Evans v. Fogarty, (10th Cir. 2007)

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UNITED STATES COURT

OF APPEALS

TENTH CIRCUIT

ALFRED MILTON EVANS, an individual;

SOUTHEASTERN OKLAHOMA FAMILY

SERVICES, INC., a corporation; RUSTLING

WINDS, INC., an Oklahoma corporation; MORNING

STAR MENTAL HEALTH SERVICES, INC., an

Oklahoma corporation; DIVERSIFIED FAMILY

SERVICES, INC., an Oklahoma corporation;

SERENITY SPRINGS MENTAL HEALTH

SERVICES, L.L.C., an Oklahoma corporation; JCH,

INC., an Oklahoma corporation; NEAL THRIFT, an

individual; NANCY GRAVES-THRIFT, an

individual; JOHN MAJORS, an individual;

CYNTHIA MAJORS, an individual; CHARLES

PARKHURST, an individual; MARY PARKHURST,

an individual; LEROY WHEELER, an individual;

and JOEL HOLCOMB, an individual,

Plaintiffs-Appellants/Cross-Appellees,

v.



MICHAEL FOGARTY, in his individual capacity, as

well as in his official capacity as Chief Executive

Officer for the Oklahoma Health Care Authority;

TERRIE FRITZ, in her individual capacity, as well

as in her official capacity as Director of Behavioral

Health for the Oklahoma Health Care Authority; and

DANA BROWN, in her individual capacity, as well

as in her official capacity as Legislative Liaison for

the Oklahoma Health Care Authority; TENKILLER

BEHAVIORAL SERVICES INC., an Oklahoma

corporation; DAVETTA MCINTOSH, an individual;

Defendants-Appellees/Cross-Appellants.

Nos. 05-6106, 05-6109,

05-6110, 05-6112,

05-6122,05-6358, 05-6359, &

05-6361

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before TACHA, Chief Circuit

Judge, McWILLIAMS, Senior Circuit Judge, and

LUCERO, Circuit Judge.

This case arises from a bare-knuckled political battle over state funding

for

outpatient behavioral and mental health services in Oklahoma between 1998 and

2002. It has resulted in a series of cases of unusual procedural complexity, as

well as two jury verdicts. We conclude that the district court abused its

discretion in granting a new trial following the first verdict. Exercising

jurisdiction under 28 U.S.C. 1291, we REVERSE.

I

During the period at issue, plaintiffs
name="txt1a">(1) operated clinics, predominantly in

rural areas of Oklahoma, providing services to adults and children with mental

and behavioral disorders. Plaintiffs relied almost exclusively on Medicaid

funding to cover the cost of providing these services, and their private clinics

were among many publicly funded facilities that offered such services. Medicaid

funding also flowed to state-affiliated community mental health centers

("CMHCs"), which are typically paid more than private providers for the same

services.

Michael Fogarty, Terrie Fritz, and Dana Brown ("defendants") were senior

officials of the Oklahoma Health Care Authority ("OHCA"), the agency charged

with administering Medicaid funds, during the relevant period. Fogarty was

hired as the Oklahoma state Medicaid director in 1995 and was promoted to

Chief Executive Officer of OHCA in September 1999. Fritz worked under

Fogarty as OHCA's Director of Behavioral Health Services. Brown also worked

under Fogarty as OHCA's legislative liaison in the state Capitol.

By the late 1990s, Fogarty, Fritz, and other officials at OHCA faced

substantial pressure to reduce Medicaid costs. At the same time, private

providers of behavioral and mental health services were competing with CMHCs

for the limited budget available for such services. Private providers had

expanded rapidly, and by the year 2000 numbered some 180, located at 330 sites.

Medicaid funds paid to these private providers grew from $3.1 million in 1994 to

$22.1 million in 1997. Fogarty and other OHCA officials viewed the rise in

overall expenditures with alarm.(2) They

also grew concerned about the relatively

limited oversight of private providers, which they believed created an opportunity

for fraud, mismanagement, and the provision of substandard services.

Accordingly, OHCA took a number of steps to limit the growth in Medicaid

reimbursements to private providers and to engage in more aggressive oversight

of these private facilities.

A number of private providers took umbrage with OHCA's policies during

this period and came to believe that Fogarty and others wanted to drive private

providers out of business. As their dissatisfaction increased, a group of private

providers banded together in late 1998 to form the Oklahoma Private Mental

Health Providers Association ("Association"). All individual plaintiffs were

members of the Association, which lobbied extensively in the state legislature,

the Governor's office, and elsewhere in support of its interests.

Conflict between the Association and the defendants first came to a head in

1998, when the Association successfully persuaded the Governor not to sign a set

of "emergency" rules proposed by OHCA. Those rules would have required,

among other things, all therapists to obtain a master's degree within six months

of adoption of the rules. Defendants supported this rule as a way to ensure

quality and consistency of services, but the Association persuaded the Governor

that the rules would put most private providers out of business. A second

conflict arose when, in July 1999, OHCA imposed across-the-board cuts in "units

of service" for mental health services by 30 percent for adults and by 5 percent

for children.(3) Faced with a steep drop in

revenue as a result of the cuts, the

Association persuaded the legislature to pass a $500,000 supplemental

appropriation in February 2000 and then a further appropriation of $1.1 million

in May 2000. When combined with federal matching funds, the supplemental

appropriation resulted in a $5.2 million influx, intended to restore funding to

prior levels. A third conflict arose over proposed legislation, known as House

Bill 1075, which would have equalized funding and oversight between CMHCs

and private providers. The Association unsuccessfully supported the bill as a

means of "leveling the playing field" between all providers of behavioral and

mental services; defendants opposed it.

On February 6, 2001, Evans, SOFS, and certain SOFS patients filed suit

under 42 U.S.C. 1983 against the defendants, Lynn Mitchell, OHCA State

Medicaid Director, and members of the OHCA Board in their official capacities.

That suit alleged unlawful termination of SOFS' Medicaid contract, unlawful

denial of requests for reimbursement, and First Amendment retaliation. Those

plaintiffs sought injunctive relief, compensatory damages, and certification of a

class action.(4) On April 10, 2001, Rustling

Winds and the other plaintiffs filed a

similar § 1983 action against the defendants, Mitchell, members of the OHCA

Board in their official capacities, and OFMQ.
name="txt5a">(5) The district court consolidated

those actions on May 15, 2002. Plaintiffs filed a third amended complaint on

June 25, 2002.

All plaintiffs went to trial on April 14, 2003, solely on their § 1983 First

Amendment retaliation claim.(6) Over the

course of the trial, plaintiffs presented

evidence in support of several alleged patterns of retaliation, each of which, they

argued, sufficed to prove their claim against all three defendants. Plaintiffs first

testified that defendants, particularly Fogarty and Brown, spoke to plaintiffs on

numerous occasions in rude, threatening, and demeaning terms. Second, they

stated that defendants singled out some of the plaintiffs for "retaliatory" audits by

the Surveillance Utilization Review Subsystem ("SURS") unit within OHCA,

which was responsible for auditing Medicaid recipients throughout the state.

Third, plaintiffs alleged that defendants directed OFMQ to reduce their

reimbursement rates by rejecting requests for higher value units, and further

directed OFMQ to impose greater administrative burdens on them. Fourth,

plaintiffs claimed that defendants prevented them from receiving their share of

the supplemental appropriations approved by the Oklahoma legislature in 2000.

They provided evidence showing that non-politically active providers received,

on average, higher reimbursement rates per unit of service.

The jury returned a verdict in favor of all plaintiffs and against all

defendants in the amount of $33,095,000, and returned a subsequent punitive

damages verdict in the amount of $1,350,000. Of the compensatory damages,

$24 million was awarded to the various corporate plaintiffs, and the remainder

was awarded to the various individual plaintiffs. All compensatory damages

were allocated between defendants according to the same ratio ­ 60 percent from

Fogarty, 30 percent from Fritz, and 10 percent from Brown. Punitive damages

were awarded in the amount of $50,000 for each individual plaintiff against each

defendant. Following the verdict, the court considered defendants' motions for

JMOL under Fed. R. Civ. P. 50(b).(7) On

July 9, 2003, it entered an order denying

JMOL to Fogarty and Fritz as to all plaintiffs, and granting JMOL to Brown, but

only as to the corporate plaintiffs and Holcomb. In the same order, the court

denied plaintiffs' request for injunctive relief against members of the OHCA

Board of Directors. That denial is not before us on appeal.

Defendants then filed renewed motions for JMOL and, in the alternative, a

new trial or remittitur. On August 25, 2003, the district court granted

defendants' motion for a new trial, vacating judgment in the first trial

[hereinafter "new trial order"]. The new trial order specifies two primary

justifications for vacating the judgment: (1) "[T]he evidence tending to show

retaliation against plaintiffs by any of the defendants was extraordinarily thin";

and (2) There was no proper evidentiary basis for either the amount or allocation

of the jury's damages awards. Evans v. Fogarty, No. CIV-01-0252-HE, slip op.

at 3 (W.D. Okla. Aug. 25, 2003). With regard to the first ground, the court

stated:

[M]uch of the evidence offered to establish retaliatory activity by

defendants Fogarty, Fritz and Brown bordered on pure speculation

and, in some instances, was based on little more than proof that the

particular defendant was a supervisor of some activity at OHCA. . . .

While the evidence here was sufficient to raise a jury question as to

the potential liability of these defendants, that evidence was far from

compelling.

Id. With regard to the second ground, the court stated: "[E]ach plaintff had the

burden of establishing not only that plaintiff's entitlement to relief but also the

amount of damages that plaintiff had suffered. Here, plaintiffs made no effort to

quantify the economic losses of each corporate plaintiff." Id. at 4. It further

stated that with respect to the corporate plaintiffs, "[t]he appropriate measure of

damages in this case was the lost profits ­ not lost gross revenues ­ of the

plaintiffs due to defendants' alleged retaliatory actions. . . . Plaintiffs' 'disparity'

evidence, to the extent that it proved anything, showed the loss in gross revenues

the plaintiffs arguably had from the alleged differential treatment." Id. at 5.

A second trial was held from September 15-23, 2004. Although the

evidence offered by the parties at the second trial varied somewhat from that

offered at the first, plaintiffs alleged the same patterns of retaliatory behavior.

Defendants filed a motion for summary judgment based on qualified immunity in

advance of the second trial, and reasserted that defense in subsequent motions for

JMOL.(8) The district court denied that

motion in an order dated December 3,

2003, stating:

This case has already gone to trial once. The pretrial order entered

in the case did not preserve or assert the defense of qualified

immunity. While a second trial need not necessarily involve the

same witnesses and proof, the Court concludes it is inappropriate . . .

to permit defendants to raise new and different legal issues or

defenses not at issue in the first trial.

Evans v. Fogarty, No. CIV-01-0252-HE (W.D. Okla. Dec. 3, 2003). Defendants

appealed from this order, and we dismissed their appeal for lack of jurisdiction.

See Evans v. Fogarty, 123 F. App'x 863 (10th Cir. 2005). Additionally,

defendants unsuccessfully objected, in advance of the second trial, to the

testimony of plaintiffs' expert witness Dale McDaniel. This was in contrast to

the first trial, at which McDaniel testified largely without objection.

At the close of the second trial, the jury found for all plaintiffs against

Fogarty in the amount of $1,020,000 for the individual plaintiffs and

$14,295,000 for the corporate plaintiffs. As to Fritz, the jury found for her

against all plaintiffs except Holcomb and his company, JCH, returning verdicts in

their favor for $250,000 and $325,000 respectively. As to Brown, the jury found

against her as to only two plaintiffs, Neal and Nancy Thrift, returning verdicts for

them of $25,000 each. After a second bifurcated punitive damages proceeding,

the jury awarded a total of $300,000 in punitive damages to the corporate

providers against Fogarty, $7500 to JCH against Fritz, and $500 to each of the

Thrifts against Brown.

Following the verdict, defendants renewed their motions for JMOL, which

the district court granted in part and denied in part on February 23, 2005.

Evans

v. Fogarty, No. CIV-01-0252-HE (W.D. Okla. Feb. 23, 2005). In its

order, the

court reaffirmed many of the doubts it expressed in the new trial order and its

order granting partial JMOL following the first trial. At heart, the court found

plaintiffs' evidence to be almost entirely conjectural as to causation:

The Court concludes that merely showing that a defendant is the

head of an agency or an agency program area, committed unrelated

"bad acts," and had serious disputes or disagreements with a

plaintiff, combined with evidence that the plaintiff was treated

unfavorably by the agency or experienced some sort of undesirable

agency action, is not enough, in and of itself, to support an inference

that the defendant caused whatever harm the plaintiff objects to.

Id. at 8. More specifically, the court determined that the plaintiffs' most fully-developed

theory of retaliation, that defendants directed OFMQ to discriminate

against them by rejecting high-rate units, found no support in the record: "There

was not . . . evidence from which a jury could have reasonably concluded that

these circumstances were due to Fogarty trying to single out and punish the

plaintiffs ­ these facts and circumstances applied to all private providers." Id. at

10. The order identifies at least four discrete breaks in the causal chain with

respect to the reimbursement disparity evidence: (1) a lack of evidence

suggesting Fogarty, Fritz, or Brown had control over OFMQ approvals; (2) a lack

of comparative data indicating the alleged disparity occurred after plaintiffs'

political activities began; (3) wide variation in the average monthly

reimbursement rate between plaintiffs and other providers (and also among

plaintiff providers); and (4) a lack of evidence that plaintiffs provided similar

services to other private providers or CMHCs.

On these bases, the court granted JMOL to Fogarty with respect to all the

corporate providers and two individual plaintiffs ­ Mary Parkhurst and Holcomb.

Recognizing that § 1983 liability does not extend to defamation, the court

nonetheless upheld the jury's verdict against Fogarty in favor of the other

individual plaintiffs on the basis of a "defamation plus threat" theory of liability.

It held that "defamatory language accompanied by some 'threat, coercion, or

intimidation intimating that punishment, sanction or adverse regulatory action

will imminently follow,' may support a First Amendment retaliation claim." Id.

at 12 (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th Cir.

2000). "Here, although a close question, the Court concludes there was evidence

from which the jury could reasonably have found that Fogarty defamed and at

least implicitly threatened those plaintiffs present in the meetings [at the state

Capitol]." Id. at 13. It granted JMOL to Fritz as to all plaintiffs, finding that the

same causal breaks with respect to the disparity evidence and control of OFMQ

that applied to Fogarty extended to Fritz. Id. at 31-33. Finally, it denied JMOL

to Brown based on the same "defamation plus threat" theory of liability it relied

on to uphold some of the individual damages awards against Fogarty. "[T]he

jury could have concluded that Brown made defamatory comments about the

Thrifts to legislators or others, under circumstances implying that some

punishment, sanction or adverse regulatory action would imminently follow." Id.

at 35.

On October 4, 2005, the district court entered an order granting plaintiffs a

reduced attorneys' fee award pursuant to 42 U.S.C. 1988(b). Fees and costs

were awarded to the plaintiffs in the amount of $356,749.40 against Fogarty and

$60,500 against Brown.

Plaintiffs now appeal from the district court's February 23, 2005 order

granting in part and denying in part defendants' motions for JMOL. They seek

reinstatement of the first jury verdict in full or, in the alternative, reinstatement

of the second jury verdict in full. Defendants Fogarty and Brown cross-appeal

from the same order, seeking JMOL as to all plaintiffs. Plaintiffs also appeal

from the district court's October 4, 2005 order granting a reduced fee award. In

their fee appeal, they seek reimbursement for all fees and costs associated with

this litigation. Defendants cross-appeal, arguing that the fee award should be

reduced further, or eliminated entirely. We have consolidated the merits appeals

(docket numbers 05-6106, 05-6109, 05-6110, 05-6112, 05-6122, and 05-6130)

and fee appeals (docket numbers 05-6358, 05-6359, and 05-6361) for purposes of

disposition.

II

Plaintiffs appeal from the district court's grant of partial JMOL following

the second trial, which we review de novo, viewing all evidence in the light most

favorable to the plaintiffs. Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 685

(10th Cir. 2007). Under Fed. R. Civ. P. 50 the district court may grant JMOL if

"a reasonable jury would not have a legally sufficient evidentiary basis to find for

the party on that issue." Defendants Fogarty and Brown cross-appeal from the

same order, arguing that JMOL should be granted as to all plaintiffs. "We review

de novo a district court's denial of a motion for judgment as a matter of law."

Marshall v. Columbia Lea Reg'l Hosp., 474 F.3d 733, 738 (10th Cir. 2007)

(citation omitted). "In order to reverse the trial court's decision on a motion for

directed verdict, we must find the evidence points but one way and is susceptible

to no reasonable inferences supporting the party opposing the motion." Mason v.

Texaco, Inc., 948 F.2d 1546, 1554 (10th Cir. 1991) (quotation and alteration

omitted).

However, the unusual procedural posture of this case requires that we first

assess plaintiffs' argument that the district court abused its discretion in granting

defendants a new trial under Fed. R. Civ. P. 59. Thus far, plaintiffs have not

been heard on this argument, as an order granting a new trial under Rule 59 is

interlocutory, and thus is not a final decision from which an appeal may be taken

under 28 U.S.C. 1291. See Allied Chem. Corp. v. Daiflon, Inc., 449

U.S. 33,

34 (1980). We review a trial judge's decision on a motion under Rule 59 for

abuse of discretion. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415,

433-35 (1996) (holding appellate review for abuse of discretion does not violate

party's Seventh Amendment right to a trial by jury); Frank v. Bloom, 634 F.2d

1245, 1254-55 (10th Cir. 1980). Yet when appellate review is of a district

court's grant of a new trial, we subject that decision to more stringent scrutiny in

order that the district court's judgment not be substituted for the jury's. See

Holmes v. City of Massillon, 78 F.3d 1041, 1047 (6th Cir. 1996); Hutchinson v.

Stuckey, 952 F.2d 1418, 1420-21 (D.C. Cir. 1992); Lind v. Schenley Indus., Inc.,

278 F.2d 79, 90 (3d Cir. 1960). "This is particularly true when the motion is

granted on the ground that the verdict is against the weight of the evidence."

Hutchinson, 952 F.2d at 1421. In those instances, "[s]uch a close scrutiny is

required in order to protect the litigants' right to jury trial." Id. (quotation

omitted).

III

Central to the district court's decision to grant a new trial was its view that

"the evidence tending to show retaliation against the plaintiffs by any of the

defendants was extraordinarily thin." Evans v. Fogarty, No. CIV-01-0252-HE,

slip op. at 3 (W.D. Okla. Aug. 25, 2003). Accordingly, our review of the new

trial order necessitates that we consider the sufficiency of plaintiffs' evidence at

the first trial as to each defendant.

Plaintiffs brought suit against defendants under § 1983, alleging they

suffered retaliation related to their exercise of First Amendment rights.

"Although retaliation is not expressly discussed in the First Amendment, it may

be actionable inasmuch as governmental retaliation tends to chill citizens'

exercise of their constitutional rights." Perez v. Ellington, 421 F.3d 1128, 1131

(10th Cir. 2005) (citation omitted).(9)

Outside the public employment context,

plaintiffs must prove the following elements to establish a retaliation claim:

(1) that the plaintiff was engaged in constitutionally protected

activity; (2) that the defendant's actions caused the plaintiff to suffer

an injury that would chill a person of ordinary firmness from

continuing to engage in that activity; and (3) that the defendant's

adverse action was substantially motivated as a response to the

plaintiff's exercise of constitutionally protected conduct.

Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) (quotation and citation

omitted).(10)

Parties do not dispute that plaintiffs engaged in protected First Amendment

activity. Our review of the evidence from the first trial is thus limited to

whether

there was evidence of (1) "an injury that would chill a person of ordinary

firmness from continuing to engage in [protected] activity," (2) whether

defendants caused that injury, and (3) whether defendants' actions were

motivated by plaintiffs' protected activity. Worrell, 219 F.3d at 1212. As to the

third issue, retaliatory motive, the district court found there was ample evidence

of retaliatory motive in its order of July 9, 2003, and did not revisit this point in

the new trial order. See Evans v. Fogarty, No. CIV-01-0252-HE, slip op. at 5

(W.D. Okla. July 9, 2003) ("The Court has little difficulty in concluding there

was sufficient evidence to create a jury question as to retaliatory motive.").

Although defendants challenge this holding, we agree that there was sufficient

evidence in the record for a jury to find retaliatory motive on the part of all three

defendants. With respect to the causation and injury elements, we must examine

the distinct patterns of retaliatory activity alleged by the plaintiffs to determine

whether plaintiffs offered evidence as to any one pattern sufficient for a

reasonable juror to find in their favor.

As we wade through the evidence presented at the first trial, we

reemphasize the Seventh Amendment protections that underpin our inquiry,

which provide that "no fact tried by a jury, shall be otherwise re-examined in any

Court of the United States, than according to the rules of the common law." U.S.

Const. amend. VII. "Thus, under the Seventh Amendment, the court may not

substitute its judgment of the facts for that of the jury; it may only grant a new

trial if it concludes that the jury's verdict was so against the weight of the

evidence as to be unsupportable." Skinner v. Total Petroleum, Inc., 859 F.2d

1439, 1443 (10th Cir. 1988). It is also worthy of mention that plaintiffs carried a

burden to establish the personal participation of each defendant in the alleged

retaliation; section 1983 liability may not be predicated on a respondeat superior

theory. See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.

1993) ("A

supervisor is not liable under 1983 unless an affirmative link exists between the

constitutional deprivation and either the supervisor's personal participation, his

exercise of control or direction, or his failure to supervise.") (quotation omitted).

A

Of the several patterns of retaliatory behavior alleged by plaintiffs

at the

first trial, the most thoroughly developed (and heavily contested) was their

allegation that defendants directed OFMQ to approve fewer and lower value units

for reimbursement, and to increase costly administrative burdens. In support of

this allegation, plaintiffs offered their own testimony, the testimony of several

third-party witnesses, and a set of data representing 25 months of reimbursement

approvals for all private providers and CMHCs across the state. That data was

compiled and analyzed by Roger Dale McDaniel, a certified public accountant

who testified as an expert witness at the first trial. McDaniel analyzed monthly

reimbursement data provided by Unisys Corporation, OFMQ's fiscal agent, for

the months July 1999 through January 2002.
name="txt11a">(11)

For those months included in the Unisys reports, the data shows all units

approved for each provider funded through OFMQ. McDaniel testified that, on

average, the plaintiff providers (and some providers initially named as plaintiffs

but later dismissed) were reimbursed at a lower rate per unit of service than

CMHCs and non-plaintiff providers. Across this 25-month period, plaintiff

providers were reimbursed at an average rate of $8.85 per unit, other private

providers were reimbursed at an average rate of $18.13 per unit, and CMHCs

were reimbursed at an average rate of $13.02 per unit (adjusted to $16.93

considering the 30 percent additional reimbursement provided to CMHCs). This

disparity in average, across-the-board reimbursement rates was introduced as

evidence of retaliatory injury and also as damages evidence with respect to the

corporate plaintiffs.

Defendants did not object to McDaniel's qualifications to offer expert

testimony on the Unisys data, but did challenge his methodology and conclusions

on cross-examination. McDaniel admitted that his calculations represented

nothing more than a simple average, not a mean or mode, and that he was

unfamiliar with statistical methodologies. He also admitted that the Unisys data

included only those units for which each provider was approved, and showed

nothing about the quantity or type of units requested, or whether any individual

provider even billed those units for which it was approved. He further admitted

that, on average, plaintiff providers billed substantially more per client ($595.01)

during that period than either the CMHCs ($393.17)
name="txt12a">(12) or other private providers

($384.59).

Defendants moved for JMOL at the close of the plaintiffs' case, but did

not

raise specific objections to the disparity evidence at that time. As to Fritz,

defendants stated:

The testimony over and over and over again by various of the

plaintiffs was that every time there was a budget problem at the

Health Care Authority that such things as units were reduced or

reimbursement rates were cut. But that applied to all private

providers across the board. The unit cuts applied to CMHCs and

private providers across the board. So what they have shown is that

there was a budgetary motive and not a retaliatory motive on behalf

of any of the plaintiffs [sic] in this case.

As to Fogarty and Brown, defendants did not mention the disparity evidence. In

their motion for JMOL following the verdict, defendants focused on plaintiffs'

failure to prove causation ­ i.e., lack of evidence to prove Fritz or Fogarty

exerted any control over OFMQ approvals ­ but said little about the validity of

the disparity evidence as proof of retaliatory injury. In their renewed motion

for

JMOL or, alternatively, a new trial, defendants discussed the disparity evidence

with respect to lost profit damages, but only briefly touched on whether the

disparity evidence could go toward retaliatory injury.

Nonetheless, in its July 9, 2003 order denying JMOL in part, the district

court addressed several weaknesses of the disparity evidence in substantially

greater detail than found in the defendants' motions for JMOL. It then explicitly

referenced that discussion(13) in the new

trial order, finding that the disparity

evidence was insufficient to support a First Amendment retaliation claim as to

any of the defendants. The court concluded that the evidence tending to show

liability was "extraordinarily thin." Evans v. Fogarty, No. CIV-01-0252-HE, slip

op. at 3 (W.D. Okla. Aug. 25, 2003). With respect to damages, the court found

that "[t]he jury's formulaic allocation of damages between each of the defendants

was also troublesome." Id. at 5. It determined that the corporate plaintiffs'

damages awards were unsupported by the evidence, because they were based on a

measure of lost revenues as opposed to lost profits. Individual plaintiffs'

damages awards, which ranged from $295,000 to $1.5 million, were deemed

excessive.

Although, as discussed infra, we share the district court's concerns about

the corporate damages awarded at the first trial, we hold that it abused its

discretion in granting a new trial. Taken in the context of all other evidence

produced at trial, a reasonable juror could have found both retaliatory injury and

causation. In its discussion of this evidence in the July 9, 2003 and new trial

orders, the district court improperly intruded on the jury's primary role as

factfinder and substituted its own judgment for that of the jury.

Our review of the evidence admitted at the first trial satisfies us that a

reasonable juror could have found Fogarty and Fritz caused OFMQ to approve

fewer and/or lower value units. Recognizing that "[i]ndividual liability under

§ 1983 must be based on personal involvement in the alleged constitutional

violation," Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997) (citation

omitted), there was sufficient evidence of Fritz and Fogarty's personal control

over OFMQ to establish causation.

Fogarty testified via deposition that "we directly control [OFMQ] as a

contractor" and "we write the terms of the contract and they agree to it."

Charles

Parkhurst, owner of DFS, testified that he spoke with Fogarty regarding certain

units that Parkhurst felt were unfairly denied by OFMQ. According to Parkhurst,

Fogarty agreed that the units should be restored, and that he would personally

resolve the issue with a phone call to OFMQ. When asked whether Fogarty

indicated that "with a simple phone call to OFMQ he could control your units,"

Parkhurst replied, "Yes. That's what he told me." In fact, the contract in place

between OHCA and OFMQ during this period provides for relatively close

supervision of the OFMQ approval process by OHCA:

The parties agree to discuss at a minimum of one weekly meeting

any problems or concerns relating to [prior authorization] services.

OFMQ agrees to provide a half time data analyst to assist the OHCA

and the OFMQ prior authorization program in analyzing and

studying utilization patterns of providers and recipients of outpatient

behavioral health services.

By contrast, there is no provision in the contract for OFMQ's independence with

regard to prior approval of reimbursement plans.

Fritz testified that she spoke with OFMQ staff regularly, and that when an

individual provider raised a concern, she would occasionally call OFMQ to

discuss what happened in that particular instance. OHCA Finance Director

Deborah Ogles testified that Fritz was the "go-between" between OFMQ and

senior executives at OHCA. OFMQ's Outpatient Behavioral Health Manager,

Kirk Nicholson, testified that Fritz was his principle contact within OHCA, and

that he touched base with her once per week. John Majors testified that he

witnessed Fritz kick an OFMQ employee under the table during a meeting to

indicate that a provider's question was best left to her.

Moreover, there was evidence suggesting that Fritz, and to a lesser

extent

Fogarty, had an exquisite understanding of the relationship between the unit mix

approved by OFMQ and overall outlays for behavioral and mental health

services. For example, in an April 7, 1999 letter from Fritz to Sean Black

discussing the potential cost impact of House Bill 1075, Fritz wrote:

The assumption is that if the providers are able to use their bachelor

trained employees to provide the more expensive counseling services

instead of the lesser reimbursed rehab services there will be a

significant tendency to do so. . . . If HB1075 were enacted the

OHCA could anticipate very little use of the Individual Rehab

treatment and continuing high use of the counseling units.

In a memo laying out what plaintiffs refer to as the "four point plan," Fritz

describes OFMQ's role as "slow[ing] down" the growth of private provider

services, and states that downward adjustment of rates was intended to "eliminate

providers and services." By crediting these statements, a reasonable juror could

surely draw the inference that Fritz and Fogarty exercised tight supervisory

control over OFMQ and closely tracked private provider reimbursements.

Coupled with other evidence adduced at trial, jurors could also reasonably

rely on the disparity evidence as proof of retaliatory injury. Plaintiff providers

testified that they serviced the same population of patients as CMHCs and other

private providers. Charles Parkhurst testified to fairly regular movement of

patients back and forth between DFS and a nearby CMHC. Several third-party

witnesses corroborated that testimony. Linda Coffman, a licensed professional

counselor at SOFS, testified that she could discern no difference between the

patient population she serviced at her prior employer, a local CMHC, and that

serviced by SOFS. Michael Elder, an attorney and one-time consultant to OHCA,

testified that the services provided by CMHCs and private providers were "all the

same." Nicholson testified that "[t]he same type of services as far as what they

can provide are available between the two different ­ the privates and public

facilities."

Although plaintiffs did not produce pre-1999 data, and thus could not

show that the reimbursement disparity widened after they formed the Association,

jurors could have relied on plaintiffs' testimony that the number and type of units

approved changed after they began lobbying. Mary Parkhurst testified that she

noticed a change in OFMQ treatment approvals at DFS in late 1999 through early

2000. Evans testified that after the Association began lobbying at the Capitol,

"OFMQ got a little tougher to deal with." John Majors testified that in the

Spring of 1999, "when we began to really speak out and ask for accountability

OFMQ began to crack down and adjust. And almost like clockwork, when there

would be a big issue at the capitol . . . my therapists would say sounds like you

all spoke out today, because we're getting rejections, lowering units, major

adjustments to our treatment plans." Neal Thrift testified that soon after the

Association began lobbying, "we [were] not given as many units for the

counseling services." Charles Parkhurst testified that in 2000, "[w]e started

getting a lot of modifications downward. We started getting a lot of requests for

information. We got more technical denials. It turned into a nightmare."

Furthermore, there was at least some evidence that OHCA increased

administrative burdens on plaintiff providers during this period. Holcomb

testified that soon after joining the Association he noticed a delay in prior

approvals. He also testified that during the process of getting Commission on

Accreditation of Rehabilitation Facilities ("CARF") accreditation for JCH, one of

the auditors spoke with someone at OHCA. Immediately thereafter, the

auditors

at his facility identified new problems. He further testified to receiving a call

from Fritz telling him that he had not been accredited, before he himself had been

notified of that fact by CARF.

Jurors could also have drawn the rational inference that plaintiff

providers

had an incentive to request higher value units, and did in fact request such units.

William Schmid, a clinical psychologist, testified that the private providers

worked off of a fixed cost base, and thus had a strong incentive to keep their

clinicians providing therapy, and, ideally, higher value units of service. "[Y]ou

really can't make up a loss on volume. I've tried; it doesn't work."

None of this is to refute the validity of the district court's concerns with

respect to the admittedly imperfect disparity evidence derived from the Unisys

data and testified to by McDaniel. Viewing the trial record as whole, a

reasonable juror could conclude that Fogarty and Fritz moved aggressively in

response to a severe budget crisis, but that all policy changes designed to reign in

costs applied to private providers across the board, and that they did not have the

means to target the plaintiff providers even if they wished to. Yet a reasonable

juror could also come to the opposite conclusion ­ that Fogarty and Fritz were

persistently hostile to the plaintiff providers, whom they viewed as damaging to

OHCA's interests, and used their authority to single out plaintiff providers for

discriminatory treatment. Accordingly, the district court abused its discretion in

taking that determination away from the jury.
name="txt14a">(14)

B

Plaintiffs argued that in addition to directing OFMQ to scale back on

reimbursements to plaintiff providers, defendants used their authority to increase

the number and intrusiveness of OHCA audits of their facilities. They also

alleged that OHCA demanded larger recoupments of previously billed services

after they began lobbying at the Capitol. The SURS unit at OHCA was

responsible for identifying suspicious and potentially fraudulent billing at

numerous Medicaid-funded facilities, including those providing behavioral and

mental health services. Webb, SURS's Director, testified that her unit's audit

decisions were based on a combination of referrals and objective criteria run

through a statistical program to spot suspicious billing patterns. Webb, Fritz, and

Fogarty all denied that any audits performed by the SURS unit were retaliatory.

In its discussion of this evidence in the July 9, 2003 order, the district

court found the retaliatory audit evidence sufficient to create a jury question,

albeit barely:

Evidence as to the timing and severity of [OHCA]'s audits of

plaintiffs, taken in the light most favorable to plaintiffs and giving

them the benefit of all reasonable inferences, might support an

inference that some aspect of the audits was retaliatory. Any

evidence suggesting such retaliation was purely circumstantial

though and, as with the evidence relating to other instances of

claimed retaliation, extraordinarily thin.

Evans v. Fogarty, No. CIV-01-0252-HE, slip op. at 12 (W.D. Okla. July 9, 2003).

The court did not revisit this alleged pattern of retaliation in its new trial order,

in part because it found that the jury's damages awards at the first trial must have

hinged on the disparity evidence.

Although we share the district court's skepticism about the evidence

offered with respect to retaliatory audits, a reasonable juror could have found for

Charles and Mary Parkhurst and their facility, DFS, as against Fritz based on the

evidence presented. Mary Parkhurst testified that DFS was audited by the SURS

team in March 2002, and that she received an unusually large recoupment

request, amounting to $16,000, soon thereafter. Charles Parkhurst testified that

the basis for the recoupment decision was never explained to him. Fritz admitted

that she complained to the SURS unit about DFS. This evidence, taken in

conjunction with testimony showing the contentious relationship of the parties,

could lead a reasonable juror to conclude that Fritz personally participated in the

decision to audit DFS and that her motive in making that referral was

retaliatory.

With respect to the remainder of the audit evidence, it was simply too

speculative to prove personal participation or causation as to any of the

defendants. Evans testified that immediately after serving an open records

request he was hit with two unusually invasive audits of his facility, SOFS. He

also testified that he received the results from those audits unusually quickly, and

that the result of a November 27, 2000 audit was hand-delivered. Yet in light of

overwhelming evidence of multiple problems at SOFS, undisputed evidence that

OHCA received several referrals from employees of SOFS, and the lack of any

evidence linking any of the defendants to the SOFS audits, no reasonable juror

could have found for Evans or SOFS on this basis. Audit-related testimony

from

Neal Thrift and John Majors was also speculative and could not form a basis for

liability.

C

In addition to the audit and disparity evidence, plaintiffs introduced

evidence at the first trial that defendants had blocked plaintiff providers from

receiving their share of two supplemental appropriations approved by the

Oklahoma state legislature in early 2000. The first appropriation amounted to

$500,000, and was passed in February 2000; the second, amounting to $1.1

million, was passed in March 2000. Considering federal matching funds, these

appropriations provided $5.2 million in additional funding. In its July 9, 2003

order, the district court found that the evidence relating to the supplemental

appropriation created a jury question on plaintiffs' claim:

Plaintiffs testified that, although they were successful in obtaining

passage of the supplemental appropriation, none of them received

any restored units. Defendant Fritz testified that restoration of units

was done on a case-by-case basis, depending apparently on whether

it was requested in a particular case. It was unclear from plaintiffs'

evidence whether plaintiffs sought such restorations and were denied

them, or whether they simply assumed the restorations would be

across the board and therefore did not pursue reimbursements in

each affected case. However, considering the evidence in the light

most favorable to plaintiffs and drawing all reasonable inferences

therefrom, the Court concludes the evidence was sufficient to create

a jury question as to whether, in some fashion, defendants Fogarty

and/or Fritz retaliated against plaintiffs by somehow denying them

any portion of the units restored by the supplemental appropriation.

Evans v. Fogarty, No. CIV-01-0252-HE, slip op. at 8-9 (W.D. Okla. July 9,

2003). We agree that the supplemental appropriation evidence created a question

of fact for the jury and that a reasonable juror could have found against Fritz and

Fogarty on this basis.

Several of the plaintiffs, including Nancy Graves-Thrift, Evans, John

Majors, and Wheeler, testified that none of the supplemental appropriation was

allocated to their facilities via restoration of units previously cut. They alleged

that this funding, which was allocated to the OHCA general fund, was withheld

from them in retaliation for their political activities. This testimony is supported

by a letter from State Senator Cal Hobson to Fogarty, dated August 22, 2000.

That letter reads in part:

The case has been convincingly made to me that despite a formal

restoration in the maximum number of allowable services, in practice

[OFMQ] has been systematically and almost universally rejecting

requests to authorize services back up to the traditional levels.

Instead, they have been holding patients at or below the reduced

limits set while the cuts were in place.

Other evidence, in addition to the Hobson letter, showed that this was a matter of

heated dispute between OHCA and the Association, and that the Association met

with Fogarty on the issue. At this meeting Fogarty said OHCA would not

support the supplemental appropriation.

With respect to causation, Wheeler testified that Fogarty assured him he

would look into the restoration of units at Wheeler's facility, and assured him the

money would find its way into the providers' pockets. Fritz testified that the

supplemental appropriation resulted in restoration of units to providers, but that

those units were restored "on a case-by-case basis." In light of other evidence in

the record, including evidence that Fritz and Fogarty supervised OFMQ

approvals to private providers, a reasonable juror could find against Fritz and

Fogarty on the basis of this evidence.

D

Plaintiffs alleged a fourth pattern of retaliation, specific to SOFS. They

claimed that SOFS' Medicaid contract was terminated in January 2001 in

retaliation for Evans' political activities. Specifically, plaintiffs alleged that Fritz

and Fogarty retaliated against Evans by terminating his contract soon after Evans

sent Fogarty a disclosure request under the Open Records Act. See Okla. Stat.

tit. 51, § 24A. Evans sent that request on November 22, 2000. He received a

letter from Fritz dated January 8, 2001, notifying him that his contract had been

terminated. The district court found in its July 9, 2003 order that there was

sufficient evidence on this question to create a triable issue of fact for the jury:

"Finally, the evidence showed the medicaid contract of [SOFS] was not renewed,

which is actionable, adverse action as to it." Evans v. Fogarty, No. CIV-01-0252-HE,

slip op. at 12 (W.D. Okla. July 9, 2003). The record includes evidence

showing problems at SOFS. Evans hid his involvement with SOFS in violation

of both OHCA rules and his Medicaid contract. It is also fairly clear there

were

persistent billing problems at SOFS facilities. However, we agree that a

reasonable juror could have found the termination retaliatory.

There was ample evidence from which a reasonable juror could conclude

that Evans' political activities were irritating to Fritz and Fogarty. Multiple

communications reveal the battle Evans waged with OHCA and several OHCA

documents demonstrate that OHCA paid close attention to SOFS. Furthermore,

some evidence suggested that Fritz and Fogarty were personally involved in the

termination decision. An internal OHCA document showed that Fogarty was

personally involved in a decision to hold SOFS' termination in abeyance

following a state representative's request to keep SOFS' facilities open.

Accordingly, a reasonable juror could have found the termination decision to be

retaliatory.

E

Plaintiffs expended substantial time at the first trial offering evidence of

allegedly hostile, defamatory, and threatening comments made to individual

plaintiffs by Fogarty and Brown. The district court relied on this evidence to

deny JMOL to Brown and Fogarty as to all individual plaintiffs except Holcomb

(who did not actively lobby before the state legislature), relying on Suarez.

It

recognized that federal courts have historically been chary of extending § 1983

liability to defamation, see Paul v. Davis, 424 U.S. 693, 702 (1976), but held

that

a § 1983 claim may succeed if defamation is "coupled with some threat, sanction

or similar retaliatory action." Evans v. Fogarty, No. CIV-01-0252-HE, slip op. at

12 (W.D. Okla. July 9, 2003). Without reaching the question of whether we find

Suarez persuasive, we discern no basis in the record for holding Fogarty or

Brown liable because of their comments to plaintiffs.

Nancy Graves-Thrift testified that, while she was in a public restroom at

the state Capitol, Brown said: "[Y]ou all are wasting your time here. These

people can't help you. We can help you. You're just making my job harder."

She further testified that Fogarty said to her, "[Y]ou're not helping me, you're

hurting me." Finally, she testified that she witnessed Brown "flip off" John

Majors (testimony which Majors corroborated). Charles Parkhurst testified that

while he stood outside a committee room at the Capitol, Fogarty asked him,

"What can we do to make [House Bill] 1075 go away?" Cynthia Majors testified

Fogarty threatened that if her husband John Majors continued to lobby at the

Capitol, "he could send someone down to investigate [her] nursing home for

fraudulent billing." Gerrol Adkins, Cynthia Majors' father, corroborated her

testimony on this point. John Majors testified that he attended a meeting with

Fogarty and various state legislators at which Fogarty labeled the members of the

Association "frauds and crooks." Finally, Evans testified that he spoke to

Fogarty on the phone while at the Capitol and Fogarty asked, "Do you think you

could talk to your group and see if you could get them to stop trying to get this

House Bill 1075 passed?"

In Paul, the Court held that injury to reputation, alone, is insufficient to

establish a deprivation of a plaintiff's Due Process rights. 424 U.S. at 712.

Rather, plaintiffs must show that a "right or status previously recognized by state

law was distinctly altered or extinguished." Id. at 711; see

also Siegert v. Gilley,

500 U.S. 226, 234 (1991). Accordingly, defendants' comments, even if

defamatory or hostile, cannot form the basis for a § 1983 action absent some

ancillary change in plaintiffs' status (i.e., injury), which plaintiffs failed to

demonstrate. See Hardeman v. City of Albuquerque, 377 F.3d 1106, 1118-19

(10th Cir. 2004) ("We have never found a First Amendment violation on the

basis of disparaging comments alone.").

On the other hand, threats of official sanctions aimed at discouraging

protected activity can form the basis of a constitutional violation. See Bantam

Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963). Yet no reasonable juror could

find that any of the alleged comments, with one possible exception, could

constitute a threat that would "chill a person of ordinary firmness." Worrell, 219

F.3d at 1212. Nor is Suarez on point. In that case a defendant told plaintiffs that

it would "become his mission to cause as much pain, damage, and injury as

possible to [them]." 202 F.3d at 680. He further threatened that he would

"inflict the maximum degree of penalty" if plaintiffs refused to agree to a

temporary injunction. Id. While the statements alleged to have been made by

defendants in this case evince a level of discourse that falls well short of our

public ideals, none of the comments are analogous to the specific threats at issue

in Suarez.

The one possible exception to this analysis is the alleged threat made by

Fogarty to Cynthia Majors. While we are skeptical that the phone call between

Fogarty and Cynthia Majors could be construed as an "imminent [threat of]

adverse regulatory action," see Blankenship v. Manchin, 471 F.3d 523, 529

(4th

Cir. 2006), we need not reach the issue. The jury could have imposed liability on

Fogarty with respect to Cynthia Majors and her facility, Morning Star, based on

the other alleged patterns of retaliation. See Part III.A supra. Cynthia Majors'

membership in the Association includes her in the group of plaintiffs that have

established political activity on the facts of this case. Evidence of causation and

injury are discussed above.(15)

Accordingly, we conclude it was error for the district court to deny JMOL

to Brown as to all plaintiffs following the first trial. The district court based its

denial to Brown on her comments labeling some of the defendants "crooks" and

"frauds," holding that "[s]uch comments, if made, arguably go beyond the scope

of that which the First Amendment protects." Evans v. Fogarty, No. CIV-01-0252-HE,

slip op. at 11 (W.D. Okla. July 9, 2003). Yet for the reasons stated

above, such comments are at most defamatory, and do not, standing alone,

provide a basis for recovery in a § 1983 action.
name="txt16a">(16) As to the other patterns of

retaliation discussed in the preceding sections, plaintiffs offered no evidence that

Brown had any authority with respect to OFMQ or the SURS unit, or that she

personally participated in that retaliatory activity. Plaintiffs' claims against

Brown are unsupported by the evidence, and are properly dismissed as a matter of

law.(17)

IV

Defendants argue that even if the evidence at the first trial were sufficient

to support a finding of liability, damages to both the corporate and individual

plaintiffs were "so excessive as to shock the judicial conscience and to raise an

irresistible inference that passion, prejudice, corruption or improper cause

invaded the trial," see Fitzgerald v. Mountain States Tel. & Tel. Co., 68

F.3d

1257, 1261 (10th Cir. 1995), and, in the case of the corporate plaintiffs, without

any economic basis.(18) The amount of

damages awarded at the first trial, both to

the corporate and individual plaintiffs, was a matter of concern to the district

court, and was a key factor in its granting a new trial. Evans v. Fogarty, No.

CIV-01-0252-HE, slip op. at 3 (W.D. Okla. Aug. 25, 2003) ("The sufficiency of

the evidence to support the damages awarded in this case is also central to the

Court's conclusion that a new trial must be ordered."). The court primarily took

issue with the awards to the corporate plaintiffs, finding the jury's allocation of

damages to be "formulaic,"(19) and further

finding that the awards could not be

supported by any plausible measure of lost profits. Id. at 5. It also deemed the

individual damages awards to be "plainly excessive." Id. at 6.

Our review of a jury's findings with respect to damages is limited to

whether they are supported by substantial evidence. Dodoo v. Seagate Tech.,

Inc., 235 F.3d 522, 531 (10th Cir. 2000). "[A]bsent an award so excessive or

inadequate as to shock the judicial conscience and raise an irresistible inference

that passion, prejudice or another improper cause invaded the trial, the jury's

determination of the amount of damages is inviolate." Id. (quotation and

alteration omitted). When an appellate court concludes a damages award was

erroneously excessive, but that no error tainted the jury's finding of liability, it

may order a remittitur or direct a new trial. See Malandris, 703 F.2d at

1168.

With these standards in mind, we turn first to the individual plaintiffs' awards,

and then to the corporate plaintiffs' awards.

A

1

In the first trial, the jury awarded Evans $300,000 in compensatory

damages as against Fogarty and $150,000 as against Fritz. These sums appear to

be at the upper range of emotional damages upheld in this circuit, see Dodoo,

235

F.3d at 532 (affirming emotional damages in the amount of $125,000); Smith v.

Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1416 (10th Cir. 1997) (affirming

emotional damages in the amount of $200,000), but on our review of the record,

we cannot say that they shock the judicial conscience. Evidence presented at trial

allowed the jury to find that Fritz and Fogarty acted to terminate Evans'

Medicaid contract, effectively putting him out of business. Evans took the lead

for the Association in filing a disclosure request with the OHCA, and some

evidence suggested that Evans suffered targeted retaliation as a result of that

request. Moreover, Evans testified to engaging in a long-running battle with

OHCA officials to keep his facilities open. He stated that his struggles to keep

open SOFS facilities left him with a large personal debt, caused him substantial

stress over a number of years, and caused him to lose 25-30 pounds. Such

testimony supported a finding that he lived in constant fear of retaliation by

OHCA against his business.

Contrary to defendants' suggestion, there is no rule in this circuit requiring

corroboration of a plaintiff's testimony to support an emotional damages award.

See, e.g., Dodoo, 235 F.3d at 532; compare Koopman v. Water

Dist. No. 1, 41

F.3d 1417, 1420 (10th Cir. 1994) (denying emotional damages when no witness

testimony corroborated plaintiff's mental state, and circumstances afforded no

basis to infer stress was caused by a recoverable injury). Nor do we accept

Fogarty's argument that Evans' testimony referred solely to economic concerns ­

rather, Evans' testimony went to emotional distress caused by Fritz and Fogarty's

retaliation and was sufficient to support an award of emotional damages.

As to the district court's finding that Wulf v. City of Wichita, 883 F.2d

842 (10th Cir. 1989), set a $50,000 "guidepost" for emotional distress damages,

that conclusion misreads our holding. In Wulf we reduced an emotional damages

award of $250,000 to $50,000 in a First Amendment retaliation case in which the

retaliatory injury was the loss of the plaintiff's job. Id. at 875. Nothing in Wulf

contradicts the basic principle that a jury's damages award is highly specific to

the facts and circumstances of the case. More generally, it bears repeating that

compensation in cases involving constitutional rights should not be approached

in a miserly fashion. "It is in the public interest that there be a reasonably

spacious approach to a fair compensatory award for denial or curtailment of the

right." Foster v. MCI Telecomms. Corp., 773 F.2d 1116, 1121 (10th Cir. 1985).

Under that relatively generous standard, and carefully considering the facts of

this case, we cannot say that the jury's compensatory damages award to Evans

shocks the judicial conscience.

2

The jury awarded Wheeler $177,000 in compensatory damages against

Fogarty and $88,500 in compensatory damages against Fritz. This award finds

no basis in the record. Wheeler did not testify that he suffered any emotional

distress, nor could any other evidence introduced at trial support an inference that

he suffered such distress. Accordingly, Wheeler failed to prove compensable

injury as to any of the defendants, and only nominal damages were appropriate.

See Lippoldt v. Cole, 468 F.3d 1204, 1220-21 (10th Cir. 2006) (upholding

district court award of nominal damages in a § 1983 action due to plaintiffs'

failure to prove compensable injury). We remand the verdict in favor of Wheeler

with directions that the trial court enter a remittitur order for acceptance of a

judgment of $1 in nominal damages against Fogarty and $1 in nominal damages

against Fritz.

3

As to the remaining individual plaintiffs, the jury awarded compensatory

damages ranging from $450,000 (Cynthia Majors) to $1,350,000 (Neal and

Nancy Thrift, individually).(20) With the

exception of the Cynthia Majors award,

all other individual plaintiffs were awarded at least $900,000. Although all of

those awards are supported by at least some evidence that the plaintiff receiving

the award suffered emotional distress, we conclude these awards are so excessive

as to shock the judicial conscience, and that remittitur is appropriate. As stated

supra, our discretion to review jury awards is limited, and our approach is

necessarily deferential. Nevertheless, even recognizing the unusual

circumstances of this case and the threat defendants posed to plaintiffs'

livelihoods, the jury's awards to the remaining individual plaintiffs so far outpace

emotional damages awards sanctioned in this and other circuits that we are

compelled to order remittitur.

There is precedent in this circuit for an appellate panel to actually set the

amount of the remittitur. See Malandris, 703 F.2d at 1178; see also 11

Wright et

al., Federal Practice and Procedure: Civil 2d § 2820 ("If the appellate court

concludes that the verdict is excessive, it need not necessarily reverse and order a

new trial. It may give plaintiff an alternative by ordering a new trial unless

plaintiff will consent to a remittitur in a specified amount."). That is the

resolution sought by plaintiffs in the event we were to reinstate some or all of the

compensatory damages awarded at the first trial. We deny that request. Notwithstanding our authority to do so, we are reluctant to invade the

province of the trial court in setting a remittitur amount, as the panel did in

Malandris. The district court has heard all of the evidence, and is in a better

position to select the amount of an appropriate remittitur than is this panel. A

jury has twice awarded compensatory damages to the individual plaintiffs, and

the district court has heard all of that evidence. Having reviewed the record,

which is more than 16,000 pages in length, we are convinced that the amount of

remittitur should not be so small as to amount to no award at all, nor that the

reduction as to any individual plaintiff be unreasonable. There are not many

cases in this circuit to guide the district court on this point, but we do note that

the panel's reduction in Malandris was two-thirds.

Yet we must qualify our holding with respect to two of the remaining

individual plaintiffs ­ Cynthia Majors and Mary Parkhurst. The only evidence

which could support an award of emotional damages in favor of Cynthia Majors

was her testimony regarding the Fogarty phone call, and John Majors' testimony

that defendants' retaliation had damaged their marriage. Moreover, it was

undisputed that Cynthia Majors played a minor role in the Association's lobbying

activities and had no role in the day-to-day operation of Morning Star. Her

threadbare testimony is quite similar to the plaintiff's testimony in Wulf. Like

the court in that case, "we agree with defendants that [although plaintiff's]

testimony and the evidence presented are not the most graphic and detailed

display of emotional and mental anguish and distress, we cannot conclude that

some award for such anguish and distress is unsupported by substantial

evidence." 883 F.2d at 875. Accordingly, the standard of reasonableness with

respect to the Cynthia Majors award may counsel a reduction greater than that in

Malandris.

We reach the same result with regard to the jury's emotional damages

award to Mary Parkhurst. She offered testimony that was tangential, at best, to

the issue of emotional distress: "Well, I have gray hair now. And it does make ­

it's very stressful. And I tell you, I feel like a little mouse backed off in a corner

with a big cat sitting up there grinning at me ready to pounce any time. That's

how we feel because of the threat that we feel. All the time we live with that

fear." Like Cynthia Majors' testimony, this evidence is simply too thin to

support a large award for emotional distress. Accordingly, the standard of

reasonableness with respect to the Mary Parkhurst award may also counsel a

reduction greater than that in Malandris. With respect to all individual plaintiffs

we hold, like the Malandris panel, that they are free to accept the remittitur

ordered by the district court or, in the alternative, to pursue a new trial as to all

issues, including liability. See 703 F.2d at 1178.

B

Following the jury's verdict in favor of all plaintiffs and against all

defendants on liability and compensatory damages, plaintiffs sought punitive

damages against all defendants in a second-stage proceeding. Evans, Nancy

Graves-Thrift, and John Majors testified during the punitive damages stage, as

did Brown, Fritz, Fogarty, and Mitchell. The jury subsequently awarded punitive

damages in the amount of $50,000 in favor of all individual plaintiffs against all

defendants, for a total punitive damages award of $1,350,000. Defendants

challenge these awards as unsupported by the evidence, but do not argue that the

amount of the awards constitutes a Due Process violation. See, e.g., State Farm

Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). The district court did not

mention the jury's punitive damages awards in the new trial order or in its July 9,

2003 order, but vacated these awards along with all others by granting defendants

a new trial.

Punitive damages are available in § 1983 actions, but the burden of proof

with respect to punitive damages is higher than that required to find liability.

Such damages are only available "when the defendant's conduct is shown to be

motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others. The focus must be on

whether the defendant's actions call for deterrence and punishment over and

above that provided by compensatory awards." Hardeman, 377 F.3d at 1121. As

with the other damages awards, we review the sufficiency of the evidence de

novo, and examine the evidence in the light most favorable to the plaintiffs.

Nieto v. Kapoor, 268 F.3d 1208, 1221 (10th Cir. 2001). We note, however, that

we are without the district court's views on the matter.

Nevertheless, we are satisfied that a reasonable juror could conclude that

Fritz and Fogarty acted with "reckless or callous indifference," if not "evil

motive or intent," to the rights of the defendants. Hardeman, 377 F.3d at 1121.

Plaintiffs met with persistent hostility from Fritz and Fogarty, and were subject to

a wide variety of injuries in retaliation for their political activities. A reasonable

juror could conclude, based on the evidence before it, that Fogarty and Fritz

wanted to silence members of the Association, were embarrassed by their

lobbying efforts, and acted to starve them of Medicaid funding in an effort to put

them out of business. This type of behavior is the sort that is properly answered

by punitive damages, which act "to punish what has occurred and to deter its

repetition." Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1309 (10th Cir. 2003).

Although defendants cite to Fuerschbach v. Southwest Airlines Co., 439 F.3d

1197 (10th Cir. 2006) as analogous to the facts at issue here, we are

unconvinced. Defendants conduct in that case, which we described as a "joke

gone bad,"(21)

see id. 1200, is a far cry from defendants' conduct in this case.

Accordingly, we reinstate the punitive damages awarded at the first trial against

Fogarty and Fritz in favor of all plaintiffs.

C

Finally, we review whether the evidence was sufficient to support the

jury's award of compensatory damages to the corporate plaintiffs. These

damages amounted to $24 million ­ $6 million to SOFS, $6 million to Morning

Star, $6 million to Rustling Winds, $2 million to JCH, $2 million to DFS, and $2

million to Serenity Springs. As with the individual damages, liability was

allocated on a 60/30/10 basis between Fogarty, Fritz, and Brown. Total corporate

damages, as well as the allocation of damages between the corporate plaintiffs,

were consistent with plaintiffs' counsel's suggestion at closing. That request was

itself based, loosely, on McDaniel's testimony. McDaniel's corporate damages

calculation represented: (1) the difference between the average per unit

reimbursement rate paid to the plaintiff providers and all other private providers

during the relevant period, (2) multiplied by the average number of units billed

by all plaintiff providers per month, (3) multiplied by the number of months

between the beginning of plaintiffs' lobbying efforts and the filing of the

Rustling Winds lawsuit, (4) plus interest.

Before the district court, defendants argued that McDaniel's calculations

did not provide a plausible estimate of the profits lost as a result of defendants'

retaliation. This precise issue was at the heart of the district court's justification

for granting a new trial: "Here, plaintiffs made no effort to quantify the

economic losses of each corporate plaintiff." Evans v. Fogarty, No. CIV-01-0252-HE,

slip op. at 4 (W.D. Okla. Aug. 25, 2003). We agree that while

plaintiffs' evidence was sufficient for a jury to find liability for the corporate

plaintiffs against Fritz and Fogarty, their offering of proof as to the corporate

damages was woefully insufficient. Moreover, we agree with the district court

that remittitur is inappropriate as to the corporate damages, "there being no

apparent basis in the evidence for setting some lesser amount of damages." Id. at

9.

Recognizing that there have already been two trials addressing damages in

this case, we nevertheless conclude with great reluctance that a third trial on

damages is necessary. Given that the juries in the first and second trials reached

different conclusions as to defendants' liability and as to which plaintiffs

prevailed, the corporate damages awards from the second trial are not applicable

to the first. See Wilson v. Burlington N. R.R. Co., 804 F.2d 607 (10th Cir.

1986)

(reversing grant of new trial and reinstating first jury's verdict where second jury

reached different conclusions as to liability of parties); Diamond Shamrock Corp.

v. Zinke & Trumbo, Ltd., 791 F.2d 1416 (10th Cir. 1986) (reinstating first jury's

verdict where prevailing parties differed). We therefore exercise our authority to

order a new trial limited solely to corporate damages. See Malandris, 703 F.2d

at

1168.

Plaintiffs' arguments in favor of reinstatement of the corporate damages

awards are unpersuasive. They correctly identify precedent establishing that we

do not demand precision in our review of a jury's award for economic damages.

See, e.g., Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1242 (10th Cir. 2004)

(upholding an award for future medical expenses that was "not based on specific

and substantial evidence"); Fiedler v. McKea Corp., 605 F.2d 542, 547 (10th Cir.

1979) ("[M]athematical exactness is not required."). Yet McDaniel's economic

loss calculation was not simply imprecise ­ rather, it had the air of fantasy.

We reemphasize that "[t]he purpose of § 1983 damages is to provide

compensation for injuries caused by the violation of a plaintiff's legal rights. No

compensatory damages may be awarded absent proof of actual injury." Jolivet v.

Deland, 966 F.2d 573, 576 (10th Cir. 1992) (citation omitted). "Although

damages for lost business opportunities need not be supported by mathematical

certainty, they must be based on reasonable proof. Amounts that are speculative,

remote, imaginary, or impossible of ascertainment are not recoverable."

Fitzgerald, 68 F.3d at 1264 (quotation omitted). In order for a juror to accept

McDaniel's lost profits calculation, she would have to make a series of

outlandish assumptions that find little support in the record. Namely, she would

have to find not merely that the disparity evidence was sufficient to show

retaliation, but that it accurately represented the degree of injury to the corporate

providers (i.e., that providers serviced identical patient populations and that no

disparity existed prior to 1999). In addition, she would have to find that the

reimbursement gap constituted pure lost profit to every corporate plaintiff ­ in

other words, she would have to find that corporate plaintiffs did not scale back

their operations at all due to reduced approvals. Finally, she would have to find

that the allocation between corporate providers accurately reflected the lost

profits as to each.

Although there were a few bits of evidence in the record that spoke to

these questions, they were not sufficient to render McDaniel's economic loss

estimate anything but "speculative, remote, imaginary, or impossible of

ascertainment." Id. Accordingly, a new trial is required to ascertain the

appropriate measure of damages as to each corporate provider.

V

After entering judgment following the second trial, the district court

awarded attorney fees and costs to certain plaintiffs against Fogarty and Brown.

All parties now appeal that award. As discussed at length supra, we have

concluded that the district court abused its discretion in granting defendants'

motion for a new trial, and have reinstated the verdict from the first trial as to

Fritz and Fogarty. That reinstated verdict differs substantially from the judgment

entered following the second trial with respect to both liability and damages. In

particular, we have dismissed all claims against Brown, such that Neal and Nancy

Thrift are no longer prevailing parties against her pursuant to 42 U.S.C. 1988(b). Given these discrepancies, we conclude that reconsideration of the

fee award is necessary, and that it would unduly prejudice the parties if we were

to decide the fee appeals on their merits. See Williams v. Trader Publ'g Co.,

218

F.3d 481, 488 (5th Cir. 2000) (vacating and remanding attorneys' fees when

reversal of punitive damages reduced total judgment by approximately 40

percent); Copper v. City of Fargo, 184 F.3d 994, 998 (8th Cir. 1999) (enforcing

judgment rendered in first trial and remanding for determination of attorneys'

fees); Bunch v. Bullard, 795 F.2d 384, 399-400 (5th Cir. 1986) (vacating and

remanding when court reversed judgment as to certain prevailing plaintiffs); cf.

O'Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001) (reinstating verdict

from first trial but upholding award of attorneys' fees from second trial when

single plaintiff prevailed against defendant in both trials). Accordingly, we

vacate the award and remand to the district court for a determination of

appropriate fees in light of our partial reinstatement of the first trial verdict.

VI

We REVERSE the district court's grant of a new trial,

REINSTATE the

first trial verdict as to defendants Fritz and Fogarty, and REMAND for

remittitur

of certain individual damages awarded at the first trial as described in Part IV

supra. We REMAND the corporate damages awards for a new trial

limited

solely to damages. We REVERSE the district court's denial of JMOL to

Brown

following the first trial, and REMAND with instructions to

DISMISS. We also

REVERSE the district court's award of partial fees and costs under 42 U.S.C. §

1988(b) and REMAND for reconsideration of the award in accordance with

this

disposition. All pending motions are DENIED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. This court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. Individual plaintiffs include: Alfred

Milton Evans, John Majors, Cynthia

Majors, Joel Holcomb, Neal Thrift, Nancy Graves-Thrift, Leroy Wheeler, Charles

Parkhurst, and Mary Parkhurst. Corporate plaintiffs include: Southeastern

Oklahoma Family Services, Inc. ("SOFS"), Morning Star Mental Health Services,

Inc. ("Morning Star"), JCH, Inc., Rustling Winds, Inc., Serenity Springs Mental

Health Services, L.L.C., and Diversified Family Services, Inc. ("DFS").

2. OHCA overspent the behavioral health

budget line item by more than one

hundred percent between 1996 and 1998

3. Some knowledge of OHCA's

reimbursement procedures is a predicate to

understanding plaintiffs' claims. Private providers and CMHCs were reimbursed

on the basis of "units" of services provided to individual patients. Beginning

in

1996, and in response to rising expenditures, each private provider was required

to submit a treatment plan to the Oklahoma Foundation for Medical Quality

("OFMQ"), an independent, non-profit foundation; CMHCs were not subject to

preapproval of treatment plans. OFMQ's primary responsibility is to vet

individual treatment plans under a set of objective "medical necessity" criteria.

Plans were approved on the basis of an authorized number of units, each of

which represented a certain amount of a specific type of therapy or rehabilitation.

Units were not priced uniformly across therapies ­ for example, the

reimbursement rate for a unit of individual counseling was $27.23 during the

relevant period as against $5.63 for a unit of group rehabilitation. Total

reimbursement for each patient depended on the number and type of units OFMQ

approved (and on whether the provider in fact billed all approved units for each

patient).

4. The court granted injunctive relief in that

case, preventing the termination

of SOFS' Medicaid contract. We affirmed. See Evans v.

Fogarty, 44 F. App'x

924 (10th Cir. 2002).

5. Several parties in the Rustling Winds

litigation are no longer part of this

case. Various original plaintiffs have dropped out and plaintiffs' claims against

OFMQ were later dismissed. Mitchell, and a subsequently added defendant, Jana

Webb, were granted judgment as a matter of law ("JMOL") at trial. Neither of

those orders is before us on appeal

6. Pre-consolidation, the Evans and Rustling

Winds district courts separately

granted defendants' motion to dismiss as to all claims other than plaintiffs' First

Amendment retaliation claim.

7. Defendants moved for JMOL under Rule

50(a) at the close of plaintiffs'

case. Although the district court denied those motions as to Fritz, Fogarty, and

Brown at that time, there is some ambiguity in the record as to whether it allowed

supplemental briefing on those motions post-trial, or considered the post-verdict

motions solely under Rule 50(b).

8. Defendants failed to raise an affirmative

defense of qualified immunity in

the Final Pretrial Report before the first trial, or their motions for JMOL before

or after the first trial. Brown alone raised the defense of qualified immunity in

her post-trial motion for JMOL.

9. Government officials sued for First

Amendment retaliation typically

assert the affirmative defense of qualified immunity, in which case plaintiffs must

also prove that "the legal norms allegedly violated by the defendant were clearly

established at the time of the challenged actions." Mitchell v. Forsyth, 472 U.S.

511, 528 (1985); see also Perez, 421 F.3d at 1131. In this case, defendants

failed

to properly raise a qualified immunity defense in advance of the first trial. Pre-consolidation,

defendants moved under Fed. R. Civ. P. 12(b)(6) to dismiss both

the Rustling Winds and Evans lawsuits, raising qualified immunity in those

motions. Those motions were denied, and defendants then failed to assert

qualified immunity in their motions for summary judgment, the pretrial order, or

in their oral motions for JMOL at the close of the plaintiffs' case. Under these

circumstances, we deem the defense waived. "[C]laims, issues, defenses, or

theories of damages not included in the pretrial order are waived even if they

appeared in the [pleadings]." Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir.

2002); cf. Maestas v. Lujan, 351 F.3d 1001, 1010 (10th Cir. 2003) (holding

defense not waived when defendant "raised qualified immunity as an affirmative

defense in his Answer, referenced the defense in the Pretrial Order, and gave

testimony on the matter at trial"). Although the defense of qualified immunity

provides public officials important protection from baseless and harassing

lawsuits, it is not a parachute to be deployed only when the plane has run out of

fuel. Defendants must diligently raise the defense during pretrial proceedings

and ensure it is included in the pretrial order. "To find otherwise is to invite

strategic use of the defense by defendants who stand to benefit from delay."

Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 668 (1st Cir. 1996). Because we

reinstate portions of the first jury verdict, we need not address defendants'

argument that the district court abused its discretion in denying their request to

assert qualified immunity at the second trial.

10. We would normally evaluate

plaintiffs' retaliation claim under the

Pickering/Connick balancing test, which is applicable to parties who have a

contractual relationship with the government. See Bd. of County Comm'rs v.

Umbehr, 518 U.S. 668, 673-78 (1996). In assessing whether a public employer

has impermissibly infringed on an employee's speech rights, we apply the

following test: "(1) whether the speech touches on a matter of public concern,

(2) whether the employee's interest in commenting on matters of public concern

outweighs the interest of the state in promoting the efficiency of the public

service it performs through its employees, and (3) whether the protected speech

was a substantial or motivating factor behind the adverse employment decision . .

. . If these three factors are met, (4) the burden shifts to the employer to establish

that it would have reached the same decision in the absence of the protected

conduct." Burns v. Bd. of County Comm'rs, 330 F.3d 1275, 1286 n.7 (10th Cir.

2003). We applied this test when considering an earlier appeal from some of the

parties in this case. See Evans v. Fogarty, 44 F. App'x 924, 929 (10th Cir.

2002). However, because the juries at both trials were instructed (albeit

impermissibly, with the parties' consent) on the elements required to prove a

First Amendment retaliation claim outside the public employment context, we

apply those elements in this case.

11. Data from July through December

2000, and February 2001 was

unavailable and was not provided.

12. This figure does not include the

premium paid CMHCs to cover

administrative costs.

13. The concerns addressed in the July 9,

2003 order include: (1) variance

in reimbursement rates depending on the service provided, (2) lack of evidence

showing plaintiff providers requested the same units as other providers, (3) lack

of evidence as to uniformity of patient populations, (4) lack of evidence that

approved units were in fact used/billed, (5) lack of "comparable statistical

evidence regarding the relative reimbursement rates for the period prior to

plaintiffs' political activities," and (6) evidence that disparities in reimbursement

rates were of concern to plaintiffs even before 1999. Evans v. Fogarty, No.

CIV-01-0252-HE, slip op. at 7 (W.D. Okla. July 9, 2003)

14. In many ways, comparing this case to

our decision in Butcher v. City of

McAlester, 956 F.2d 973 (10th Cir. 1992), is instructive. In that case we

reviewed the district court's denial of judgment notwithstanding the verdict to

several city employees in a § 1983 First Amendment retaliation suit brought by

members of a local firefighters' union. Defendants argued that much of the

evidence was circumstantial and speculative, and that little if any evidence went

to personal participation. Id. at 976-77. We upheld the judgment in favor of the

plaintiffs, noting that "in a § 1983 proceeding circumstantial evidence generally

plays a major role." Id. at 978. We further noted that the evidence,

circumstantial though it may have been, was set against a backdrop of "intense

emotional conflict between the City and Local 2284." Id. Similarly, in this case

there was ample evidence of a poisonous, long-running political battle between

plaintiffs and defendants, and that backdrop was insufficiently accounted for in

the district court's piecemeal treatment of plaintiffs' disparity evidence as well as

other evidence presented at trial.

15. Defendants argue on appeal that

Oklahoma's two-year statute of

limitations for § 1983 claims, see Okla. Stat. tit. 12, § 95, bars recovery on

the

basis of the Cynthia Majors call, because that call occurred in March 1999.

Because defendants did not raise this defense below, however, we consider it

waived. See Malandris v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 703 F.2d

1152, 1171-72 (10th Cir. 1981).

16. We take no position on whether the

terms "crooks" and "frauds," used in

this context, were in fact defamatory, as opposed to words of general

disparagement or abuse. We also note, for the sake of clarity, that the evidence is

ambiguous as to whether these remarks were attributed to Brown or Fogarty.

17. Plaintiffs argue that Brown waived her

challenge to the denial of JMOL

after the first trial by insufficiently specifying the grounds for JMOL in her Rule

50(a) motion. Although plaintiffs' response to Brown's motion for JMOL took

issue with Brown's testimony on many grounds, including her "flagrant disregard

for the truth and constant willingness to say anything to promote half truths or

non-truths," it says nothing in regard to preservation of this issue. Therefore

plaintiffs may not now argue waiver on the part of Brown, having waived this

objection themselves. See Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc.,

295 F.3d 1065, 1076 n.3 (10th Cir. 2002).

18. Both Fritz and Fogarty limit their

specific damages challenges to the

second trial verdict. Fogarty's entire argument in his principal brief with respect

to the damages awarded at the first trial is a paragraph addressing the propriety of

the new trial order, not the awards themselves. Fritz's argument on this point

in

her principal brief is similarly skeletal ­ she devotes all of four lines to the

matter, none of which preserve specific objections or mention specific

plaintiffs.

This would normally constitute waiver as to the damages awarded at the first

trial. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)

("Arguments inadequately briefed in the opening brief are waived.").

Nevertheless, in light of the unusual procedural posture of this case and the

similarity between the first and second trial damage awards, we will consider this

issue preserved. See Sussman v. Patterson, 108 F.3d 1206, 1210 (10th Cir.

1997)

(holding that the "general waiver rule is not absolute, . . . and we may depart

from it in our discretion") (alteration omitted).

19. Insofar as the district court found that

the allocation of individual

damages between the defendants raised an inference that passion or prejudice

infected the first trial verdict, we note that that allocation of liabilities does not

shock the conscience of this court upon review of the evidence.

20. These amounts are net of any damages

awarded against Brown.

21. In that case, the plaintiff's fellow

employees convinced two Albuquerque

police officers to conduct a mock arrest of plaintiff as a practical joke. Id. at

1201-02.

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