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Maiorino v. Schering-Plough Corp.6/25/1997
The opinion of the court was delivered by
MICHELS, P.J.A.D.
Defendants Schering-Plough Corporation (Schering), James Reed (Reed), Ronald Martino (Martino), and Jerome A. Sherman (Sherman) appeal (1) from a judgment of the Law Division entered on a jury verdict that awarded plaintiff Ferdinand C. Maiorino (Maiorino) (a) compensatory damages in the total amount of $435,000, consisting of $180,000 for back pay, $200,000 for front pay, and $55,000 for pain, suffering, and humiliation, and (b) punitive damages in the amount of $8,000,000 against Schering; (2) from an award of attorneys' fees and costs totalling $396,989.35; and (3) from a post-judgment order that denied their motions for judgment notwithstanding the verdict, a new trial, or a remittitur in this age discrimination suit brought pursuant to the provisions of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. Maiorino cross-appeals from that portion of the judgment that awarded him attorneys' fees and costs totalling $396,989.35, contending that the trial court should have applied a contingency fee enhancer to the lodestar to increase his award of attorneys' fees.
The proofs at trial established that Schering is a manufacturer of pharmaceutical products with a net worth of approximately $1,820,800,000 and an annualized 1994 net income of $987,800,000. Reed was Schering's District Sales Manager of the South Jersey District from 1987 through July 1991, and supervised Maiorino. Martino was Schering's Mid-Atlantic Regional Director from 1987 through December 1990, and was Reed's supervisor. Sherman replaced Martino as Schering's Mid-Atlantic Regional Director in January 1991.
Maiorino, who was born on February 18, 1928, began working for Schering in March 1956. Although he had various titles, Maiorino was essentially always a sales representative, which required him to sell Schering's products to physicians, pharmacists, and hospitals. In his performance reviews from 1956 through 1987, Maiorino was rated between satisfactory and very good. During that period he was never warned about his attendance, placed on probation, or suspended.
In September 1987, Reed evaluated Maiorino's performance for 1985 and 1986. Schering's performance evaluation had seven possible rankings: O - Outstanding; V - Very Good; G - Good; I Improvement Needed; U - Unsatisfactory; and N - Not Rated. An "Outstanding" rating indicated that "performance is exceptional in all areas and is easily recognizable as being far superior to others." "Very Good" meant that "results clearly exceed most position requirements. Performance is of a high quality and is achieved on a consistent basis." "Good" denoted a "competent and dependable level of performance. Meets all performance standards of the job." "Improvement Needed" indicated that the "incumbent meets minimal job standards, however, some improvement is desirable." "Unsatisfactory" demonstrated that "results are generally unacceptable and require immediate improvement. No salary increase should be granted to individuals with this rating, and a written action plan must be prepared by the unit manager and forwarded to personnel." "Not Rated" signified that the particular criteria was "not applicable or too soon to rate."
Based on sales performance and standard subjective sales skills, Reed rated Maiorino's 1985 and 1986 performance "Good." For the period, Maiorino ranked ninth in the district in the sale of prescription drugs and fifth in the district in the sale of over-the-counter medicines. His composite rank was tenth. The record, however, does not reflect the total number of salespersons against whom Maiorino was compared. In eight of the subjective
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