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Baker v. National State Bank6/21/2002
n from each plaintiff's respective date of re-employment to the date of the verdict. Instead, front pay should begin from the date of the verdict to retirement. Blum v. Witco Chem. Corp., 829 F.2d 367, 374 (3d Cir. 1987). Thus, plaintiffs maintain that they should have been awarded substantially more in front pay to compensate them for their decreased salaries following their terminations, approximately $67,8728 for Baker and approximately $96,384 for Hausleiter.
Even though the trial court erred in its formulation of front pay, plaintiffs are not entitled to consideration of a higher front pay figure, for purposes of the ratio. Plaintiffs did not raise that issue in the first appeal as this court's unabridged opinion, in its discussion of front pay, mentions only that defendants argued that the trial court had erred on that issue. Baker, supra, No. A-488-96T5 at 38. Therefore, plaintiffs have waived the right to raise the issue in this appeal. Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.) (holding that an issue not briefed is deemed waived), certif. denied, 169 N.J. 606 (2001). Furthermore, it would be unfair to allow plaintiffs to raise the issue at this time simply because they find it expedient for purposes of this appeal but not the prior appeal, to argue the matter of front pay. Plaintiffs had the opportunity to raise this issue during the first appeal and chose not to do so.
Plaintiffs also argue that they could have suffered even greater compensatory damages but that they mitigated the effects of their terminations by persistently seeking re- employment. They point to the Supreme Court's statement that a reasonable relationship must exist between the punitive damages award and "the harm likely to result from the defendant's conduct as well as the harm that actually has occurred." BMW, supra, 517 U.S. at 581, 116 S. Ct. at 1602, 134 L. Ed. 2d at 830 (emphasis added).
Plaintiff's argument is unpersuasive for two reasons: (1) they had a legal duty to mitigate their damages; and (2) the Supreme Court's statement was made in contemplation of situations where the tortious plan was unsuccessful. See TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 460, 113 S. Ct. 2711, 2721, 125 L. Ed. 2d 366, 381 (1993) (stating that it is "appropriate to consider the magnitude of the potential harm that the defendant's conduct would have caused to its intended victim if the wrongful plan had succeeded"). Since the Bank was successful in its tortious conduct through its termination of plaintiffs, the magnitude of potential harm is moot.
As for the issue of attorney fees, there is no reason to consider attorney fees to be part of compensatory damages. LAD specifically includes attorney fees under a separate section, N.J.S.A. 10:5-27.1, indicating that it is an award in addition to compensatory damages. Traditionally, an award of attorney fees is not considered to be compensatory, but provided, as a policy matter in specific types of cases, to remedy the problem of unequal access to the courts. Rendine v. Pantzer, 141 N.J. 292, 322-23 (1995). In sum, the amount of compensatory damages consists of plaintiffs' awards for back pay, front pay (as awarded by the jury), pain and suffering, and prejudgment interest. That amount equals $283,324 ($155,089 for Baker and $128,235 for Hausleiter). The ratio of unremitted punitive damages ($4 million) to compensatory damages is roughly fourteen to one; the ratio of remitted punitive damages ($1.8 million) to compensatory damages is approximately six to one.
The Bank argues that other civil penalties did not give it fair notice of the remitted punitive damages award. Plaintiffs argue that the Bank had fair
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