Freund v. Nycomed Amersham, 326 F.3d 1070 (9th Cir. 2003)

Jeffrey R. Freund worked as a pharmacist in Nycomed’s nuclear pharmacy in San Diego. After a few years of employment, Freund’s relationship with his supervisor, Mike Wakefield, “soured.” Freund lodged complaints about staffing, expressing his concern that overwork of staff members increased the probability that they would make a mistake that would endanger their or their customers’ safety. Freund also complained that another employee had pierced his own hand with a needle, which caused blood to spill in the laboratory. Wakefield subsequently gave Freund a negative performance evaluation and a written warning for having an improper attitude. Soon thereafter, conflicts arose between Freund and other management employees, including the human resources representative, culminating in the termination of Freund’s employment for “disruptive behavior.” Freund sued Nycomed for wrongful termination in violation of public policy under Labor Code § 6310, which prohibits terminating an employee for raising bona fide complaints relating to workplace health or safety. At trial, the jury awarded Freund $20,000 in emotional distress damages, $1.13 million in compensatory damages and $1.15 million in punitive damages. In response to Nycomed’s motion, the district court overturned the punitive damages award. On appeal, the Ninth Circuit affirmed the judgment in favor of Freund, holding that he had sufficiently proved a violation of the public policy embodied in the statute, but reversed the district court’s order denying punitive damages to Freund on the grounds that Nycomed had waived its right to raise the issue of the lack of requisite malice in its post-trial motion and, further, that there was sufficient evidence of Nycomed’s financial condition to support the award. The Court further held that Freund was not entitled to recover his attorneys’ fees from Nycomed.