecuniary award should be reduced to $142,100, focusing their argument on Bennett's testimony that he is not aware of anyone who thinks less of him as a result of his arrest. As they must, the Defendants concede that damage to one's reputation is presumed in a malicious prosecution suit and that no special proof of harm is required, so the proper award is left in the discretion of the jury. However, the Defendants rightly assert that such discretion can be abused. And, they say, it was abused here. The Court disagrees.

A malicious prosecution plaintiff may recover non-pecuniary compensatory damages for "insult, pain, humiliation, mental suffering, injury to the reputation, and the like." Weatherford v. Birchett, 164 S.E. 535, 537 (Va. 1932). Even where a "verdict seems large, and is greater than [the Court] would have been willing to assess had [it] been on the jury," if the plaintiff is entitled to recover on his cause of action and the damages were "supported by abundant proof," the Court should not find the jury was actuated by passion, prejudice, or a mistaken view of the case. Id. In this case, $1,159,698 does indeed seem a large nonpecuniary damage award. However, abundant evidence existed to support the sum.

Bennett labored since his termination from R L to find fulltime employment, attempting both to start his own business and to work with one of around 100 prospective employers. His efforts failed, and despite ultimately obtaining part-time work with his brother, Bennett was forced to change his lifestyle significantly. He could no longer afford the apartment he had shared with his girlfriend and her daughter, and, as a man in his fifties, was forced to move in with his father after having lived on his own for over thirty years. It was reasonable for the jury to conclude that, as Bennett argued, that was a demoralizing and humiliating circumstance that had persisted for more than three years.

After the humiliation of being escorted by many of his coworkers eating lunch at R L in handcuffs, Bennett suffered the embarrassment of having to tell his family, friends, and perhaps most importantly, prospective employers that he was arrested and that his employment was terminated because he was accused of stealing. Because of his reduced financial stability and lack of employer-provided medical benefits, Bennett lives in fear of contracting an illness he will be unable to pay to combat. Unsurprisingly, he thinks daily about his arrest and worries that his financial situation may leave him without adequate food and shelter. His brothers described Bennett, once a happy and easygoing man, as having become quiet, secluded, devastated, and withdrawn from his family and others as a result of the arrest and prosecution. The Defendants offered no proof that Bennett did not suffer any of these non-pecuniary damages.

Even though Bennett is not personally aware of anyone who thinks less of him as a result of his arrest, the amount of non-pecuniary damages returned in Bennett's favor is appropriately significant. Reputational injury is only one component of the non-pecuniary damage inquiry, and the precise dollar figure to assign to Bennett's non-pecuniary damages was within the discretion of the jury. The jury saw that Bennett had been humiliated and demoralized both on the day of his arrest and for years thereafter, and wrongfully so. It saw that Bennett had endured mental suffering and distress, and needlessly so. It saw that his ability to provide for basic needs such as housing and insurance had been severely diminished, and, that his personal relationships had been seriously altered as a consequence of the wrong done by the Defendants. On this record, an award of $1,159,698 (which is only two times Bennett's proved pecuniary damages) is not so excessive that it shocks the conscience, does not demonstrate that it was influenced by passion, corruption, or prejudice, was not based on a misunderstanding of the facts or law, and is not disproportionate to the injuries suffered. Again, the Defendants' arguments to the

contrary are without merit. Accordingly, the non-pecuniary damage award does not support the granting of a new trial.

The Defendants cite Fourth Circuit cases discussing: (1) statutory emotional distress damages under the Privacy Act (Doe v. Chao, 306 F.3d 170 (4th Cir. 2002)); (2) humiliation and mental distress damages under the Fair Credit Reporting Act(Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495 (4th Cir. 2007)); and (3) emotional distress damages under § 1983 of the Civil Rights Act (Price v. City of Charlotte, N.C., 93 F.3d 1241 (4th Cir. 1996)). None of these cases is controlling or persuasive on the issues presented in this case.

(f) Amount of Compensatory Damages Conclusion

Neither party requested a special verdict form; so the jury returned a lump sum compensatory damages verdict of $1,716,920. But, as the foregoing discussion establishes, the jury reasonably could have returned awards in the amounts described as to each particular injury that Bennett claimed. In other words, sufficient evidence existed such that the assumed individualized amounts are themselves legally supportable, and, together, the awards of compensatory damages in the amounts discussed do not shock the conscience, do not demonstrate that the verdict was influenced by passion, corruption, or prejudice, were not based on a misunderstanding of the facts or law, and were not disproportionate to the injuries suffered. Further, the verdict did not establish that the jury included in its damages anything not awardable in Virginia for malicious prosecution. Therefore, cumulatively, the jury's compensatory damages award of $1,716,920 does not support the granting of a new trial.

(2) Amount of Punitive Damages

In the case at bar, the jury awarded Bennett punitive damages in the amount of $1,500,000 against R L, $3,000 against Finley, $15,000 against Bullard, and $30,000 against McGinnis. Preliminarily, given that Finley and Bullard were not liable for malicious prosecution as a matter of law, no punitive damage verdict may be sustained against them, and the Court will alter the judgment accordingly. As discussed above, however, there was a legally sufficient evidentiary basis for the jury's return of punitive damages against R L and McGinnis, and the award made was not factually against the clear weight of the evidence. Thus, at issue is whether the amount of the punitive damage awards against R L and McGinnis warrant the granting of a new trial. As previously explained, the jury's determination of the amount of punitive damages is not a factual determination about the degree of injury, so the Court will review the size of the jury's punitive damage award under the third facet of the Rule 59 review standard — whether the jury's award will result in a miscarriage of justice. See Atlas Food, supra, 99 F.3d at 594.

Additionally, "[a]bsent any constitutional challenge to the amount of a jury's punitive damage award, a federal district court reviews such an award by applying the state's substantive law of punitive damages under standards imposed by federal procedural law." Id. at 593 (internal citation omitted). The Defendants have asserted no constitutional challenges here, so the task is to "determine whether the jury's verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered." Id. Thus, the Court must: (1) determine if the jury's punitive damages verdict in this case is within the confines of Virginia law; and (2) determine whether the verdict will result in a miscarriage of justice under Rule 59.

In their oral motion made immediately after the return of the verdict, the Defendants made the conclusory assertion that the verdict was unconstitutional. Trial Tr. at 702:12-13. However, in their written motion and in oral argument, the Defendants never pursued that assertion.

(a) Analysis Under Virginia Law

In Virginia, judicial review of the amount of punitive damages requires: (1) consideration of reasonableness between the damages sustained and the amount of the award; (2) the measurement of punishment required; (3) whether the award will amount to a double recovery; (4) the proportionality between the compensatory and punitive damages; and (5) the ability of the defendant to pay. Baldwin v. McConnell, 643 S.E.2d 703, 707 (Va. 2007). "The general rule is that there is no fixed standard for the measure of exemplary or punitive damages and the amount of the award is largely a matter within the discretion of the jury." Id.

Here the punitive damages are reasonable in light of the wrongful conduct engaged in by the Defendants and in consideration of the damages they inflicted on Bennett. The amounts returned against R L and McGinnis represented highly-reasoned calculations to punish based on demonstrated culpability and net worth. The parties stipulated that R L's net worth was $17,492,313 and that McGinnis's net worth was $150,000. Trial Tr. at 668:3-13. The punitive damage award of $1,500,000 as to R L represents a verdict that is 8.58% of the company's net worth. The punitive damage award of $30,000 as to McGinnis represents a verdict that is 20% of his net worth. These figures represent an appropriate measurement of punishment under the circumstances. The award will not amount to a double recovery, and the total punitive award of $1,548,000 (which included awards against Finley and Bullard totaling $18,000) is highly proportional to the total compensatory award of $1,716,920, as the punitive award amounts to 90.16% of the compensatory award. Finally, both R L and McGinnis have the ability to pay the full amounts returned against them given that both amounts were well under their respective net worths; however, neither will have to pay the full amount.

In closing argument, Bennett's counsel suggested the rather modest approach of assessing punitive damages of no more than five to ten percent of the Defendants' net worth when addressing the Defendants' ability to pay and considering the nature of the Defendants' actions. Trial Tr. at 668:16-21.

The award against Bullard represented 15% of his $100,000 net worth, and the award against Finley represented 10% of his $30,000 net worth. Clearly, therefore, the jury believed McGinnis to be most culpable, followed in incremented succession by Bullard, then Finley, and finally R L.

As explained previously, the Virginia Code requires that the total amount awarded for punitive damages be reduced to $350,000. See Va. Code Ann. § 8.01-38.1 (West 2010). The total punitive damage award without the awards against Bullard and Finley equals $1,530,000. The Virginia statutory cap of $350,000 represents a sum that is 22.88% of the $1,530,000 punitive total. Thus, the Court will reduce proportionally the punitive awards with respect to R L and McGinnis to comport with the cap as follows: $343,137.25 against R L and $6,862.75 against McGinnis. These reduced awards represent 1.96% and 4.56% of R L's and McGinnis's net worth, respectively. As reduced (indeed before the reduction), the jury's punitive damages verdict is within the confines of Virginia law.

The more precise figure is 22.875816993464052%, but the Court will refer to this figure as "22.88%" for the sake of brevity.

22.88% of the $1,500,000 punitive damage award returned against R L equals $343,137.25.

22.88% of the $30,000 punitive damage award returned against McGinnis equals $6,862.75.

(b) Analysis Under Rule 59

Having found that the punitive damages verdict comports with Virginia law, the Court must next determine whether the verdict will result in a miscarriage of justice under Rule 59. "The miscarriage-of-justice standard recognizes the hybrid nature of punitive damage awards" in that "some considerations underlying the amount of a punitive damage award may be factual . . . and, therefore, would be well suited to the jury's role of finding facts," while "other policy-related elements. . . . are not factual questions and, therefore, are more appropriately decided by the trial judge." Atlas Food, supra, 99 F.3d at 594. Thus, "[t]he judge's unique vantage point and day-to-day experience with such matters lend expertise and consistency." Id. The Fourth Circuit has explained that

punitive damage determinations involve a partnership between a jury and trial judge, each with a comparative institutional advantage, in which the judge inevitably enjoys the final word. While a district court must give due respect to a jury's comparative advantages in initially deciding upon the amount of punitive damages to award, the court may depart from that award to the extent that it concludes that its own comparative advantages warrant such a departure. Accordingly, we conclude that while a jury is authorized to award punitive damages on a framework of liability and the factors supplied by state law, the judgment a jury makes as to the amount is reviewable by federal trial courts under Federal Rule of Civil Procedure 59 less deferentially than are factual findings which may be measured against the factual record. The court's review of the amount of a punitive damages award should involve comparison of the court's independent judgment on the appropriate amount with the jury's award to determine whether the jury's award is so excessive as to work an injustice.

Id. Applying the foregoing principles, the Court concludes that the jury's punitive damage award was not so excessive as to work an injustice. The facts and circumstances of this case, along with policy-related considerations, warranted a return of punitive damages. The jury's punitive award neither creates a miscarriage of justice nor offends any notion of fairness or justice. Hence, granting of a new trial is not justified.

Indeed, the rush to judgment and the decisions to press an arrest on the uncorroborated evidence given by known liars, and the withholding of exonerating evidence from the police and the state court all support the imposition of punishment. And, the award also serves a deterrent purpose. Perhaps, in the future R L and McGinnis will not be so quick to close a case, and perhaps they might fairly, objectively and fully conduct an investigation before having someone arrested. In other words, the punitive award should also deter wrongful conduct on future theft investigations at R L. And, if after checking for corrobative evidence, they determine that the word of a witness is confirmed to be of no value, they perhaps will refrain from pressing charges. And, if they do press charges and then, shortly thereafter, come across exonerating evidence, they will share it with the police and the courts.

This case clearly involved a miscarriage of justice but not the one of which the Defendants complain. The miscarriage, in fact, was visited on Clyde Bennett. The record shows clearly the miscarriage reflected in the jury's verdicts. Counsel for the Defendants expressed profound, numbing shock when the verdict was returned. That may be how the defendants and counsel felt. But, that reflects that they were (and remain) tone deaf to the wrongs proved by the record and to the damage those wrongs visited upon Clyde Bennett. This record shows beyond question that the verdict of the jury visited no miscarriage of justice on the Defendants.

For all the foregoing reasons, the Defendants' motion for a new trial as to this issue, will be denied but the punitive awards against R L and McGinnis will be reduced to $343,137.25 and $6,862.75, respectively, to comport with Virginia's statutory cap.

B. Evidentiary Rulings

The Defendants argue that the Court should order a new trial because it: (1) precluded Hoy from testifying as to her opinion related to probable cause and intent to prosecute Bennett in the future; (2) limited the use of the purported statements by Mr. and Mrs. Spangler to McGinnis to be considered only as to McGinnis's state of mind on the issue of malice; and (3) allowed Wayne Spratley (another dockworker) to testify that Lowrey had told him Lowrey planned to steal the computers. It is well-established that errors in the admission or rejection of evidence may be grounds for a new trial. See Montgomery Ward Co. v. Duncan, 311 U.S. 243, 251 (1940). However, Fed.R.Civ.P. 61 provides that "no error in admitting or excluding evidence . . . is ground for granting a new trial" unless the error "affect[s] a[] party's substantial rights." Fed.R.Civ.P. 61; see Ingram Coal Co. v. Mower, L.P., 892 F.2d 363, 366 (4th Cir. 1989) ("[A] court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."). Thus, it is only errors that cause substantial harm to the moving party that justify a new trial, and errors that are not prejudicial do not necessitate a new trial. Each evidentiary ruling will be addressed in turn.

(1) Melissa Hoy's Testimony

The Defendants argue that the decision to prohibit Assistant Commonwealth's Attorney Melissa Hoy from testifying about the basis for prosecuting Bennett and her future intention to prosecute Bennet was erroneous and prejudicial. Specifically, the Defendants argue that the Court improperly discounted the significance of Hoy's decision that probable cause existed, asserting that such evidence is viewed as proper in Virginia courts and the Fourth Circuit. The Defendants believe that the limitation resulted in an unfair imbalance in the eyes of the jury because it allowed an inference that there was no basis to the charge at the time of arrest and no grounds for continuing prosecution after arrest. In support of this position, the Defendants cite Brodie, supra, Trammel, supra, and Goodwin v. Metts, 885 F.2d 157 (4th Cir. 1989).

As explained previously, counsel for the Defendants agreed at trial that Melissa Hoy could not testify as to her opinion that probable cause existed to arrest Bennett. Trial Tr. at 50:20-51:17 (Melissa Hoy "[c]an't give opinions, I agree with that."). Additionally, as explained previously, the Defendants improperly

cite Brodie, supra. Also, Trammel and Goodwin are simply cases wherein a court admitted a government prosecutor's testimony. Neither holds, nor even hints, that such testimony must be admitted, or that the exclusion of such evidence is prejudicial error.

Further, district courts are charged with "prevent[ing] jurors from giving undue weight to . . . lay [opinion] testimony."United States v. Baptiste, 596 F.3d 214, 225 (4th Cir. 2010). Here, the Defendants had not designated Melissa Hoy as an "expert," yet her expertise is making probable cause determinations and prosecuting crimes. The likelihood of juror confusion and prejudice far outweighed the probative value of the testimony, and it is within the Court's discretion to admit evidence following an appropriate Rule 403 balancing. This balancing favored the testimony's exclusion, and the Court finds no error in precluding the prosecutor's testimony under the circumstances. The emphasis in Westreich and supporting cases is on the pertinency of grand jury and magistrate findings, not prosecutor findings. To the extent that Trammell and Goodwin are cases wherein a government prosecutor testified as to her probable cause determination, neither discusses the proper admissibility of such testimony, much less holds that the testimony is controlling evidence of the existence of probable cause.

Finally, the fact that Hoy apparently still intends to prosecute Bennett if Lowrey is located is irrelevant to the "termination" element of a malicious prosecution suit, for, as explained previously, Virginia recognizes that a nolle prosse terminates that proceeding in a manner not unfavorable to the Plaintiff past recall. Accordingly, the Court's having limited Hoy's testimony was not error and does not warrant the granting of a new trial.

Even if the limitations were error, the Court would find that the rulings did not prejudice the Defendants' substantial rights such that a new trial still would not be warranted. And, given the evidence that this trial produced, it is inconceivable that a prosecutor would continue to press the case against Bennett for no reasonable jury would convict if given all the information that came to light here.

(2) McGinnis's Conversations with the Spanglers

The Defendants contend that, in limiting the use of the purported statements made by Mr. and Mrs. Spangler to McGinnis related to Mr. Spangler's having allegedly seen Bennett and Lowrey stealing the computers, the Court acted erroneously and prejudicially. The Court instructed the jury that the testimony was hearsay and could be considered only as to McGinnis's state of mind on the issue of malice. The Defendants contend that it should also have been admissible as to the issue of probable cause.

The Defendants also argue that the testimony is not hearsay because McGinnis was "recounting portions of his report" that was admitted into evidence. Defs.' Mem. Supp. at 28. The Court rejects that argument outright, however, as McGinnis was clearly testifying as to his memory of the relevant events, not the contents of his report.

A new trial motion based on either an improper instruction to the jury or the alleged improper exclusion of testimony from the jury's consideration requires a proper objection at trial. 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE §§ 59.13[2][b][i][E], 59.13[2][b][i][B] (3d ed. Lexis 2010). In this case, at trial, counsel for the Defendants specifically said that both Mrs. Spangler's statements and Mr. Spangler's statements were "hearsay," Trial Tr. at 390:18-22. Further, counsel said explicitly that he was offering the testimony "as far as the malice and state of mind is concerned as to what they did and why they did it." Trial Tr. at 390:7-14. In other words, as the Court explained, the Defendants offered McGinnis's testimony related to the Spanglers' statements to "show [McGinnis's] state of mind and whether he was operating with malice or not." Trial Tr. 392:6-10. The Defendants did not object to the limiting instruction given to the jury at the time; indeed, the Court gave the Defendants the ruling they requested. Accordingly, the Court's limitation was not error, and the ruling did not prejudice the Defendants' substantial rights. Therefore, the Court will deny the Defendants' motion for a new trial with respect to this issue.

(3) Spratley's Testimony

At trial, Wayne Spratley testified that Lowrey "rode up to [him] . . . on the fork lift and said there were some computers he was going to take." Trial Tr. at 189:13-15. Spratley testified that he then "kind of looked at [Lowrey] and said, how are you [g]oing to do that?," to which Lowrey responded, "I am going to take them right out the front door. It is Friday, and Friday [there] is only like one supervisor there." Trial Tr. at 189:15-19. Lowrey then intimated to Spratley that "basically, Clyde [Bennett] would be too busy to watch him" take the computers "out the front door." Trial Tr. at 189:19-21. Spratley never told anyone of this conversation because he did not believe Lowrey. Trial Tr. at 189:25 — 190:9.

The Defendant objected to this testimony as impermissible hearsay. Bennett's counsel apparently agreeing that the testimony was hearsay, argued that the statement was not being offered for the truth of the matter asserted but was, instead, being offered for "a non-hearsay purpose to show the lack of a quality investigation and to show a lack of reliability that a reasonable person would find based on the information to be supplied, in part, as a result of the answer to this question." Trial Tr. at 178:6-179:1. Essentially, Bennett's theory was that R L easily could have identified and interviewed all of the dock workers in the four days that McGinnis was in Richmond and that failure to do so illustrates an improper rush to judgment. Trial Tr. at 182:18-183:2. In other words, Bennett contended that the evidence was admissible to show malice (a motive other than a good faith desire to see justice done, to enforce the law, to suppress crime, or to punish the guilty) and as bearing on punitive damages (as illustrating the callous and reckless disregard of Bennett's rights).

The Court, overruled the objection and allowed the testimony, but then offered to the jury the following limiting instruction:

Ladies and gentlemen, that testimony is admissible for one purpose only. Not for whether it is true that Mr. Lowrey intended to take the computers, or that Mr. Bennett, whom I believe the witness referred to as "Clyde," was too busy to notice. But it is offered — it is being offered for the purpose for your consideration in assessing whether an investigation that did not talk to the dock workers, such as Mr. Spratley, was one in which a reasonable person could have relied in making the decision that R L made.

Trial Tr. at 190:11-22. The Court then asked counsel if they desired "[a]ny other further . . . limiting instructions," and defense counsel said, "No, sir." Trial Tr. at 190:23-191:2.

The only further reference to Spratley was in Bennett's closing argument when counsel said:

He [McGinnis] certainly could have taken the time to spend five minutes just touching base with each one of these other fellows [dock workers] and found Wayne Spratley. He didn't. Really not caring about justice. This case reeks of malice.

Trial Tr. 536:1-4. And that was merely a small part of Bennett's counsel's closing on the rush to judgment and how it was evidence of malice.

This issue was not raised in the Defendants' motion for a new trial. Instead, they presented it for the first time in their reply brief. The argument, therefore, is rejected as untimely.

Even if it had been timely raised, it is substantively without merit for two reasons. First, the evidence was admissible for non-hearsay purposes. It was probative of whether the Defendants engaged in a rush to judgment to convict someone (or as Bennett contended any one) and thus acted with a purpose other than to see the guilty prosecuted. It also was probative on the issue of punitive damages: whether, in their rush to judgment, the Defendants were callous and reckless in their regard for Bennett's rights in having arrested him without even looking for corroborative evidence to support the evidence given by the liars.

In retrospect, the limiting instruction could have stated those limited purposes more clearly. However, when offered the opportunity to tender any revision to it, counsel declined to do so. They cannot be heard to complain now that the instruction was inadequate.

Nonetheless, the Defendants did object to the admissibility of the evidence arguing that the determination of probable cause must be judged by what the Defendants knew when they had Bennett arrested. Of course, that is precisely what the jury was told in the final charge. (See J.I. 25, note 13, supra at p. 34). Neither at the conference on instructions nor when given the opportunity after the instructions were given did the Defendants ask for a revision of the limiting instruction or argue, as they do in their reply brief, that the unrevised limiting instruction was confusingly at odds with the admittedly correct instruction on probable cause (J.I. 25). If they truly thought that was so, the Defendants should have sought a revised limiting instruction at the final charge conference or when given the opportunity after the jury was instructed, to ask for additional instructions or object to the instructions as given. It is too late now to raise the argument.

At oral argument on the post-trial motions, counsel for the Defendants, Mr. Murov, addressed that forfeiture by saying "I don't know how you can object to it after it is given." Of course, that is done by lodging an objection to the given instruction or by asking for a revised instruction when given the chance to do so. In this Court, those offers are always made, and it is not unusual for counsel to lodge an objection or to ask for revisions. And, of course, a revised instruction could have been requested at the final charge conference.

Finally, even if admitting Spratley's testimony was erroneous, the error was clearly harmless. Rule 61 provides that no error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. See Fed.R.Civ.P. 61. In interpreting Rule 61, the Fourth Circuit has explained that "[t]he doctrine of harmless error expressed in Rule 61 is applicable to errors in instructions to the jury, and whether such errors are harmless or prejudicial depends upon whether substantial rights of a party are affected thereby."Smith v. Jefferson Cnty. Chamber of Commerce, Inc., 885 F.2d 866, No. 88-1765, table op. at 1 (4th Cir. Sept. 14, 1989) (quoting 7 J. MOORE, J. LUCAS, MOORE'S FEDERAL PRACTICE, ¶ 61.09, pp. 61-32-61-34)).

The objection made when the evidence was admitted and belatedly in the Rule 59 motion is based on the assumption that Spratley's testimony was admitted on the issue of probable cause. The assertion is that the limiting instruction had the effect of mischaracterizing the element of probable cause. Even if the limiting instruction could be so construed (which it cannot given its text and the way Spratley's testimony was used in Bennett's closing argument), the undeniable fact is that the proper instruction was given on probable cause. It is axiomatic that "instructions must be read as a whole, and a defect in one instruction may be cured by other instructions." 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2886 (2d ed. West 2010). Any error in the Court's oral limiting instruction to the jury was corrected beyond question in the Court's subsequent oral and written instructions to the jury related to the elements of the malicious prosecution claim. The jury properly considered these instructions and returned a reasoned verdict against the Defendants. Hence, any error was harmless and does not warrant a new trial under Rule 59. Accordingly, the Court will deny the Defendants' motion for a new trial with respect to this issue.

CONCLUSION

For the foregoing reasons, the DEFENDANTS' RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL (Docket Nos. 114 and 115) will be denied with respect to McGinnis and R L; will be granted with respect to Finley and Bullard and judgment entered as a matter of law in their favor; and (3) will be denied with respect to the motion for a new trial, but with the punitive damages award remitted to comport with Virginia's statutory cap.

It is so ORDERED.

Richmond, Virginia

Date: September 30, 2010