Retaliatory Discharge - Error Preservation - Future Earnings - Mental Anguish - Waiver of Evidentiary Objections - Punitive Damages


Merchants FoodService v. Denny Rice, [Ms. 1170282, Mar. 1, 2019] __ So. 3d __ (Ala. 2019). The Court (Mendheim, J.; Parker, C.J., Wise, Bryan, Stewart, JJ., concur; Bolin, Sellers, and Mitchell, JJ., concur in the result) affirms a judgment on a jury verdict for $314,000 in compensatory damages and $944,000 in punitive damages on a retaliatory discharge claim against Merchants FoodService (“Merchants”).

The Court rejected Merchants’ challenge to the future earnings award holding “the authorities are clear that the fact that a plaintiff earns more annually in a job following a wrongful termination does not preclude, as a matter of law, a recovery for lost future earnings, ....” Ms. *41.

The Court rejected Merchants’ other challenges to the compensatory damages award noting that it “waived any issues concerning the sufficiency of the evidence in the trial court [by failing to move for judgment as a matter of law at the close of all the evidence], which includes arguments about the speculative nature of lost future earnings and weak evidence of stigma and mental anguish.” Ms. *42.

The Court rejected Merchants’ argument that reversal of the compensatory damages award was required in light of Kmart Corp. v. Kyles, 723 So. 2d 572, 578 (Ala. 1998). The Court held that “as Kyles and its progeny make clear, ‘direct evidence’ of mental anguish means testimony from the plaintiff about the degree of mental suffering.” Ms. *52. The Court noted that “[i]n this case, Rice testified to experiencing shock from the sudden and unexpected termination of his employment; frequent sleepless nights during his unemployment and occasionally after finding a job, a lot of anxiety about what he was going to do, embarrassment, irritability, loss of trust towards his fiancee, her two children, and others ....” Ms. *53.

Merchants filed a motion in limine to preclude its former employee Nims from testifying concerning his termination. Ms. *56. However, when his video deposition was introduced at trial, it failed to renew its objections. Ibid. Merchants did not preserve its objection to the admission of Nims’ testimony because “an appellant who suffers an adverse ruling on a motion to exclude evidence, made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence and assigns specific grounds therefor at the time of the trial, unless he has obtained express acquiescence of the trial court that subsequent objections to evidence when it is proffered at trial an assignment of grounds therefor are not necessary.’” Ms. *57, quoting Ex parte Jackson, 33 So. 3d 1279, 1283 (Ala. 2009)(some internal quotation marks omitted).

The Court further observed that reversal of the judgment was not warranted because Nims’ testimony was offered on intent, not punitive damages. Ms. *59. The Court also noted that Merchants had requested and received a limiting instruction that Nims’ testimony was admitted only on the issue of Merchants’ intent. Ms. *60.

Finally, in rejecting Merchants’ request for reduction of the punitive-damage verdict, the Court held that in regard to reprehensibility, Merchants terminated Rice’s employment when he was in a vulnerable position having just come off of an extended period of reduced pay as a result of an on-the-job injury. Ms. *64. The Court held that the ratio of three-to-one between the compensatory and punitive award cut against Merchants’ request for reduction.

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