Jury Finds for Whistleblower, published in Maine Lawyers Review by Jo Lynn Southard
A jury in Washington County Superior Court unanimously reached a verdict in 30 minutes on March 21 in favor of Richard Hickson, who was fired for sending an email to Governor John Baldacci about safety issues at a paper mill. Governor Baldacci had just visited the mill, and Hickson sent an email to the governor’s website noting that several members of the governor’s party, and the governor himself, were not wearing proper footwear or respirators while touring the mill.
Hickson, who was represented by David Webbert of Johnson & Webbert in Augusta, was fired and filed suit under the Whistleblower Protection Act.
“This was a good case to emphasize the importance” of the Whistleblower Protection Act, Webbert said. He added that he believed it was the largest civil rights verdict ever rendered in Washington County, with his client awarded $175,000 in punitive damages, $35,000 in nonwage compensatory damages, back pay damages of about $7,000, and attorney fees.
The plaintiff found a new job at higher pay within six month of his firing, which explains the relatively low back pay award. In an email, defendant’s attorney AJ Greif, of Gilbert & Greif in Bangor, said, “We have already filed a renewed motion for judgment as a matter of law …. An appeal is certain and we hope that it is plaintiff who appeals from the trial court, posttrial, entering judgment for defendant.”
Greif continued, “We feel extremely confident that the Law Court will ultimately rule that it meant what it said in Costain v. Sunbury Primary Care, P.A.: that the whistleblowing must. be about a violation ‘committed or practiced by that employer.’Mr. Hickson readily admitted that any safety violation he perceived was by officials at Domtar [Maine, LLC] over whom Vescom had no control. He admitted that Vescom did nothing wrong that day.
“As we conceded to the jury and the court that the email to the Governor led to the firing and the jury was never instructed that the whistleblowing had to be about a ‘violation committed or practiced by that employer,’ we were deprived of any defense. The jury had to decide whether Hickson had raised a safety concern and whether he got fired for doing that. “For them it was a no-brainer, as they were never told what the law actually required. “The jury still deliberated for 45 minutes.”
Webbert replied, “Pamela Treadwell, the Vescom official who fired Mr. Hickson and who is the top management official for the Company and who reports only to a passive owner, testified under oath that the safety rule for visitors that Mr. Hickson relied on in his whistleblower email to the Governor was Vescom’s ‘bible’, Vescom’s ‘responsibility’ to enforce for the client, and ‘the rules that Vescom lives by.”
He continued, “Justice Murray already carefully considered and rejected Defendant’s reliance on Costain when the court rejected that argument in its ruling denying summary judgment. …As Justice Murray ruled on summary judgment, Costain is not on point because it did not involve retaliation for a whistleblower report about unsafe conditions in Plaintiff’s workplace but instead an employee who participated in a legal proceeding that had nothing to do with the employer who fired the Plaintiff.”
Webbert was assisted at trial by his daughter, Johnson & Webbert Legal Assistant Theresa Katler, son-in-law, Max Katler (a third-year student at Maine Law), and son, Jacob Webbert-who was on spring break. His son-in-law setup equipment that allowed the jury to see videotaped depositions. “It’s probably the first time in Washington County that video depositions were shown during trial,” Webbert said.
“It’s rare in this state; most courthouses don’t have the technology.” However, Webbert said, “The technology really connected with the jury. It’s so much more powerful to let the jury see the evidence. It may become a new requirement in trials.”