Case Document 369 Filed 10/04/19 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF 

DARYOUSH TAHA, CIVIL ACTION
Plaintiff, 
V.
BUCKS COUNTY no. 12-6867

BUCKS COUNTY CORRECTIONAL

  

FACILITY, 
Defendants. 3 - ILE 
,Clerk
. Bap. (31m
OPINION at, -

This certi?ed class action arises from a decision by Defendants - County

Correctional Facility and Bucks County in January 2011 to create an ?Inmate Lookup
Tool? (?the Through the 1LT, Defendants published information online about 66,799
individuals who had been held or incarcerated at various times over the course of decades at the
BCCF. One of the individuals whose information was published, Plaintiff Daryoush Taha, filed
this lawsuit on behalf of himself and all persons whose criminal history record information was
made available on the 1LT. He claimed that by publishing this information, Defendants violated
Criminal History Record Information Act (?the 18 Pa. C.S.A. 9101
et seq. The Court granted Plaintiff partial summary judgment on liability. At trial, the only issue
for the jury was whether Defendants willfully violated the CHRIA. See 18 Pa. C.S.A.

9183(b)(2) (?Exemplary and punitive damages of not less than $1,000 nor more than $10,000
shall be imposed for any violation of this chapter . . . found to be willful.?) (emphasis added). At
the close of evidence, the jury returned a verdict ?nding Defendants committed willful violations
and awarded each class member $1,000 in punitive damages.

Prior to the case going to the jury, Defendants had twice moved pursuant to Federal Rule

1

 

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of Civil Procedure 50 for judgment as a matter of law, which the Court denied in both instances.
Presently before the Court are Defendants? post-trial motions, including a renewed Motion for
Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50, and a Motion for a
New Trial pursuant to Federal Rule of Civil Procedure 59, or, in the alternative, a Motion for
Remittitur. For the reasons that follow, Defendants? motions shall be denied.

1. FACTS

In September 1998, Plaintiff Taha was arrested by the Bensalem Police?Depar?nent and
transported to the BCCF, where he was charged with harassment, disorderly and
resisting arrest. His photo was taken. lie was released the following day aA, eventually, the
Court of Common Pleas of Bucks County ordered the Clerk of Courts of Bucks County, the
Bucks County District Attorney, the district court, and the arresting agency to expunge Plaintiff?s
?arrest and other criminal records.? See Taha v. Bucks County, 2016 WL 2345998, at *1 (ED.
Pa. May 4, 2016) (?Take 

In 2008, Defendants created the ILT. In January 201 1, Defendants launched the
enhanced version of the 1LT at issue in this case??an interact-accessible and searchable database
that included information about ?individuals who had been held or incarcerated at the BCCF
from 1938 onward, a total of 66,799 peeple.? Take v. County ofBarcks, 862 F.3d 292, 297 (3d
Cir. 201?) (?Take HI Defendants made public through the internet information about the
various class members, including name, race, weight, hair and color, arrest dates, arrest
charges, and where available, the Federal Bureau of Investigation numbers numbers?) and

state fingerprint identi?cation numbers (?State ID numbers"). Idl

 

1 The decisron to publish such information on the internet was a vane-face from Defendants' histor1cal practice.
Prior to the ImplementaImn of the 1LT, Defendants stored inmates' paper records In a secure area with criminal
history record information kept "under lock and key." Only authorized persons had access to inmate records.
Defendants ensured that con?dential inmate paper records were not released to the media. The Department of

2

 

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Harris Gubernick was the Director of the Bucks County Department of Corrections from
2002 until February 201 l, which spans the time when the 1LT was ?rst created and when the
enhanced version with additional information and photographs was introduced. At trial,
Gubernick testi?ed that he had little familiarity with the CHRIA beyond his training for
certi?cation and that he delegated ?[t]he planning and the implementation" of the 1LT to his
subordinate, Clarke Fulton. Fulton was the Bucks County Department of Corrections? Captain
of Administrative Affairs and was charged with overseeing software applications, assisting in
litigation defense, and implementing the Despite Fulton?s job description, he testified that
Gubernick made the final decisions affecting the scope of the data posted on the 1LT.
Furthennore, he testified that he considered Gubernick more knowledgeable than he and that
Gubernick ?had a longer experience with the law." Each man thus indicated the other
was the decisionmaker regarding the 1LT.

The authoritative guide to the CHRIA is the Attorney General's Criminal
History Record Information Act Handbook (?the Handbook"), which Defendants? witnesses
sometimes referred to as ?the Bible.? The trial was infused with di5putes as to what falls within
the de?nition of ?criminal history record information" for the purposes of the CHRIA. In their
post?trial brie?ng, Defendants rely on Chart 9 of the Handbook, which describes Section 9122 of
the CHRIA, to justify their reading of the term. But neither Fulton nor Gubemick consulted the
Handbook while implementing the Fulton last read the Handbook during his training in
2003, eight years before the enhanced ILT was rolled out, and Gubernick never consulted the
Handbook at all regarding compliance with the CHRIA. Gubernick also testi?ed that he relied

on Section 9104 of the HRIA to support his conclusion that "criminal history record

 

Corrections had post orders? standard operating procedures?for keeping physical records, but never updated them
to encompass electronic records

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information? was information from a rap sheet and that charge information from court
documents did not constitute criminal history record information. He acknowledged, however,
that the term ?rap sheet? does not appear in the statute, and he never sought clari?cation to
con?rm his understanding was correct.

The Commonwealth Law Enforcement Assistance Network is a database
containing criminal record information, which is maintained by the state police for law
enforcement purposes. Information on CLEAN, including FBI and State ID numbers that
identify individuals, is classified as confidential, and Defendants knew that CLEAN information
was meant to be confidential. Indeed, Fulton received Justice Network 
training, which discussed the careless use of CLEAN information.

Fulton was the JNET Terminal Agency Coordinator and as such, he had
access to the JTAC training manual. In 2008, Fulton inquired of a corporal with the
State Police as to whether posting the FBI and State ID numbers on the ILT was
permissible, and was told that it ?might be??an answer which Fulton testi?ed raised ?some
question in my mind.? Fulton then consulted the JTAC training manual, which ?did not
speak . . . directly in terms of dissemination? but did say that ?information on the CLEAN
network is considered confidential.? He interpreted this to mean State ID and FBI numbers
?were not protected? and made no further effort to investigate whether they could be
disseminated.

Gubernick and Fulton met periodically with what they referred to as the Criminal Justice
Advisory Board which included representatives from the district attorney, the public
defender, county administration, and the Department of Corrections, among others, from Bucks

County and other counties. There was no testimony presented regarding the mission or

 

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whether it was within the group?s purview to advise on the appropriate use of criminal history
record information. Gubernick testi?ed that no one at CJAB raised any ?ags about posting the
data on the internet because the 1LT issue ?was never raised by anyone." At the January 201 1
CJAB meeting, ?no one mentioned" the privacy of the 637,000 people who interacted with the
BCCF between 1938 and 2011.

Gubernick testi?ed that prior to launching the Bucks County 1LT, he analyzed the ILTs
of other counties?Montgomery and ?possibly? Fayette and Berks. He clicked on the home
pages and was not able to click through to the rest of the counties? sites. He did not contact
administrators in those counties. Defendants did not present testimony about whether they knew
in 201 1 whether other counties had received complaints or citations in connection with their
ILTs.

Defendants never sought legal advice in the course of implementing the ILT. Fulton
testi?ed that during his 35-year career, he only sought legal advice from the County Solicitor
Once when he became aware of a discrepancy concerning the Department of Corrections'
interpretation of a new law concerning DNA blood samples. He never had a
discussion with any lawyer regarding compliance with the CHRIA, and Gubemick never
instructed him to obtain an opinion from the County Solicitor. Indeed, during the 201 1 changes
to the 1LT, nobody sought guidance from the County Solicitor, the Attorney
General, or outside counsel.

Gubemick and Fulton both understood that privacy was an important part of the CHRIA.
Guberniclt testi?ed that he had concerns about publicly posting con?dential information. Fulton
testi?ed that he understood the need for the con?dentiality of inmate records and understood that

improper exposure of criminal history record information could ruin reputations. lie appreciated

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the dangers of that information falling into the hands of third-party operators like Mugshotscom
because his daughter?s mugshot had been disseminated on the internet in that manner, and, on
two occasions, she had asked him to pay to have her mugshot removed from the site, which he
did.

Fulton testified that in 2011, he did not believe that ?any of the information on [the] ILT
could be considered CH Gubernick was asked whether, in 201 l, he had ?any thought in
[his] mind at all that [he] could be possibly breaking the law?? He responded: ?Absolutely not."
But Fulton knew the 201 1 changes, which included adding photographs, to the were
?dramatic.? Gubernick also had concerns about publicly posting con?dential information. Yet
Defendants did nothing to customize the ILT to remove con?dential information. Fulton did not
reach out to the software vendor to ask about customizing the 1LT until March 2013. He was
also unaware of any inspection by any agency approving how Defendants handled the HRIA.

Nor did Defendants address requests to have outdated or incorrect information removed
from the ILT. One man, concerned that the posting of information about his father was
hurting his father?s ability to find ajob, emailed Bucks County about his father?s record,
explaining that it incorrectly stated that his father had spent a week incarcerated in 1995 when, in
fact, he had only spent one weekend. Fulton received the email but never responded to it.

11. PROCEDURAL HISTORY

Plaintiff sued on December 7, 2012, alleging that Defendants violated the CHRIA by
disseminating "criminal history record information," 18 Pa. C.S.A. 9102 (de?ning the term), in
a manner prohibited by the Act. Taho v. Bucks (foamy, 172 F. Supp.3d 867, 872 (ED. Pa. 2016)
(?Take I The Court held Defendants did violate the CHRIA, I'd, and subsequently certified a

class of ?all persons whose criminal history record information was made available on the BCCF

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Inmate Lookup Tool,? Taha v. Bucks County, 2016 WI. 2346000 (ED. Pa. May 4, 2016) (order);
see also Taha 11, 2016 WL 2345998, at The Third Circuit af?rmed the class certi?cation
decision, agreeing that ?the only remaining factual issue is whether defendants willfully violated
Taha 862 F.3d at 309, because punitive damages are required under the statute in a
minimum amount of $1,000 when a plaintiff shows that any violation of the CI-IRIA was willful,
see 18 Pa. C.S.A. 
LEGAL STANDARDS
A. Renewed Motion for Judgment as a Matter of Law
Federal Rule of Civil Procedure 50(b) provides that later than 28 days after the
entry of udgment . . . the movant may ?le a renewed motion for judgment as a matter of law and
may include an alternative or joint request for a new trial under Rule 59." The grant of a motion
for judgment as a matter of law after trial is warranted ?only if, viewing the evidence in the light
most favorable to the nonmovant and giving it the advantage of every fair and reasonable
inference, there is insuf?cient evidence from which a jury reasonably could ?nd liability.?
Lightning Lube, Inc. v. Witco Corp, 4 F.3d 1153, 1166 (3d Cir. 1993). In considering the
evidence, ?the court may not weigh the evidence, determine the credibility of witnesses, or
substitute its version of the facts for the jury?s version.? Id. ?Although judgment as a matter of
law should be granted sparingly, a scintilla of evidence is not enough to sustain a verdict . . . 
Id Ultimately, ?[t]he question is not whether there is literally no evidence supporting the party
against whom the motion is directed but whether there is evidence upon which the jury could

properly ?nd a verdict for that party.? Id. (internal quotation omitted). In other words, judgment

 

Defendants? motions for summary judgment were den1ed on the issues of whether state agencies may be held liable
for punitive damages under the CHRIA and whether under the CHRIA requires a subjective
understanding and reckless disregard. Taha Bucks County Pa 367 F. Supp.3d 320, 330 31 (ED. Pa. 2019)
(?Taha 

 

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as a matter of lawr should be granted if the record is ?critically de?cient of that minimum
quantum of evidence from which a jury might reasonably afford relief." Dawson v. 
Corn, 630 F.2d 950, 959 (3d Cir. 1980) (internal quotation omitted). Because the jury returned
a verdict in favor of the plaintiff, the Court in ruling onjudgment as a matter of law must
examine the record ?in a light most favorable to the plaintiff,? giving him the bene?t of all
reasonable inferences, ?even though contrary inferences might reasonably be drawn.? Dndtey v.
S. Jersey Metal, Inc, 555 F.2d 96, 101 (3d Cir. 1977).
B. Motion for New Trial

On motion, a court may grant a new trial ?for any reason fer which a new trial has
heretofore been granted in an action at law in federal court.? Fed. R. Civ. P. 
However, ?it should do so only when ?the great weight of the evidence cuts against the verdict
and . . . a miscarriage of justice would result if the verdict were to stand.? Leonard v. Sremrech
Int?t' Inc, 834 F.3d 326, 386 (3d Cir. 2016) (quoting Springer v. Henry, 435 F.3d 268, 274 (3d
Cir. 2006)). The power to grant a new trial is limited to ensure that a court ?does not substitute
its judgment of the facts and the credibility of the witnesses for that of the jury." See id. (quoting
Sonri v. CNA Ins. Cos, 88 F.3d 192, 201 (3d Cir. 1996)); Sheridan v. 13.1. DuPont de
Nemoars and Co, 100 F.3d 1061, 1076 (3d Cir. 1996) (en bane).

C. Motion for Remittitur

Under Rule 59(e), a party may seek alteration or amendment of the verdict. The Third
Circuit has explained that courts reduce damages awards in one of two circumstances, which are
often colloquially referred to as ?remittitur?: when a court reduces an award as excessive or
legally unsupported to satisfy constitutional due process concerns, and when it considers an

award unreasonable on the facts of the case at hand. Cortez v. Trans Union. LLC, 617'' F.3d 688,

 

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215?16 (3d Cir. 2010); Spence v. Bd. of Educ. of Christina Sch. Dist, 806 F.2d 1198., 1201 (3d
Cir. 1986). ?There must be a rational relationship between the speci?c injury sustained and the
amount awarded." Gambs v. Pueblo In: Inc, 323 F.2d 768, 773 (3d Cir. 198?). ?While a
district court has discretion in determining whether ajury?s verdict is excessive, it is undisputed
that the court may not vacate or reduce the award merely because it would have granted a lesser
amount ofdamages.? Mortar v. Everest Jemings. Inc, 833 F.2d 1223, 1230 (3d Cir. 1989).
IV. 

Underlying the analysis of each of these motions is a challenge by Defendants to the jury
instruction regarding the de?nition of?will?11ness." At trial, the jury was instructed, in relevant
part:

?Willful? does not mean that Defendants intended to violate the CHRIA law, or intended
to harm Mr. Taha or class members. It does not mean that Defendants acted with malice
or ill will. But it requires plaintiff to prove more than that Defendants were negligent or
careless or made an honest mistake.

A willful violation of the CHRIA law means that Defendants acted with reckless
diSregard or indifference to their legal obligations. A person has conmtitted a willful
violation for purposes of CHRIA if he or she acts with reckless disregard or indifference
to their legal obligations.

Plaintiff does not have to show that Defendants were aware their actions violated CHRIA
in order to prove reckless disregard or indifference in violating the law. Defendants
could have held a mistaken belief about CHRLA and still could have acted with reckless
disregard or indifference. The issue for you is whether, in the facts and circumstances of
this case, Defendants were reckless or indifferent in violating CHRIA.

In evaluating the jury instruction on willfulness, Defendants urge the Court to consider it
in tandem with the jury instruction regarding the amount of punitive damage, which was:

. . . you decide that the County willfully violated CHRJA, it is your job to set the
amount of punitive damages. The Act entitles the Plaintiff and each class member to a
sum of not less than $1,000 nor more than $10,000 if you ?nd that the County?s violation
of CHRIA was willful.

 

3 Defendants use a footnote to object to a ?lack of claims administration process" and to seek input into such a
process The partles subsequently have agreed to meet and confer regarding how to move forward with
admnustering the claims.

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Rather CHRIA mandates or to put it another way requires imposition of these
statutory damages for any willful violationset the amount of damages between $1,000 and $10,000 based upon all
the evidence of this case. In determining an amount of punitive damages, you must
consider whether the County subjectively appreciated the risk of harm to individuals
protected by CHRJA. You must not consider whether and to what extent individual class
members were banned by the County?s violation.

The instructions addressed the only open issues at trial: (1) whether Defendants?
violations were ?willful"; and, (2) what amount of punitive damages should be imposed.

Defendants contend that the Court?s instruction to the jury on the de?nition of ?willful"
under the CHRIA was erroneous because it did not accurately re?ect the de finition of the word
under common law. They further argue that the Court?s use of subjective?
appreciation-of-the-risk language in its instruction on punitive damages but not in its instruction
on willfulness compounded the error in that it inappropriately suggested to thejury that a
subjective appreciation of the risk was not relevant to the threshold question of entitlement to
punitive damages.

A. Jury Instruction on Willfulness

?Under Rule 59(a), a District Court has the discretion to grant a new trial on claims of . . .
erroneous jury instructions when it ?nds that those errors are substantial.? Murray Ennis, 523
Fed. App?x 901, 902 (3d Cir. 2013). ?While jury instructions must fairly and adequately
submit[] the issues in the case to the jury, a trial judge has broad discretion concerning the
particular language used in ajury instruction.? Corp. v. Dow Corning Corp, 962 F.2d
1 119, 1124 (3d Cir. 1992) (internal citations and quotations omitted).

Defendants argue that with respect to thejury instruction on willfulness, the Court should
have instructed the jury that any award of damages to Plaintiffs was contingent upon Defendants

?possess?ngj subjective knowledge that [their] conduct could violate or, more

10

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speci?cally, that Defendants were ?subjectively aware that there was a risk that [their] conduct
could violate 

Here the question whether the jury instruction on willfulness was proper or not is
dependent upon the de?nition of ?willful? as used in the CHRIA. Statutory
Construction Act of 1972 provides that when interpreting a statutory phrase, a court must ?rst
look for the meaning of the statute?s word or term in that statute?s de?nitions, then in the
Statutory Construction Act, then a law dictionary and, ?nally, a standard dictionary, in that
order. [James V. Bureau of Professional and Occupational Affairs, State Real Estate
Commission, 204 A.3d 1019, 1024 (Pa. 2019). As set forth below, none of these
sources dictate Defendants? desired incorporation of a subjective awareness element into the
willfulness requirement.

The CHRIA statute does not contain a de?nition of the term ?willful.? And, neither does
Statutory Construction Act. See 1 Pa. .S.A 1991. Black?s Law Dictionary
sets forth a variety of de?nitions for ?willful,? on a continuum ranging from ?at least inexcusable
carelessness? to ?voluntary and intentional, but not necessarily malicious.? Black?s Law
Dictionary (1 1th ed. 2019). Merriam- Webster Dictionary de?nes the term as ?done deliberately;
intentiona Merriam-Webster?s Online Dictionary, 
webster.com/dictionary/willful (last visited on Sept. 26, 2019). These sources thus provide a

variety of meanings for the word ?willful? without a clear preference for one.

 

4 They reach this conclusron with reference to two cases, Brand Marketing Group LLC Intertek Testing Services,
NA Inc. 801 F.3d 347 (3d Cir. 2015) and Nace Faith Christian Academy, 2019 WL 1429575 (ED. Pa. Mar. 29,
2019), which relied on Brand Marketing, even though neither Brand Marketing nor Nace provide a de?nition of
w111fulness and Defendants recognize that these cases are distinguishable because they were brought under a
negllgence theory, and not pursuant to a statute. They nevertheless encourage the Court to import the
subjective awareness components of these cases into the ?will?.11? language of the HRIA. Defendants? rationale
for request 13 the Court?s Citation of Brand Marketing in Taha 1 V, 367 F. Supp 3d at 330. However, Brand? 3
inclusion there was a reference to Its citation by Plaintiffs in their brief, and the Court did not rely on it in reaching a
concluswn. Thus, Defendants? reliance on Brand Marketing and Nace here is unavaihng.

11

 

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Given that the prescribed procedure of the Statutory Construction Act does not lead to a
clear answer on the meaning of the word ?willful" in the CHRJA, the Court again turns to the
provisions of the Statutory Construction Act, which command that "the object of all
interpretation and construction of statutes is to ascertain and effectuate the intention of the
General Assembly" and provide that the intention of the General Assembly is ascertained by
considering, among other matters: (1) The occasion and necessity for the statute; (2) The
circumstances under which it was enacted; (3) The mischief to be remedied; (4) The object to be
attained; (5) The former law, if any, including other statutes upon the same or similar subjects;
(6) The consequences of a particular interpretation; (7) The contemporaneous legislative history;
and, (8) Legislative and administrative interpretations of such statute. See 1 Pa. C.S.A 1921(c).

The CHRIA, a 1978 act, was passed to ?establish a central repository for maintaining
criminal history records throughout the as was one of three
remaining states without ?some privacy and security legislation with respect to criminal justice
records.? Leg. Journal, House, Sept. 13, 1978, at 2824 2829. The preamble to the CIIRIA
re flects this intention:

An [a]ct [r]elating to criminal history record information; providing for the protection of

individual right to privacy and for the completeness and accuracy of, the control of

dissemination of, the establishment of guidelines for the security of, and provision for
quality control of criminal history record information; and providing for the right of
individuals to inspect, review and challenge the accuracy of such information . . . and
providing penalties for violations of this act.
19 RS. 1511?36, Act No. 305, 1274, Nov. 26, 1978. Together, this background
addresses factors (1) through (5).
1n the course of legislative debate in 1978, a representative asked whether the public

would have access to criminal history record information under the bill, and one of the

legislation?s sponsors, a representative, clarifi ed that the public would have access dockets

12

 

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and compilations kept in the normal course of business [but that tlhey do not have access today
to the central state police repository of criminal justice records and they do not have it under this
bill.? 1d. at 2827-28. The representative also addressed ?keeping the usual records, that are
available to the public and the press today, open to them and yet granting a degree of privacy and
security as to those other records that are compiled by the state police and local police
departments, but ensuring their accuracy . . . Id. at 2829. In 1990, during the course of a
debate on amending the senators again raised privacy concerns. One senator spoke at
length about his concerns with the government storing sensitive data: ?One of the guiding
principles in a democracy is when you have to err, you err on the side of individual rights, not
the government. Our forefathers founded this nation based on a right of privacy. There can be
no overriding factor to take that away from citizens in this country.? Leg. Journal, Senate, June
26, 1990, at 2291. This legislative history, which satisfies factor (7), does not resolve the
question of how to define willfulness, but it does provide a backdrop for how the HRIA should
be read.5

1With this backdrop but the absence of any clear guidance on how the word ?willful?
should be construed in the CHRIA, the Court ascertained the meaning of the legally technical
term by reference to case law. See Commonwealth Excler, 243 Pa. 155, 159 (1914). Before
trial, the Court predicted that the SUpreme Court would de?ne willfulness in the
CilRlA as a ?showing of reckless disregard or indifference." Tuba IV, 367 F. Supp.3d at 331.

At least One court has adopted this definition. Sea Long 12. Southeastern Pa.

Tramp. Alum, 201? WL 5652568, at *9 (Phila. Ct. Com. Pl. Jan. 1, 201?) (de?ning willfulness

 

Notably, the statute as enacted 1973 contained the same punitive damages provision ?pertnitting the imposition
of between $1,000 and $10,000 per willful violation?as the law does today. See 1978 Pa. Laws 1286. $1,000
would. of course, have been a much greater penalty 30 years age than it is today.

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as whether the defendant either knew its actions violated the CHRIA or showed reckless
disregard for their statutory duties, i e. as to whether their actions were prohibited by statute)
(citing McLaughlin v. Richland Shoe Co., 486 US. 128, 133 (1988) (same)). Thus, a defendant
has committed a ?willful? violation for purposes of the CIIRIA if he acted with ?reckless
disregard or indifference? to the fact that his action violated the statute. The Third Circuit
recently confirmed that a statutory violation is willful if there was a showing of ?reckless
disregard for the matter of whether its conduct was prohibited by the [statute].? Stone v. Troy
Constr., LLC, 935 F.3d 141, 150 (3d Cir. 2019) (quoting McLaughlin, 486 U.S. at 133). Neither
the Third Circuit?s opinion in Stone nor the Supreme Court?s opinion in McLaughlin suggest that
in a statutory violation context, a subjective awareness of the risk is a predicate to a ?nding of
willfulness. Nor have other Third Circuit decisions on statutory violations required an
?awareness of the risk? as a predicate for a ?nding of willfulness. See, Souryavong v.
Lackawanna 02., 872 F.3d 122, 126 (3d Cir. 2017) (showing a ?reckless disregard for the
matter? is suf?cient to constitute a willful violation); Martin v. Selker Bros, Inc 949 F.2d 1986,
1296 (3d Cir. 1991) (proof of ?evident indifference? toward the statute?s requirements suf?cient
to establish a willful violation).

For the reasons set forth above, the jury instructions ?fairly and adequately submit[ted]
the issues in the case to the jury,? Tigg, 962 F.2d at 1124, and Defendants? motion for a new trial
on this basis shall therefore be denied.

B. Jury Instruction on Punitive Damages

With respect to the jury instruction regarding punitive damages, Defendants do not

appear to be challenging the instruction itself. Rather, their point seems to be that the language

in the punitives instruction??you must consider whether the County subjectively appreciated

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the risk of harm to individuals protected by something like it, should also have
been included in the jury instruction on willfulness. In other words, they argue that by including
the language in the former, but not including it in the latter, the jury may have been led to
conclude that a subjective appreciation of the risk was not relevant to the threshold question of
whether the Defendants? actions were willful. But, if that was the case, that was exactly the
conclusion they should have reached because, as set forth above, it is the correct one.

Even if Defendants are challenging the punitives instructions, the argument has been
waived. While Defendants did make several objections to the jury instructions during the
charging conferences at trial, they failed to object to the inclusion of the ?subjective
appreciation" language in the punitive damages instruction at the proper time, as Federal Rule of
Civil Procedure 51(c) requires. See id. (?An objection is timely if (A) a party objects at the
opportunity provided under Rule or (B) a party was not informed of an instruction or
action on a request before that opportunity to object, and the party objects after
learning that the instruction or request will be, or has been, given or refused?); see also Lesende
v. Borrero, 752 F.3d 324, 335 (3d Cir. 2014) (objections to jury instructions ?must be both
cogent and speci?c to the alleged error?). Because Defendants waived this objection, Rule 51
only allows the Court to consider ?a plain error in the instructions . . . if the error affects
substantial rights.? Fed. R. Civ. P. see also ashauer v. New Jersey Transit Rail
Operations, Inc., 57 F.3d 1269, 1289 (3d Cir. 1995) (holding that an alleged error will meet the
plain error standard only if it ?is fundamental and highly prejudicial or if the instructions are
such that the jury is without adequate guidance on a fundamental question and our failure to

consider the error would result in a miscarriage of ustice? and noting that reversal for plain error

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?should only be invoked with extreme caution in the civil context?) (internal citations and
quotations omitted). As discussed above, the Court ?nds no such error here.

Even assuming the objection is not waived and the Court erred in instructing the jury,
?any error was harmless because it is highly probable that the error did not contribute to the
judgment." City Select Auto Sales v. David Randal! Assess, Inc, 885 F.3d 154, 163 n.5 (3d Cir.
2018) (internal quotation omitted). Having heard the evidence from both sides, a reasonable jury
could have chosen to credit Plaintiff?s evidence. See, a 53., id (?As the District Court noted,
Clemmer?s and Miley?s testimonies differed in significant ways. In ?nding in favor of Miley,
the jury necessarily rejected Clemmer?s testimony"). Moreover, the punitive damages charge
told the jury to award between $1,000 and $10,000 per willful violation, and including the
?subjective appreciation? language there may have contributed to the jury awarding the minimum
amount required under the statute.

Thus, inclusion of the ?subjective appreciation of the risk of harm" language in the
punitive damages instruction did not prejudice Defendants. In short, the charge, even if any
objection to it is not waived and even if erroneous, was harmless error.

C. Weight of the Evidence

Defendants assert that they are entitled to judgment as a matter of law or, in the
alternative, 3 new trial, because the trial record lacked evidence from which a jury might
reasonably conclude that Defendants committed a willful violation. Defendants? arguments are
addressed below.

i. Decisionmakers Did Not Realize That the ILTMight Violate the HRIA

Defendants argue that the decisionmakers did not realize the information available

through the 1LT could constitute ?criminal history record information? within the meaning of the

16

 

Case Document 369 Filed 10/04/19 Page 17 of 31

CHRIA. However, Defendants? lack of intent to violate the CHRIA is not relevant to the jury?s
determination of willfulness. As discussed above, see supra Section the instruction that
?Defendants could have held a mistaken belief about CHRIA and still could have acted with
reckless disregard or indifference? was proper.
ii. Decisionmakers Did Not Realize the Need to Seek Legal Advice

Defendants argue that Fulton testified that in 201 1 he did not believe that ?any of the
information on [the] ILT could be considered However, he also testi?ed that he
understood the need for the con?dentiality of inmate records and understood that improper
exposure of the CHRIA information could ruin reputations. Gubernick testi?ed that he had
concerns about publicly posting con?dential information.

Regardless, Fulton and Gubernick did not seek out textual authority or legal advice.
Fulton last read the CHRIA and the Handbook in 2003, and Gubernick never consulted the
Handbook to determine compliance with the CHRIA.6 Plaintiff?s expert Richard Subia testi?ed
that this violated acceptable standards for corrections professionals, because ?when you?re
dealing with con?dential information, that?s of utmost importance as it relates to information
practices.?

Subia further testi?ed that ?if you?re going to change the practice of providing
con?dential information from its current practice, it would be customary to ensure that you?re
not violating somebody?s privacy rights when you do that. You would get an opinion from a

legal person.? But, Fulton never had a discussion with any lawyer regarding compliance with

 

6 Defendants also argue that when the was launched, there was no authority to support a conclusron that the 1LT
might violate the CHRIA. Given Defendants? testimony that they did not seek out any authority or guidance, they
could not have known this to be the case, and thus cannot now use this argument to justify their decision-making.

l7

 

Case Document 369 Filed 10/04/19 Page 18 of 31

the CHRIA. During the 2011 changes to the ILT, nobody sought guidance from the County
Solicitor, the Attorney General, or outside counsel.

If credited by the jury, this body of testimony provides a suf?cient basis to conclude that
Defendants understood the need for con?dentiality and had concerns about publicly posting
con?dential information, but they forwent legal advice. A reasonable jury could conclude that
Defendants thus acted willfully in violation of their statutory obligations.

The Attorney General ?s Handbook Supported Defendants 
Understanding of the CHRIA

As a post hoc defense, Defendants quote selectively from the Handbook to argue that it
supports their understanding of CHRIA. However, both Fulton and Gubernick testi?ed that they
did not consult the Handbook before posting the information on the ILT to determine whether
they were in compliance with the CHRIA. Defendants cannot now use the Handbook to justify

their conduct.

iv. Other Criminal Justice Professionals Supported Defendants 
Understanding of the CHRIA

Defendants also argue that in meetings with criminal justice professionals, none of them
raised concerns about the legality. The testimony about these meetings was generalized,
and Defendants did not explore speci?cs about the meetings at trial. Defendants also claim that
they investigated and learned other counties had similar information on their ILTS, and none
were cited for violations. Although Gubernick reviewed other counties? websites, he
testi?ed that he did nothing more than go to two or three counties? home pages, and he did not
contact of?cials at any of those counties? prisons to question them about their ILTs.

Testimony regarding such a cursory review of other counties? practices could support a

jury?s ?nding that Defendants were recklessly indifferent to their statutory obligations.

18

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 19 of 31

v. Training Did Not Support the Conclusion that Defendants Might
Vioiate the CHEM

Finally, Defendants argue that Fulton?s and Gubernick's training did not suggest that the
information they were posting on the I LT would violate the CHRIA, particularly because they
contend that none of the inforrnation initially came from CLEAN or IN ET.

Defendants make this argument even with respect to the FBI and State ID numbers by
claiming they did not believe this information could violate the CHRIA. However, Defendants
knew that the State ID and FBI numbers came from the CLEAN Network and were to be kept
con?dential. Fulton testi?ed that when he consulted the State Police on whether
posting those numbers on the ILT was permissible, the answer he received was unclear at best.
Fulton then consulted the JTAC Training Manual, which ?did not speak . . . directly in terms of
dissemination" but did say that ?information on the CLEAN network is considered confidential.?
Fultoo interpreted this to mean the numbers were not protected and disseminated them without
consulting the Attorney General for further guidance.

Beyond the evidence described above, Plaintiff presented thejury with testimony that
Fulton knew the 2011 changes to the were ?dramatic"; Fulton and Gubernick both
understood that privacy was an important part of the Fulton understood the dangers of
criminal history information falling into the hands of Mugshotscom because his daughter?s
mugshot had been disseminated on the internet in that manner and he twice paid to have her
mugshot removed; and Fulton did not respond to at least one person?s inquiry to correct or
remove incorrect information on the 1LT about his father. In a renewed motion for judgment as a
matter of law where the plaintiff prevailed at trial, the trial record must be examined ?in a light
most favorable to the plaintiff Dudley, 555 F.2d at 101. Given this standard, if credited by the

jury, this body of evidence and testimony provides a suf?cient basis to conclude that Defendants

19

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 20 of 31

acted willfully. The record is not ?critically de?cient of that minimum quantum of evidence
from which a jury might reasonably afford relief.? Dawson v. 630 F.2d 950, 959
(3d Cir. l980). Therefore, Defendants' motion forjudgment as a matter of law shall be denied.

As an alternative to seeking judgment as a matter of law based on insuf?ciency of
evidence, Defendants also argue for a new trial, which as they note has a different standard of
review. See Wilson v. Philadelphia Der. Caz, 986 F. Supp. 282, 287 (ED. Pa. 1997) court
analyzing a motion for a new trial need not view the evidence in the light most favorable to the
verdict winner.") (citing Magee v. General Motors Corp, 213 F.2d 899, 900 (3d Cir. 1954)).
Defendants make no new arguments here, instead pointing to the arguments they made on the
weight of the evidence in seeking judgment as a matter of law. Even under this more lenient
standard, Defendants? arguments fail because they overlook the substantial amount of evidence
adduced during the trial that supported the jury?s verdict. See also Marra v. Phila. Hons. Auth,
497 F.3d 286, 309 n.18 (3d Cir. 2007) (granting a new trial based on the verdict being against the
weight of the evidence is ?extraordinary relief?). or the reasons discussed above Defendants
have not shown that the ?great weight of the evidence? is contrary to the verdict. Springer, 435
F.3d at 274.

D. Evidentiary Errors

Next, Defendants argue for a new trial by challenging four of the Court?s evidentiary
rulings: (1) allowing Plaintiff to present evidence and testimony related to expunged records; (2)
admitting evidence and testimony regarding FBI and State ID numbers; (3) limiting the scope of
the Defendants? expert witness?s testimony regarding the criminal justice community; and (4)
allowing Plaintiffs expert to testify to the nature and extent of the victims? harm as it related to

punitive damages. Each purported error will be considered in turn.

20

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 21 of 31

i. Admission ofExpungemenr Evidence

Over Defendants? objections, the Court allowed Plaintiff to present evidence and
testimony at trial related to eXpunged records, or rather Defendants? failure to eXpunge records
that a court order required to be expungcd. In a motion in iimine, Defendants eXpressed concern
that if such evidence Were permitted it would lead to thousands of mini?trials on class members?
expungements, thus creating individualized issues that are inappropriate for a class action. That
did not happen. Nevertheless, Defendants remain concerned that the introduction of the
evidence inappropriately introduced individualized inquiries into the trial. But, the natUre of the
harm to individual class members was not the purpose for which the evidence was introduced. It
was admitted as one factor for thejury to consider in evaluating whether Defendants? conduct
was recklessly indifferent and, accordingly, whether the willfulness requirement of the CHRIA
punitive damages section had been proved. As such, the Court ?nds no error in its admission.

ii. Admission of Evidence of BI and State ID Numbers

Defendants? argument that FBI and State ID numbers should not have been introduced
into evidence is premised on a similar rationale, is. that because Plaintiff Taha did not have an
FBI or a State ID number while other members of the class did, any discussion of the numbers
necessarily injected individualized inquiries into the trial. But this distinction did not warrant an
exclusion of the evidence. Defendants decided to publish FBI and State ID numbers as a matter
of course, a decision that was relevant to the question of whether they were recklessly indifferent
as to whether or not such publication would violate CHRIA. The fact that Taha himself did not
have these numbers (because he did not have a criminal history and, thus, had not been assigned
them) is of no consequence in that if he had been assigned numbers, they would have been put

up on the 1LT along with all of the other information about him.

21

 

Case Document 369 Filed 10/04/19 Page 22 of 31

Limitation of Defendants? Expert Witness Testimony

Next, Defendants argue that the Court erred in limiting the scope of their expert attorney,
Stephen Snook, to his ?personal understanding? of the CHRIA and not allowing him to testify as
to the views of the ?criminal justice community? regarding the CHRIA.

Snook?s testimony was a source of considerable argument both before and during trial.
At the close of expert discovery, Plaintiffs sought pursuant to Federal Rules of Evidence 702,
703, 403, and Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993), to strike in
its entirety Snook?s testimony. Defendants sought to use him as an expert on the 
criminal justice community?s statutory interpretation of the meaning of the term ?criminal
history record information? in the CHRIA. The Court denied the motion. Plaintiff, nevertheless,
persisted and, in a motion in limine ?led immediately prior to trial, particularized his concern
with Snook?s testimony. Speci?cally, he asked that Snook be precluded from testifying about:
1) legal opinions regarding whether the ILT of any county violated the (2) the
legislative history of the (3) any opinions based on what the criminal justice community
believed as to rap sheets, the of the CIIRIA or whether ILTS generally violated the
(4) whether counties other than Bucks County had ILTS and what those ILTs looked
like; and, (5) CIIRIA audits conducted on Bucks and other counties for the years 2014?16. The
Court granted the motion except insofar as it reserved for trial decisions on whether Snook could
offer expert Opinions about what the criminal justice community believed as to rap sheets
(whether or not they were covered by the CIIRIA), the scope of the CIIRIA, or whether the 1LT
violated the CHRIA.

At trial, Snook testi?ed that he did not consider himself an expert on the CIIRIA and had

not studied the statute in depth, upon which the Plaintiff objected once again to his testimony.

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Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 23 of 31

The Court ruled for Plaintiff, ?nding that any testimony regarding the views of unidentified
members of the criminal justice community regarding the CHRJA was inadmissible hearsay.

Defendants now argue that Snook?s opinions were offered to show the ?state of mind of
the criminal justice community." However, the state of mind exception to the hearsay rule
applies to a ?declarant's then existing state of mind,? see Fed. R. Evid. 803(3), and is not a
vehicle for aggregating a community?s opinions.

Defendants also rely on the language in Rule 703 of the Federal Rules of Evidence which
provides that: ?An expert may base an opinion on facts or data in the case that the expert has
been made aware of or personally observed. If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject, they need not be
admissible for the opiniOn to be admitted." Fed. R. iivid. 703. However, Defendants failed to
demonstrate that experts in Snook?s field use anonymous conversations as the basis for their
expert opinions. ?If the data underlying the expert?s opinion are so unreliable that no reasonable
expert could base an. opinion on them, the opinion resting on that data must be excluded.? In re
Ling, 193 F.3d 613, 697 (3d Cir. 1999). The Court properly limited the scope of Snook?s
testimony.

iv. Admission ofPlaians Expert Witness Testimony

Finally, Defendants argue for a new trial based on the Court permitting certain testimony

by Plaintist expert, Dr. Sarah Lageson. The Court ?rst considered this argument in a pretrial

Dunbar! opinion, Tana v. Bucks County, 2019 WI. 1900474 (ED. Pa. Apr. 29, 2019).7 At trial,

 

7 The Court determmed she could not testify ?as to the question of ?willfulness? itself? because Plaintiff failed to
provrde a reason why Lageson?s testlmony ?would hear on the willfulness of Defendants? actions.? Id at But
she was allowed to testify to the ?nature and extent of [the] victlm?s harm" as it related to man appropriate punitive
damage award.? [d (quotmg Lisbon Contractors, Inc, 521 Pa. 102 (1989)) In other words, 1fthe
Jury decided that the Defendants? actions were willful, their next order of business was to decide whether to award
$1,000 or $10,000 per violation or something In between. In deciding that number, it was useful to consider the

23

Case Document 369 Filed 10/04/19 Page 24 of 31

the Court limited Lageson?s testimony to the ?risk of harm? created by Defendants? misconduct.
Contrary to Defendants? assertions, Lageson did not testify to the nature and extent of individual
class members? harm. Rather, she testi?ed concerning the potential risk of harm and
stigmatization as a result of putting criminal history information on the internet. Lageson?s
testimony was elicited to show Defendants? awareness of that risk, which was relevant to the
jury?s punitive damages determination. The testimony therefore was relevant and satis?ed
Federal Rule of Evidence 702?s ?t requirement. See United States v. Velasquez, 64 F.3d 844,
850 (3d Cir. 1995) (?There must be a valid connection between the expertise in question and the
inquiry being made in the case?).

Admission of Lageson?s testimony was proper. Therefore, Defendants? motion for a new
trial on this basis shall be denied.

E. Motion for Remittitur

In the alternative to a request for a new trial, Defendants move for remittitur on the
ground that the jury?s award was excessive and inconsistent with the evidence. The verdict form
which was submitted to the jury read as follows:

1. Did the plaintiff and the class prove that the County committed a willful violation
of 

YES NO

If you answer no, please stop, sign and date this verdict sheet and return to the
court. If you answer yes, please proceed to the next question.

 

subjective awareness by Defendants of their violation of the CHRIA as well, as a general matter, of the harmful
consequences associated with a release of criminal history information.

24

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 25 of 31

2. What is the amount of punitive damages that you award to the plaintiff and each
member of the class?
(fill in amount of not less than $1,000 nor more than 
The jury answered ?yes" to the ?rst question?the plaintiff and the class proved that the
County committed a willful violation of the ?lled in an amount of $1,000 as the
amount of punitive damages to be awarded to the plaintiff and to each member of the class.
Despite the jury award being at the very low end of the damages that the jury was
required by the statute to award once it made the determination that Defendants violated the
Ii in, they were empowered to award up to $10,000 per violation but chose to award
$1,000, the lowest statutory argue that Plaintiff?s damages are ?grossly
excessive? because class-wide they could aggregate to an award of over $60 million (66,799
class members multiplied by Remittitur arguments, however, should be directed at the
jury verdict, not at a hypothetical aggregate amount. See 1 1 Wright Miller, Fed. Prac. 
Proc Civ. 2815 (3d ed.) (?If the trial court determines that the verdict in a case is excessive, it
may order a complete new trial or a new trial limited to the issue of damages?) (emphasis
added). Here, the jury?s verdict was an award of $1 ,000 for each violation. See Pa. C.S.A. 

1930 (?Whenever a penalty . . . is provided for the violation of a statute, such penalty . . . shall be

construed to be for each violation. 

 

3 Plaintiff argues, citing only one case, that Defendants waived any challenge to the verdict by submitting the
proposed verdict form that was ultimately used and failing to object to the verdict form "IMI?guments raised in
passing . . . but not squarely argued, are considered Waived.? John Wyeth Bro CIGNA In! Corp 19
F.3d 1076 6 (3d Ctr. 199?).

Even if, however, Defendants' challenge were waived, courts still consider remittitur arguments. See. a Wright 
Cacemrri, 201.5 WL 3654553, at *2l (MD. Pa. June I 1, EMS) (?Despite the fact that Defendants waived any
objection to the category of past medical damages being submitted to the Jury. the Court ?nds that the jury?s award
is so excesswe and beyond reasonable grounds that remittitur of this award is necessary").

9 It should be noted that since the class includes people whose information was gathered as far back as 1938, many
class members will be deceased or likely will be impossible to track down.

25

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 26 of 31

In essence, by arguing that the jury award of 1,000 per violation should be reduced,
Defendants are asking this Court to substitute its own judgment of what is an appropriate penalty
for a CHRJA violation for that of the legislature Ultimately, statutory penalties
are the product of legislative determination. The legislature has made clear that
statutory remedies are preferred over common law. See 1 Pa. C.S.A l504 (?In all cases where
a remedy is provided . . . or anything is directed to be done by any statute, the directions of the
statute shall be strictly pursued, and no penalty shall be in?icted, or anything done agreeably to
the common law, in such cases, further than shall be necessary for carrying such statute into
effect"); see also BW of North America, Inc. v. Gore, 517 1.1.5. 559, 583?84 (1996) (directing
reviewing courts to ?accord substantial deference to legislative judgments concerning
appropriate sanctions for the conduct at issue?) (internal quotations omitted).

Defendants have cited no authority to support the proposition that a federal court should
circumvent the expressed will of the state legislature. The cases that they do cite for the
proposition that courts in this Circuit ?routinely? reduce jury verdicts even where the damages
were statutorily authorized make the quite contrary point. In Burris v. Richards Paving, Inc,
472 F. Supp.2d 615, 620 (D. Del. 2007), the court reduced the plaintiff?s compensatory damages
to be ?consistent with the applicable statutory maximum.? In United States ex rel. Dunleavy v.
County ofDelaware, 2000 US. Dist. LEXIS 14980, at *29?31 (ED. Pa. Oct. 12, 2000), the
court declined to reduce the damages, noting that ?while a remittitur may be used to reduce an
unjusti?ed damage award it has not . . . been used to evade a statutory mandate . . . 3? Finally, in
Rush v. Scott Specialty Gases, 930 F. Supp 194, 201-02 (ED. Pa. 1996), the court reduced the
jury?s award by ten percent, but did so in reliance on due process cases, which are inapplicable

here. See in??a 28?29.

26

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 27 of 31

?Statutory damages serve the dual purposes of compensation and deterrence . . . 
Scny?'r Pub? Ltd. Chronicle Books, LLC, 2005 WL 6707'? (131.1). Pa. Jan. 11., 2005).
Furthermore, statutory damages ?remedy a wrong which would otherwise go unremedied if
actual damages could not be proven.? Raydiola Music v. Revelation Rob, inc, 729 F. Supp. 369,
375 (D. Del. 1990); see also Tana Iii, 862 F.3d at 305 (?Given the particular harms that can be
wrought by the release of someone?s criminal history information, there may be instances in
which an individual faces consequences beyond humiliation and embarrassment which may be
dif?cult or impossible to evaluate in monetary terms"); Bonus v. Restaurantcom, inc, 784 F.3d
918, 930 (3d Cir. 2015) (?We cannot disregard the legislature?s choice to award statutory
damages in the absence of actual damages"); Perrone v. General Motors Acceptance orp, 232
F.3d 433, 436 (5th Cir. 2000) damages are reserved for cases in which the damages
caused by a violation are small or dif?cult to ascertain?). Such penalties provide remedies for
individuals who would be unlikely to pursue them otherwise. In creating a private right of
action, the legislature also recognized that the state has insuf?cient manpower for enforcement,
and thus empowered individuals to act as private attorneys general. See Schnaii v. Amboy Nat.
Bank, 279 F.3d 205, 217r (3d Cir. 2002) (acknowledging that the government has ?limited
resources to devote to enforcement? and that ceding enforcement ?to individuals? may be more
cost effective). Statutory damages are thus the primary enforcement mechanism of the CHRIA,
and Defendants here were on notice of the consequences of a CHRIA violation.

Certainly, the concerns about aggregate awards are particularly acute in the class action
context when a defendant committed many violations of a statute against many plaintiffs. See
Parker v. Time Warner, 331 F.3d 13, 22 (2d Cir. 2013) (recognizing that ?[i]ssues arise from the

effects of combining a statutory scheme that imposes minimum statutory damages awards on a

27

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 28 of 31

per-consumer basis . . . with the class action mechanism that aggregates many claimsho?en
because there would otherwise be no incentive to bring an individual claim?). Not surprisingly,
large numbers of identical claims for small statutory penalty awards create large aggregate
recoveries. While the Court may ?nd the outcome here troubling, it will not go against the
express mandate of the legislature. Modi?cation of a state statute is the province
of the legislature, not the courts.

Given that backdrop, the role of the district court in considering Defendants? remittitur
request ?is to determine whether the jury?s verdict is within the con?nes set by state law, and to
determine, by reference to federal standards deveIOped under Rule 59, whether a new trial or
remittitur should be ordered.? Browning-Ferris Indus. v. Kelco Dr'sPosol, Inc, 492 US. 257,
279 (1989).10 The standard for remittitur is ?articulated in a number of Blokey v.
Continental Airlines, Inc 992 F. Supp. 731, 734 (DNJ. 1998), with both the 
Supreme Court and the Third Circuit setting a high bar for granting remittitur. Under
law, ?Li]udicial reduction of a jury award is approPriate only when the award is
plainly excessive and exorbitant. The question is whether the award of damages falls within the
uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense
of justice as to suggest that the jury was in?uenced by partiality, prejudice, mistake, or
corruption." Homes v. Raven Arms, 536 Pa. 452, 455 (1994). The Third Circuit has explained
that courts reduce damages awards in two circumstances: (1) to satisfy constitutional due process
concerns if the award is unconstitutionally excessive, or (2) if an award is unreasonable on the
facts of the case at hand. See Cortes, 617 F.3d at 715?16.

A due process argument is unavailing here in that this Court has already found that the

 

1" mistakenly apply only the federal standard, without reference to state law.

28

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 29 of 31

Due Process Clause protects persons, not governmental entities such as Bucks County. See Tana
I, 172 F. Supp.3d at 873. This compotts with Supreme Court and Third Circuit authority. See
South Carolina v. Katzenbach, 383 .S. 301, 323?24 (1966) ("The word ?person? in the context
of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of
interpretation, be expanded to encompass the States of the Union . . . v. Riley,
84 F.3d 125, 130 n.2 (3d Cir. 1996) (same); see also East St. Louis v. Circuit Court for Twentieth
Judicial ircait, 986 F.2d 1 142, 1144 (7th Cir. 1993) (holding that East St. Louis cannot invoke
the Due Process Clause?s protection because it is not a ?person? under the Fifth or Fourteenth
Amendment). Moreover, recent Supreme Court cases on the Due Process Clause have used the
penalties imposed by state legislatures as a barometer for awards that do not violate due process.
See BMW, 517 US. at 583*84 (legislative judgments are entitled to ?substantial deference");
State Farm Mat. Auto Ins. Co. v. Campbell, 538 .S. 408, 41 l? 2 (2003) (referencing a Utah
statute?s award of $10,000 per violation as a benchmark).

With respect to the question of whether the award is unreasonable given the facts at hand,
?[t]here must be a rational relationship between the specific injury sustained and the amount
awarded." Games, 823 F.2d at 773; see also Spence, 806 F.2d at 1201 (explaining that remittitur
is employed ?when the trial judge finds that a decision of the jury is clearly unsupported andfor
excessive?). Plaintiffs cite to another formulation of the remittitur test, which provides that
?where the verdict is so large as to shock the the Court must order the plaintiff ?to
remit the portion of the verdict in excess of the maximum amount supportable by the evidence or
if the remittitur [is] refused, to submit to a new trial.? Kazan v. Wolinski, 721 F.2d 91 l, 914 (3d
Cir. 1983). Defendants rely on the factors set out in Kirkbride, which include evaluating the

character of the tortious act, the nature and extent of the harm, and the wealth of the defendant.

29

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 104.

Regardless of which test applies, Defendants do not prevail under of them. First,
Defendants argue that no evidence was adduced at trial proving that they intended to violate the
CIIRJA, but as set forth supra Sections it was. See Spence, 806 F.2d at 120i (given
the evidence Plaintiffs presented at trial, the jury's award was not ?clearly unsupported?). Next,
Defendants revive their argument that punitive damages are excessive given that no
compensatory damages were awarded in this case; but this Court and the Third Circuit have
already considered and rejected this argument.? Finally, Defendants urge the Court to consider
that deterring Bucks County is not necessary and that allowing the verdict to stand would create
a burden on taxpayers. While there is no doubt that the taxpayers of Bucks County will be
negatively impacted by the jury?s verdict, one could argue that Defendants should have taken
their interests into consideration before uploading the information onto the 1LT.12

Contrary to Defendants? argument that the jury?s award violates the Third Circuit?s
directive that ?any punitive damages imposed . . . be reasonable,? Take 111, 862 F.3d at 305 n.8,
the jury awarded the minimum statutory damages authorized by the legislature in
the CliRlA. See 13 Pa. .S.A. 9183(b)(2). By awarding an amount within the statutory range,

thcjury ensured there was a ?rational relationship between the speci?c injury sustained and the

 

1' The Third Circuit prewously ruled: ?In the penalties provismn of CHRIA, the Legislature explicitly
provided for the imposition of punitive damages without Including any language making the recovery of
compensatory damages a pre-requisite for their imposition." Take 862 F.3d at 304 05. The cases Defendants
cite confirm as well. See, a . Kirkortde, 521 Pa. at 102 (?[eren though compensatory damages had not been
awarded, punitive damages could be appropriate?), Spragae Walter, 441 Pa. Super 1, 72 {1995) (?Under
law, punitive damages need bear no proportional relationship to the compensatory damages awarded
In a particular 521 Pa. at 103?04)

12 In support, Defendants cite desisions from other state courts, which are not binding on this court, and cases
brought under the Telephone Consumer Protection Act with due process claims, see Golan FreeEars. com, 930

3d 950, 962 (8th Cir. 2019); Maryland Universal Electrons. Inc 862 F. Sup-p.2d 45?, 465 (D. Md. 20l2);
Untted??mres Dish Nenvork LLC, 256 F. Supp.3d 810, 906 (C. D. 11]. 2017). As the Court has already addressed,
a due process claim is not available here. To the extent Defendants rely on Femgold SEPTA, 517 Add 1270 (Pa.
1986}, the Third Circuit has not found that oplnion perSuasive 111 this case. See- Taha 362 3d at 306

30

Case 2:12-cv-06867-WB Document 369 Filed 10/04/19 Page 31 of 31

amount awarded." See Gumbs, 823 F.2d at 773. Given the dictates and the set of circumstances
at issue here, an award of $1 .000 per violation?the minimum award required under the statute
for a willful violation?does not ?Shock the conscience" and is not ?plainly excessive and
exorbitant.? Kazan, T21 F.2d at 914; Harries, 536 Pa. at 455.

Accordingly, Defendants? request for remittitur shall be denied. An appropriate order

follows.

BY HE CO

I

WENDY BEETLESTONE, J.

 

October 4, 2019

31