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Clifford v. American Drug Stores8/22/2005
ford, her anxiety, depression, severe panic attacks, debilitating migraines, dizziness, and nausea may have been noticed by them as they engaged in these actions. Indeed, since the first jury found that Sav-On's conduct was carried out with the intent to injure Clifford, or was despicable and carried on with a willful and conscious disregard of her rights or safety, it is reasonable to infer that the jury did find that Weber's close scrutiny revealed her vulnerable emotional condition.
Nevertheless, Sav-On was allowed to convince the second jury that all of its managers' conduct was carried on without any knowledge of the effect it was having on Clifford, and indeed, without having any effect on her at all, as far as the second jury could tell. This allowed Sav-On's counsel to argue to the jury that Weber's actions were not reprehensible, because he did not treat Clifford any differently than he treated other managers. Without evidence of what effect Weber's treatment was having upon her and evidence from which it could reasonably be inferred that he knew what effect it was having, the second jury may have found his conduct not to have been reprehensible at all, let alone reprehensible to a degree sufficient to award punitive damages.
A judgment may be reversed for instructional error or the erroneous exclusion of evidence in a civil case, only if "after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, ยง 13.)
"Instructional error in a civil case is prejudicial `where it seems probable' that the error `prejudicially affected the verdict.' [Citations.] Of course, that determination depends heavily on the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury. [ ] But the analysis cannot stop there. Actual prejudice must be assessed in the context of the individual trial record. . . . hen deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 580-581, fn. omitted.)
Clifford's ability to put her full case before the jury was hampered by the exclusion of all evidence of her particular emotional vulnerability and Sav-On's understanding of her vulnerability when it retaliated against her, when it failed to make the workplace safe from retaliation, and when it failed to implement its sexual harassment policy in such a way that would have protected her. That state of the evidence and the erroneous instructions allowed the second jury to decide anew whether there had been sexual harassment or retaliation, and it all
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