                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                  UNITED STATES COURT O F APPEALS
                                                                    August 22, 2007
                              TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                     Clerk of Court

ALFRED M ILTON EVANS, an individual;
SOU THEA STERN O KLA HO M A FAM ILY
SER VIC ES, IN C., a corporation; RUSTLING
W IN D S, IN C., an O klahoma corporation; M ORNING
STAR M ENTAL HEALTH SERVICES, INC., an
Oklahoma corporation; DIVER SIFIED FAM ILY
SERVICES, INC., an Oklahoma corporation;
SERENITY SPRING S M ENTAL HEA LTH
SER VIC ES, L.L.C ., an O klahoma corporation; JCH,
INC., an Oklahoma corporation; NEAL THRIFT, an
individual; NANCY GRAVES-THRIFT, an
individual; JOHN M AJO RS, an individual;
CY NTH IA M AJOR S, an individual; CH AR LES
PARK HU RST, an individual; M AR Y PARK HU RST,
an individual; LEROY W HEELER, an individual; and        Nos. 05-6106, 05-6109,
JO EL HOLCOM B, an individual,                             05-6110, 05-6112,
                                                          05-6122,05-6358, 05-
      Plaintiffs-Appellants/Cross-Appellees,                    6359, &
                                                                05-6361
v.

M ICHAEL FO GARTY, 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 H ealth Care Authority; and
DANA BROW N, in her individual capacity, as well
as in her official capacity as Legislative Liaison for
the Oklahoma Health Care Authority; TENK ILLER
BEHAVIORAL SERVICES INC., an Oklahoma
corporation; DAVETTA M CINTOSH, an individual,

      Defendants-Appellees/Cross-Appellants.
                           OR DER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, M cW ILLIAM S, Senior Circuit Judge, and
L UC ER O, 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. W e 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 REV ER SE.

                                          I

      During the period at issue, plaintiffs 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 M edicaid




      *
        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 M ilton Evans, John M ajors, Cynthia
M ajors, Joel Holcomb, Neal Thrift, Nancy Graves-Thrift, Leroy W heeler, Charles
Parkhurst, and M ary Parkhurst. Corporate plaintiffs include: Southeastern
Oklahoma Family Services, Inc. (“SOFS”), M orning Star M ental Health Services,
Inc. (“M orning Star”), JCH, Inc., Rustling W inds, Inc., Serenity Springs M ental
Health Services, L.L.C., and Diversified Family Services, Inc. (“DFS”).

                                          2
funding to cover the cost of providing these services, and their private clinics

were among many publicly funded facilities that offered such services. M edicaid

funding also flowed to state-affiliated community mental health centers

(“CM HCs”), which are typically paid more than private providers for the same

services.

      M ichael Fogarty, Terrie Fritz, and Dana Brown (“defendants”) were senior

officials of the Oklahoma H ealth Care Authority (“OHCA”), the agency charged

with administering M edicaid funds, during the relevant period.    Fogarty was

hired as the Oklahoma state M edicaid 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 M edicaid costs. At the same time, private

providers of behavioral and mental health services were competing with CM HCs

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. M edicaid

funds paid to these private providers grew from $3.1 million in 1994 to $22.1

million in 1997. Fogarty and other O HCA officials view ed the rise in overall




                                          3
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 M edicaid 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 w anted 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 M ental

Health Providers A ssociation (“A ssociation”). All individual plaintiffs w ere

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



       2
       OHCA overspent the behavioral health budget line item by more than one
hundred percent between 1996 and 1998

                                         4
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 M ay 2000.

W hen 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 CM HCs and private

providers. The Association unsuccessfully supported the bill as a means of

“leveling the playing field” between all providers of behavioral and mental




      3
        Some knowledge of OHCA’s reimbursement procedures is a predicate to
understanding plaintiffs’ claims. Private providers and CM HCs 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 M edical Quality
(“OFM Q”), an independent, non-profit foundation; CM HCs w ere not subject to
preapproval of treatment plans. OFM Q’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 OFM Q approved (and on
whether the provider in fact billed all approved units for each patient).

                                          5
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 M itchell, OHCA State

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

That suit alleged unlawful termination of SOFS’ M edicaid 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 W inds and the other plaintiffs filed a

similar § 1983 action against the defendants, M itchell, members of the OHCA

Board in their official capacities, and OFM Q. 5 The district court consolidated

those actions on M ay 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


      4
       The court granted injunctive relief in that case, preventing the termination
of SOFS’ M edicaid contract. W e affirmed. See Evans v. Fogarty, 44 F. App’x
924 (10th Cir. 2002).
      5
        Several parties in the Rustling W inds litigation are no longer part of this
case. Various original plaintiffs have dropped out and plaintiffs’ claims against
OFM Q were later dismissed. M itchell, and a subsequently added defendant, Jana
W ebb, were granted judgment as a matter of law (“JM OL”) at trial. Neither of
those orders is before us on appeal
      6
        Pre-consolidation, the Evans and Rustling W inds district courts separately
granted defendants’ motion to dismiss as to all claims other than plaintiffs’ First
                                                                      (continued...)

                                          6
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 U tilization R eview Subsystem (“SURS”) unit within OHCA,

which was responsible for auditing M edicaid recipients throughout the state.

Third, plaintiffs alleged that defendants directed OFM Q to reduce their

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

directed OFM Q 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

aw arded to the various individual plaintiffs. All compensatory damages w ere



      6
     (...continued)
Amendment retaliation claim.

                                          7
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

JM OL under Fed. R. Civ. P. 50(b). 7 On July 9, 2003, it entered an order denying

JM OL to Fogarty and Fritz as to all plaintiffs, and granting JM OL 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 JM OL and, in the alternative, a

new trial or remittitur. On A ugust 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-H E, slip op. at 3 (W .D. Okla. Aug. 25, 2003).




      7
       Defendants moved for JM OL 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
W ith 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. . . .
      W hile 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. W ith 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




                                           9
JM OL. 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. W hile 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. D ec. 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 M cDaniel. This was in contrast to the

first trial, at which M cDaniel 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




      8
         Defendants failed to raise an affirmative defense of qualified immunity in
the Final Pretrial Report before the first trial, or their motions for JM OL before or
after the first trial. Brown alone raised the defense of qualified immunity in her
post-trial motion for JM OL.

                                          10
$25,000 each. After a second bifurcated punitive damages proceeding, the jury

aw arded 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 JM OL, 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 JM OL 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, comm itted 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. M ore specifically, the court determined that the plaintiffs’ most fully-

developed theory of retaliation, that defendants directed OFM Q 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

                                          11
respect to the reimbursement disparity evidence: (1) a lack of evidence

suggesting Fogarty, Fritz, or Brown had control over OFM Q 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 CM HCs.

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

corporate providers and two individual plaintiffs – M ary 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. M cGraw, 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 JM OL to Fritz as to all plaintiffs, finding that the

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

                                          12
that applied to Fogarty extended to Fritz. Id. at 31-33. Finally, it denied JM OL

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 O ctober 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 JM OL. 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 JM OL 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. W e 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

                                          13
disposition.

                                          II

      Plaintiffs appeal from the district court’s grant of partial JM OL 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 JM OL 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 JM OL should be granted as to all plaintiffs. “W e review

de novo a district court’s denial of a motion for judgment as a matter of law.”

M arshall 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.” M ason v.

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

omitted).

      How ever, 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

                                          14
under 28 U.S.C. § 1291. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34

(1980). W e 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

M assillon, 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.

                                           15
      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,




      9
         Government officials sued for First Amendment retaliation typically assert
the affirmative defense of qualified immunity, in w hich case plaintiffs must also
prove that “the legal norms allegedly violated by the defendant were clearly
established at the time of the challenged actions.” M itchell 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 W inds 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 JM OL 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].” W ilson v. M uckala, 303 F.3d 1207, 1215 (10th Cir.
2002); cf. M aestas 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.

                                         16
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.

W orrell 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



       10
           W e 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). W e 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.

                                           17
defendants caused that injury, and (3) whether defendants’ actions were motivated

by plaintiffs’ protected activity. W orrell, 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.

W ith 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.

       A s w e w ade 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 otherw ise 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 w as so against the weight of the evidence as to

be unsupportable.” Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1443 (10th

                                           18
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) w as their

allegation that defendants directed OFM Q 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 CM HCs across the state. That data was

compiled and analyzed by Roger Dale M cDaniel, a certified public accountant

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

reimbursement data provided by Unisys Corporation, OFM Q’s fiscal agent, for

the months July 1999 through January 2002. 11



      11
           Data from July through December 2000, and February 2001 was
                                                                   (continued...)

                                          19
      For those months included in the Unisys reports, the data shows all units

approved for each provider funded through OFM Q. M cDaniel 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

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

providers w ere 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 CM HCs

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

considering the 30 percent additional reimbursement provided to CM HCs). 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 M cD aniel’s qualifications to offer expert

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

on cross-examination. M cDaniel 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



      11
       (...continued)
unavailable and was not provided.

                                         20
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 CM HCs ($393.17) 12 or other private providers

($384.59).

      Defendants moved for JM OL 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 CM HCs and
      private providers across the board. So w hat 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 Brow n, defendants did not mention the disparity evidence.       In

their motion for JM OL follow ing the verdict, defendants focused on plaintiffs’

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

any control over OFM Q approvals – but said little about the validity of the

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

JM OL or, alternatively, a new trial, defendants discussed the disparity evidence

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




      12
        This figure does not include the premium paid CM HCs to cover
administrative costs.

                                         21
disparity evidence could go toward retaliatory injury.

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

court addressed several weaknesses of the disparity evidence in substantially

greater detail than found in the defendants’ motions for JM OL. It then explicitly

referenced that discussion 13 in the new trial order, finding that the disparity

evidence was insufficient to support a First A mendment 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). W ith 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.




      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 w ere of concern to plaintiffs even before 1999. Evans v. Fogarty, No. C IV -
01-0252-HE, slip op. at 7 (W .D. Okla. July 9, 2003)

                                          22
      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 OFM Q 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 OFM Q to establish causation.

      Fogarty testified via deposition that “we directly control [OFM Q] 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 OFM Q. According to Parkhurst,

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

resolve the issue w ith a phone call to OFM Q. W hen asked whether Fogarty

indicated that “with a simple phone call to OFM Q he could control your units,”

                                          23
Parkhurst replied, “Yes. That’s what he told me.” In fact, the contract in place

between O HCA and OFM Q during this period provides for relatively close

supervision of the O FM Q 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 OFM Q 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 O FM Q’s independence with

regard to prior approval of reimbursement plans.

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

individual provider raised a concern, she would occasionally call OFM Q to

discuss what happened in that particular instance. OHCA Finance Director

Deborah Ogles testified that Fritz was the “go-between” between OFM Q and

senior executives at O H CA . OFM Q’s Outpatient Behavioral Health M anager,

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

that he touched base with her once per w eek. John M ajors testified that he

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

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

      M oreover, 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 OFM Q and overall outlays for behavioral and mental health services.

                                          24
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 OFM Q’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 OFM Q 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 CM HCs and other

private providers. Charles Parkhurst testified to fairly regular movement of

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

witnesses corroborated that testimony. Linda Coffman, a licensed professional

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

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

serviced by SO FS. M ichael Elder, an attorney and one-time consultant to OH CA ,



                                         25
testified that the services provided by CM HCs 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. M ary Parkhurst testified that she

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

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

“OFM Q got a little tougher to deal with.” John M ajors testified that in the Spring

of 1999, “when we began to really speak out and ask for accountability OFM Q

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. W e started getting a lot of requests for information.

W e got more technical denials. It turned into a nightmare.”

       Furthermore, there was at least some evidence that OHCA increased

                                         26
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 O HCA. 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 CA RF.

      Jurors could also have draw n the rational inference that plaintiff providers

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

W illiam 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 w ith

respect to the admittedly imperfect disparity evidence derived from the Unisys

data and testified to by M cDaniel. V iewing 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

                                          27
juror could also come to the opposite conclusion – that Fogarty and Fritz were

persistently hostile to the plaintiff providers, whom they view ed 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. 14

                                          B

      Plaintiffs argued that in addition to directing OFM Q 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




      14
         In many ways, comparing this case to our decision in Butcher v. City of
M cA lester, 956 F.2d 973 (10th Cir. 1992), is instructive. In that case we
review ed 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. W e upheld the judgment in favor of the
plaintiffs, noting that “in a § 1983 proceeding circumstantial evidence generally
plays a major role.” Id. at 978. W e 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.

                                         28
numerous M edicaid-funded facilities, including those providing behavioral and

mental health services. W ebb, SURS’s D irector, 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. W ebb, Fritz, and

Fogarty all denied that any audits performed by the SURS unit w ere 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-H E, 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 M ary Parkhurst and their facility, DFS, as against Fritz based on the

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

team in M arch 2002, and that she received an unusually large recoupment request,

                                           29
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.

       W ith 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 w as hit w ith tw o 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 SO FS, 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 M ajors 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

                                         30
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 M arch 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. How ever, 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-H E, slip op. at 8-9 (W .D. Okla. July 9, 2003).

W e 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

M ajors, and W heeler, testified that none of the supplemental appropriation was



                                         31
allocated to their facilities via restoration of units previously cut. They alleged

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

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

by a letter from State Senator Cal H obson 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
      [OFM Q] 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.

      W ith respect to causation, W heeler testified that Fogarty assured him he

would look into the restoration of units at W heeler’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 OFM Q approvals

to private providers, a reasonable juror could find against Fritz and Fogarty on the

basis of this evidence.



                                          32
                                           D

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

claimed that SOFS’ M edicaid 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 A ct. 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 SO FS. Evans hid his involvement with SO FS in violation of

both OHCA rules and his M edicaid 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 w ere irritating to Fritz and Fogarty. M ultiple

communications reveal the battle Evans waged with OHCA and several OHCA

documents demonstrate that OHCA paid close attention to SO FS. Furthermore,

                                           33
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 comm ents made to individual

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

deny JM OL 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). W ithout reaching the question of whether we find

Suarez persuasive, w e discern no basis in the record for holding Fogarty or Brow n

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

                                          34
people can’t help you. W e 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

M ajors (testimony which M ajors corroborated). Charles Parkhurst testified that

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

“W hat can we do to make [House Bill] 1075 go away?” Cynthia M ajors testified

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

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

fraudulent billing.” Gerrol Adkins, Cynthia M ajors’ father, corroborated her

testimony on this point. John M ajors 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, “D o 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

                                         35
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) (“W e have never found a First A mendment 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.” W orrell, 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. W hile 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 M ajors. W hile we are skeptical that the phone call between

Fogarty and Cynthia M ajors could be construed as an “imminent [threat of]

adverse regulatory action,” see Blankenship v. M anchin, 471 F.3d 523, 529 (4th

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

                                           36
Fogarty with respect to Cynthia M ajors and her facility, M orning Star, based on

the other alleged patterns of retaliation. See Part III.A supra. Cynthia M ajors’

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

      A ccordingly, w e conclude it was error for the district court to deny JM O L

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. 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 OFM Q or the SURS unit, or that she


      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 M ajors call, because that call occurred in M arch 1999.
Because defendants did not raise this defense below, however, we consider it
waived. See M alandris v. M errill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d
1152, 1171-72 (10th Cir. 1981).
      16
         W e 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. W e also note, for the sake of clarity, that the evidence is
ambiguous as to whether these remarks were attributed to Brown or Fogarty.

                                          37
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. M ountain 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


           17
         Plaintiffs argue that B rown waived her challenge to the denial of JM O L
after the first trial by insufficiently specifying the grounds for JM OL in her Rule
50(a) motion. Although plaintiffs’ response to Brown’s motion for JM OL took
issue with Brow n’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. M gmt., 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. W al-M art Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)
                                                                          (continued...)

                                              38
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 w ith 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



      18
         (...continued)
(“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.

                                           39
determination of the amount of damages is inviolate.” Id. (quotation and

alteration omitted). W hen 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 M alandris, 703 F.2d at 1168.

W ith 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 aw arded 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’ M edicaid

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.

M oreover, 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

                                           40
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. W ater Dist. No. 1, 41

F.3d 1417, 1420 (10th Cir. 1994) (denying emotional damages w hen 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 W ulf v. City of W ichita, 883 F.2d 842

(10th Cir. 1989), set a $50,000 “guidepost” for emotional distress damages, that

conclusion misreads our holding. In W ulf 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 W ulf

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

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

compensation in cases involving constitutional rights should not be approached in

                                         41
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. M CI 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 W heeler $177,000 in compensatory damages against

Fogarty and $88,500 in compensatory damages against Fritz. This award finds no

basis in the record. W heeler 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, W heeler 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). W e remand the verdict in favor of W heeler 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 aw arded compensatory

                                          42
damages ranging from $450,000 (Cynthia M ajors) to $1,350,000 (Neal and Nancy

Thrift, individually). 20 W ith the exception of the Cynthia M ajors 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 M alandris, 703 F.2d at 1178; see also 11 W right 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




      20
           These amounts are net of any damages awarded against Brown.

                                          43
compensatory damages awarded at the first trial. W e 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

M alandris. 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 review ed 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 M alandris was two-thirds.

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

individual plaintiffs – Cynthia M ajors and M ary Parkhurst. The only evidence

which could support an award of emotional damages in favor of Cynthia M ajors

was her testimony regarding the Fogarty phone call, and John M ajors’ testimony

that defendants’ retaliation had damaged their marriage. M oreover, it was

undisputed that Cynthia M ajors played a minor role in the Association’s lobbying

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

threadbare testimony is quite similar to the plaintiff’s testimony in W ulf. Like

the court in that case, “we agree with defendants that [although plaintiff’s]

                                          44
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 M ajors award may counsel a reduction greater than that in M alandris.

      W e reach the same result with regard to the jury’s emotional damages

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

the issue of emotional distress: “W ell, 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 C ynthia M ajors’ testimony, this evidence is simply too thin to support

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

with respect to the M ary Parkhurst award may also counsel a reduction greater

than that in M alandris. W ith respect to all individual plaintiffs we hold, like the

M alandris 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

                                           45
damages against all defendants in a second-stage proceeding. Evans, Nancy

Graves-Thrift, and John M ajors testified during the punitive damages stage, as did

Brown, Fritz, Fogarty, and M itchell. 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 D ue Process violation. See, e.g., State Farm

M ut. 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. A s

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). W e note, however, that

                                         46
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 M edicaid 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, w e

reinstate the punitive damages awarded at the first trial against Fogarty and Fritz

in favor of all plaintiffs.




       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.

                                           47
                                           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 SO FS, $6 million to M orning Star, $6

million to Rustling W inds, $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 w as itself

based, loosely, on M cDaniel’s testimony. M cDaniel’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 W inds

law suit, (4) plus interest.

       Before the district court, defendants argued that M cDaniel’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

                                          48
op. at 4 (W .D. Okla. Aug. 25, 2003). W e 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 w as w oefully

insufficient. M oreover, 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 W ilson 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 w here prevailing parties differed). W e therefore exercise our authority to

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

1168.

        Plaintiffs’ arguments in favor of reinstatement of the corporate damages

aw ards are unpersuasive. They correctly identify precedent establishing that w e

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

                                           49
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. M cK ea Corp., 605 F.2d 542, 547 (10th Cir.

1979) (“[M ]athematical exactness is not required.”). Y et M cDaniel’s economic

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

      W e reemphasize that “[t]he purpose of § 1983 damages is to provide

com pensation for injuries caused by the violation of a plaintiff’s legal rights. N o

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

M cDaniel’s lost profits calculation, she w ould 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

                                          50
all due to reduced approvals. Finally, she would have to find that the allocation

betw een 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 M cDaniel’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 W illiams v. Trader Publ’g Co., 218

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

                                          51
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

      W e REV ER SE the district court’s grant of a new trial, REINSTATE the

first trial verdict as to defendants Fritz and Fogarty, and REM AND for remittitur

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

supra. W e R EM A N D the corporate damages awards for a new trial limited solely

to damages. W e REV ER SE the district court’s denial of JM OL to Brown

following the first trial, and R EM AND with instructions to DISM ISS. W e also

REV ER SE the district court’s award of partial fees and costs under 42 U.S.C. §

1988(b) and R EM A N D for reconsideration of the award in accordance w ith this




                                           52
disposition. All pending motions are DENIED.


                                   ENTERED FOR THE COURT


                                   Carlos F. Lucero
                                   Circuit Judge




                                    53
