Hardenbrook

MEMORANDUM *

Darel Hardenbrook brought suit against UPS alleging claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful termination in violation of public policy. Harden-brook’s wrongful termination claim proceeded to trial and the jury returned an award of $1,436,367 in front pay and $40,000 in back pay, for a total of $1,476,367. The district court denied UPS’s motion for a new trial conditioned on Hardenbrook accepting a remittitur in the amount of $713,169 — or $673,169 in front pay and $40,000 in back pay, which he did. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part and reverse and remand in part.

UPS argues that the district court erred in offering Hardenbrook a remittitur that includes twenty-seven years of front pay. The proper amount of a remittitur is the maximum amount sustainable by the evidence. See D & S Redi-Mix v. Sierra Redi-Mix & Contracting Co., 692 F.2d 1245, 1249 (9th Cir.1982). “When considering an award of damages for lost future benefits, the question is whether the plaintiff has proven the damages relating to future losses with reasonable certainty.” O’Dell v. Basabe, 119 Idaho 796…

concurring in part and dissenting in part.

I concur in most of the panel’s determinations in the accompanying memorandum disposition. However, I do not think it was an abuse of discretion for the district court to ratify the jury’s use of the plaintiff’s proposed zero percent “discount rate” for future stock-based awards. Thus, I would affirm that determination rather than remand for reconsideration.

I agree with the panel and the district court that the zero percent discount rate *48 proffered by the plaintiffs expert is puzzling because it “seems to ignore the time value of money.” But when Harden-brook’s expert offered this testimony, UPS did not object nor move to strike the evidence as irrelevant because it was absurd. Instead, UPS put on the stand an opposing expert who disagreed with the zero percent rate and offered an alternative rate of 10.5%. The problem with UPS’s alternative, though, was that, according to the district court, there was “no testimony or evidence as to the basis for the ‘UPS discount rate’ figure.”

Thus the jury was offered two choices. Hardenbrook’s zero percent rate seems implausible but was at least supported by some evidence, however unconvincing…