Defendants Objection to Plaintiff s Proposed Judgment and Request for Briefing and Hearing Prior to Entry of Judgment

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1 2:15-cv MOB-DRG Doc # 75 Filed Pg 1 of 5 Pg ID 2403 FAISAL G. KHALAF, Ph.D., UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION v. Plaintiff, FORD MOTOR COMPANY, a Delaware corporation, BENNIE FOWLER and JAY ZHOU, jointly and severally, Defendant. STERLING ATTORNEYS AT LAW Carol A. Laughbaum (P41711) Raymond J. Sterling (P34456) Attorneys for Plaintiff 33 Bloomfield Hills Parkway Suite 250 Bloomfield Hills, Michigan (248) claughbaum@sterlingattorneys.com rsterling@sterlingattorneys.com Case No: 2015-CV Hon. Marianne O. Battani Magistrate Judge Stephanie Dawkins Davis KIENBAUM OPPERWALL HARDY & PELTON, P.L.C. Elizabeth P. Hardy (P37426) William B. Forrest III (P60311) Thomas J. Davis (P78626) Attorneys for Defendants 280 North Old Woodward Avenue Suite 400 Birmingham, Michigan (248) wforrest@kohp.com tdavis@kohp.com Defendants Objection to Plaintiff s Proposed Judgment and Request for Briefing and Hearing Prior to Entry of Judgment

2 2:15-cv MOB-DRG Doc # 75 Filed Pg 2 of 5 Pg ID 2404 Defendants Ford Motor Company ( Ford ), Bennie Fowler, and Jay Zhou, through their undersigned counsel, state the following objections to Plaintiff s proposed Judgment submitted to the Court for entry on April 3, 2018: 1. Plaintiff s proposed judgment (attached as Exhibit A) is inconsistent with the special verdict form, fails entirely to account for the Court s granting Defendants directed verdict on the issue of termination, and would be erroneous as a matter of law. Under Rule 58(b)(2), the form of the verdict and the Court s granting of relief means that the entry of judgment is not merely ministerial, and requires Court approval. The Court s judgment should take into account the relief it granted, and its impact on the verdict as issued, precluding any entry of judgment at this time. 2. Among other objections: Plaintiff s advisory award of $1.7 million in future damages was expressly predicated on Plaintiff s termination claim, and has no foundation once the Court granted the motion for directed verdict on the wrongful termination claim. Plaintiff nonetheless includes this in the proposed judgment. The Court should award $0 in future damages as a result. See, e.g., Lulaj v. Wackenhut Corp., 512 F.3d 760, 766 (6th Cir. 2008) ( court may render judgment as a matter of law as to some portion of a jury award if it is compelled by a legal rule or if there can be no genuine issue as to the correct calculation of damages. ) Plaintiff includes the award of $15 million in punitive damages, even though: 2

3 2:15-cv MOB-DRG Doc # 75 Filed Pg 3 of 5 Pg ID 2405 o The jury specifically found that Plaintiff did not prove that the supervisory decision-makers Fowler and Zhou acted with the necessary intent to award punitive damages finding no liability for punitive damages against these individual defendants. Thus, Fowler and Zhou s employer, Ford Motor Company, cannot be held liable for punitive damages as a matter of law. See, e.g., Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 534 (1999). o Plaintiff s proposed judgment improperly includes joint and several liability on the part of the individual defendants, even though the jury expressly found that these individual defendants were not liable for the punitive damages or for the termination claim. o The vast majority of the jury s actual damages award 94.4%, or $1.7 million out of the $1.8 million total related to the nowdefunct termination claim. Given that the jury was instructed, consistent with law, to consider [t]he relationship of any award of punitive damages to the amount of actual harm the Plaintiff suffered, the Court s elimination of the termination claim necessarily voids the jury s punitive damages award. o The jury s verdict form supports, at best, a punitive damages award under Title VII and thus that award is subject to the statutory cap of $300,000 in combination with emotional damages. o The jury s punitive damages award is plainly excessive and unconstitutional under State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426 (2003) and subsequent cases in this circuit. The Court should not enter a judgment that is contrary to the requirements of due process. The jury s award of $100,000 for emotional harm was likewise based, in part, on Plaintiff s termination claim that the Court subsequently directed a verdict on. The trial record, viewed in the light most favorable to the verdict (which, in part, favored Defendants), is insufficient as a matter of law to support the remaining hostile environment and retaliation claims. 3

4 2:15-cv MOB-DRG Doc # 75 Filed Pg 4 of 5 Pg ID Defendants request briefing and an opportunity to be heard before the Court enters any judgment. 4. Defendants likewise make these objections without prejudice to their raising the issues in a post-judgment motion for judgment as a matter of law, motion for a new trial, or motion for remittitur, including under Rules 50(b) and Rule 59(a), or Rule 59(e). Respectfully submitted, Dated: April 3, 2018 KIENBAUM OPPERWALL HARDY & PELTON, P.L.C. By: selizabeth P. Hardy Elizabeth P. Hardy (P37426) William B. Forrest III (P60311) Thomas J. Davis (P78626) Attorneys for Defendants 280 N. Old Woodward Avenue, Suite 400 Birmingham, MI (248)

5 2:15-cv MOB-DRG Doc # 75 Filed Pg 5 of 5 Pg ID 2407 Certificate of Service I hereby certify that on April 3, 2018, I electronically filed the foregoing document with the Clerk of the Court using the ECF system which will send notification of such filing to all parties of record. (no manual recipients) selizabeth P. Hardy Kienbaum Opperwall Hardy & Pelton, P.L.C. 280 N. Old Woodward Avenue, Suite 400 Birmingham, MI (248) (P37426)

6 2:15-cv MOB-DRG Doc # 75-1 Filed Pg 1 of 2 Pg ID 2408 FAISAL G. KHALAF, PH. D, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION vs. Plaintiff, FORD MOTOR COMPANY, a Delaware corporation; BENNIE FOWLER and JAY ZHOU, jointly and severally, Defendants. Carol A. Laughbaum P41711 Raymond J. Sterling P34456 STERLING ATTORNEYS AT LAW, P.C. Attorneys for Plaintiff 33 Bloomfield Hills Pkwy., Ste. 250 Bloomfield Hills, Michigan claughbaum@sterlingattorneys.com rsterling@sterlingattorneys.com Case No CV Hon. Marianne O. Battani Elizabeth P. Hardy P37426 William B. Forrest III P60311 Shannon V. Loverich P53877 KIENBAUM, OPPERWALL, HARDY & PELTON, P.L.C. Attorneys for Defendants 280 N. Old Woodward Ave, Ste. 400 Birmingham, Michigan wforrest@kohp.com sloverich@kohp.com JUDGMENT Based on the March 28, 2018 jury verdict, judgment in the amount of Sixteen Million Eight Hundred Thousand Dollars $16,800, is entered in favor of Plaintiff Faisal G. Khalaf, Ph.D. and against Defendants Ford Motor

7 2:15-cv MOB-DRG Doc # 75-1 Filed Pg 2 of 2 Pg ID 2409 Company, Bennie Fowler, and Jay Zhou, jointly and severally, plus costs, fees, and interest as provided by law. Approved: Dated:, 2018 Hon. Marianne O. Battani 2