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Tillman v. Advanced Public Safety, Inc.

United States District Court, S.D. Florida

May 1, 2018

KIM PETER TILLMAN, Plaintiff,
v.
ADVANCED PUBLIC SAFETY, INC., and TRIMBLE, INC., Defendants.

          OPINION AND ORDER ON PLAINTIFF'S MOTION FOR AWARD OF FUTURE DAMAGES BASED UPON JURY'S VERDICT OF LIABILITY

          KENNETH A. MARRA, UNITED STATES DISTRICT JUDGE

         This cause is before the Court upon Plaintiff's Motion for Award of Future Damages Based Upon Jury's Verdict of Liability [DE 258]. The motion is ripe for the Court's consideration. The Court has reviewed all papers submitted in connection with the motion, the entire file, and is otherwise duly advised in the premises.

         Procedural Background

         Preliminarily, the Court will address a procedural issue that has arisen in connection with the instant motion. Defendants have requested an evidentiary hearing in connection with Plaintiff's motion. They argue that there is evidence relevant to Plaintiff's front pay claim that was not relevant during the trial, and they want to present testimony and/or evidence through affidavits. [DE 263 at 10].

         Plaintiff opposes this request, noting that a stipulation was entered into on this issue at the time of trial. [DE 269 at 11]. At a sidebar with the Court, counsel for Defendants stated that she would have no cross-examination of Mr. Moe. [1/29/18 Trial Testimony at 13:4-14:24, DE 259]. It was agreed that the evidence of future damages would be done by written submission. [Id.]. Plaintiff states that he would not have agreed to the stipulation if Defendants had disclosed that they intended to seek the ability to present new evidence that was never disclosed before trial. [DE 259 at 11-12].

         Defendants have presented no explanation for their change in position. Having voluntarily entered into the stipulation at trial, and apparently having not disclosed any such additional evidence prior to trial, the Court denies Defendants' request for a hearing or oral argument.

         Defendants have presented various factual arguments in opposition to the motion that have no support in the record before the Court. Nothing has been submitted other than statements of their attorneys, which do not constitute evidence. By way of example, Defendants argue that after Trimble was sold to Aptean, the compensation plans were changed. Defendants criticize Plaintiff's expert for not taking this into account in his calculations, while at the same time acknowledging that they did not present this testimony during the trial. In rendering its decision herein, the Court has not taken into account any purported evidence submitted by Defendants solely via their attorney's statements.

         Legal Standard

         Having obtained a verdict against Defendants under the Florida Whistleblower Act [DE 241], Plaintiff is entitled to recover his future economic damages. “[F]ront pay is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001).[1] Front pay is an issue for the Court to decide after the jury returns a verdict. Austrum v. Fed. Cleaning Contractors, Inc., 14-cv-81245-KAM, 2016 WL 3526130, at *3 (S.D. Fla. June 23, 2016).

         Positions of the Parties

         The parties both state that reinstatement is not the appropriate remedy here, and the Court agrees. [DE 258 at 1-2, DE 263 at 2]. Defendants, however, also argue that front pay is inappropriate. [DE 263 at 3].

         Plaintiff has submitted a calculation of his future economic damages by his expert witness, Roderick Moe, CPA. [DE 258-2]. Mr. Moe calculates Plaintiff's future damages as totaling $517, 375, which he opines is the difference in wages and benefits that he projects Mr. Tillman would have made had he continued his employment with Trimble through age 70, [2]compared to the wages and benefits he projects Mr. Tillman will make at his current job.

         In response, Defendants first argue that Plaintiff is not entitled to an unreasonable and excessive award that compensates him for the remainder of his working life. Second, Defendants argue that the jury's award of back pay fully compensated Plaintiff for any retaliation found by the jury. Third, Defendants state Plaintiff produced no competent evidence suggesting that his injuries have narrowed the range of economic opportunities available to him. Finally, Defendants argue that Plaintiff produced no competent evidence suggesting that his injury has caused a diminution in his ability to earn a living. [DE 263 at 2].

         Plaintiff replies that he mitigated his damages and should, therefore, be awarded the full amount of front pay he has requested. [DE 269 at 3-4]. He criticizes Defendants' mathematical computations as unsupported by the record evidence. [Id. at 5-8]. He further notes that a defendant should not be heard to complain about the ...


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