Alan Schorr’s Employment Cases of The Weeks ending May 10 and 17, 2013

Doculan v. Bayonne Medical Center, Docket No. HUD-6670-10 (Hudson County), Trial Verdict May 6 & 7, 2013; Complaint

Bikofsky v. Saint Barnabas Corp., Docket No. ESX-L-3176-10 (Essex County), Trial Verdict May 8, 2013; Complaint

Estok v. Liberty Harbor Marina & Dry Dock, Inc., SOM-L-711-09 (Somerset County), Trial Verdict May 6, 2013; Complaint

Two weeks ago, I wrote about a May Day mauling, in which there were two significant plaintiff victories in excess of $500K each. Well, it turns out that the May Day mauling was just the prelude to the Mother’s Day massacre in which there were two more verdicts in excess of one million dollars each. I believe that it is completely unprecedented for there to be four plaintiff verdicts in excess of a half-million dollars each within the space of one week. I also do not believe that this is merely a coincidence, as I will explain below.

Doculan v. Bayonne Medical Center was the first to hit. Based upon the allegations in the filed Complaint, Ceferino L. Doculan, Jr. was a hematology technologist with the Bayonne Medical Center for approximately 20 years. He alleged that he was terminated in retaliation for complaining that his supervisor was unlawfully understaffing the blood bank in violation of state law. Furthermore, Doculan complained that his supervisor did not possess the requisite credentials required by state law for her position. After he began complaining up the ladder in July 2010, he alleged that his supervisor learned about these complaints and that after maintaining an essentially unblemished work record for two decades, he “suddenly found that he was repeatedly disciplined, counseled, written up and otherwise dishonestly micromanaged” until he was finally terminated in September 2010.

The suit was brought under both CEPA and a common law cause of action under the Pierce doctrine. I assume that the trial was held on CEPA only, because I am unaware of any separate verdict under Pierce. The liability and damages trial itself lasted 5 days, with all eight jurors deliberating. The jury returned a verdict of compensatory damages in the amount of $140,000: $80,000 in lost wages and $60,000 for emotional distress. The following day, the jury added $2 million in punitive damages for a total verdict, before interest and attorney’s fees, of $2,140,000. The defense had never offered more than $10,000.

The very next day, an Essex County jury returned a verdict of $1,000,000.00 in Bikofsky v. Saint Barnabas Corp. Veronica Bikofsky, D.M.D. was a dentist who was the directing partner of the defendant’s dental practice since 1981. She alleged that in 2008, when Dr. Bikofsky was approximately 68 years old, she and four other older members of the dental practice were terminated. She alleged that, after her termination, the defendants continued to run the dental practice under the same name, except with substantially younger employees. The suit was brought under the New Jersey Law Against Discrimination on the basis of age discrimination. The defense had never offered more than $90,000.00. The case settled for an undisclosed amount prior to the beginning of the punitive damages phase.

There was yet another verdict that under normal circumstances would have been quite impressive, and which should not be overlooked. In Estok v. Liberty Harbor Marina & Dry Dock, Inc., a Somerset County jury (not known for being sympathetic to plaintiffs of any kind) awarded $100,000.00 ($86k for back pay and $14k for emotional distress) in a CEPA case. Plaintiff Linda Estok was the manager of a marina. She blew the whistle when her boss directed her to sell gasoline in an unlawful manner. She was immediately terminated for blowing the whistle, the boss claiming that she should not have made the complaint in a public manner. The defendant at trial claimed that the plaintiff had quit and was not terminated. The trial lasted three days.

I do not believe that it is coincidence that five big plaintiff employment verdicts all came at the same time. I believe that we will see more such verdicts until defendants and their insurance companies start settling good cases for reasonable amounts. It has been my impression that during the recent recession, the need for large law firms to stay busy combined with misplaced optimism that juries would favor employers have caused many of these cases to needlessly litigate to trial. Because of fee-shifting, the decision to heavily litigate cases like these make the cases more difficult to settle because under the LAD and CEPA, the defendant pays the plaintiff’s attorney’s fees.

Perhaps this recent run of big verdicts will lead more employer-defendants to consider reasonable and early settlements, especially where it is clear that the defendant faces an uphill battle. Perhaps this run of plaintiffs’ verdicts will further embolden plaintiffs to take these matters to trial. Either way, this run of five verdicts in seven days is not a coincidence and signals that we still have a long way to go in New Jersey before employers willingly comply with the state’s anti-discrimination and anti-retaliation laws.

Doculan v. Bayonne Medical Center
Plaintiff’s Counsel: Kevin M. Costello, Costello & Mains, P.C.
Defendants’ Counsel: Scott M. Wich and Laura Scully, Clifton, Budd and DeMaria, LLP
Trial Judge: Lawrence M. Maron, J.S.C.

Bikofsky v. Saint Barnabas Corp.
Plaintiff’s Counsel: Andrew Dwyer, La Toya L. Barrett, The Dwyer Law Firm, L.L.C.
Defendants’ Counsel: Mark J. Blunda, Timothy D. Cedrone, Apruzzese, McDermott, Mastro & Murphy, P.C.
Trial Judge: Sebastian P. Lombardi, J.S.C.

Estok v. Liberty Harbor Marina & Dry Dock, Inc.
Plaintiff’s Counsel: David Zatuchni, Zatuchni & Associates
Defendants’ Counsel: James A. Scarpone, Scarpone & Vargo LLC
Trial Judge: John J. Coyle, J.S.C.